



































































































































































































































































































































Glass 

Book 


P* 

















58th Congress, ) SENATE. 

Special Session, j 



COMPILATION 


SENATE ELECTION 

FROM 


1789 to 1885. 

BY 

GEORGE S. TAFT, 

Clerk to Committee on Privileges and Elections, E. S. 


CONTINUED TO MARCH 8. 1898, 

BY 

GEORGE P. FURBER, 

Clerk to Committee on Privileges awl Elections, U. S. 

CONTINUED TO MARCH 8. 1908, 

BY 

GEORGE M. BUCK, 

Clerk to Committee on Privileges and Elections, U. S. 


WASHINGTON: 

l 

GOVERNMENT PRINTING OFFICE. 

1903. 


j Document 

\ No. 11. 


CASES 


Senate. 


Senate. 


Senate. 










\ 




\ 




M 

Ms, 


3 

SENATE. 


58th Congress, ) 
Special Session, j 


j Document 

( No. 11. 


COMPILATION 


OF 


*7 


SENATE ELECTION CASES 


1789 to 1885 . 

BY 

GEORGE S. TAFT, 

Clerk to Committee on Privileges and Elections, U. S. Senate. 


CONTINUED TO MARCH 8, 1893, 

BY 

GEORGE P. FURBER, 

Clerk to Committee on Privileges and Elections, U. S. Senate. 


CONTINUED TO MARCH 3, 1903, 

BY 

GEORGE M. BUCK, 

Clerk to Committee on Privileges and Elections, U. S. Senate. 


WASHINGTON: 

GOVERNMENT PRINTING OFFICE. 

1903. 




























* 



« . 

< 












PREFACE. 


Two compilations of Senate election cases have been made, one by 
Messrs. Clarke and Hall, consisting of cases from 1789 to 1834, and one 
by Mr. D. W. Bartlett, consisting of cases from 1834 to 1865. Each of 
these compilations made up but a small part of volumes containing in 
addition'the contested-election cases in the House of Representatives 
for the respective periods. This volume contains the Senate cases from 
1789 to December, 1885. I have not made use of the early compila¬ 
tions referred to, for the reason that, inasmuch as this volume is con¬ 
fined to Senate cases and so more limited in its scope, I have been able 
to take up more cases of minor importance than are reported in the 
early compilations, and to include in the important cases more of the 
matter comprising their history than is found in the reports of the same 
cases in the early compilations. 

The volume contains not only contested cases, strictly speaking, but 
all cases in which the right to a seat of any person who has presented 
credentials has been questioned in such a manner that the Senate has 
deemed proper to investigate or to discuss the question. 

The general plan in making up the cases has been to give the reports 
of committees, majority and minority, in all cases in which there were 
reports; transcripts from the journals of the proceedings of the Senate 
relating to them; and inserted references to the debates of each day. 
In those cases in which there were no reports, extracts from debates 
have usually been given. In a few of the early cases, in which the 
reported debates are brief, the whole debate is given. Each case is 
accompanied by a headnote stating the points in question and the action 
of the Senate. 

I have separated into a class by themselves those cases involving the 
question of the powers of governors of States to fill vacancies; and in 
connection with these cases is given a list, prepared from the creden¬ 
tials on file, of all the appointments of Senators by governors. It was 
my original purpose to make a separate class of the expulsion cases, 
and to make certain other divisions into classes, but as certain of the 
cases involve several different questions, it seemed better to arrange 
them all, with the exception of the class first referred to, chronologically. 

An introduction contains extracts from the debates in the Federal 
Convention of 1787, taken from the Madison Papers, on such parts of 
the Constitution as relate to the election and qualifications of Senators; 
extracts from the Constitution relating to the same; and the act of 
July 26, 1866, relating to the election of Senators. 

GEORGE S. TAFT. 


Washington, December 1 , 1885. 


in 


































































' 










PREFACE TO THE SECOND EDITION. 


In preparing this second edition of the Senate Election Cases I have 
done little more than to continue the work of Mr. Taft. The cases 
which have arisen since December, 1885, have been added in their 
chronological order, with the exception of the case of Mr. Chilton, 
which has been inserted with the “Cases concerning the power of execu¬ 
tives of States to fill vacancies.” In one respect I have varied Mr. 
Taft’s arrangement. I have followed in part what he states in his 
preface was his original plan, and have placed in a group by them¬ 
selves the cases of expulsion, as they differ distinctly from the cases in 
which the right to a seat is contested. The form of the reports of the 
cases is the same as that adopted in the first edition. The index has 
been carefully revised and enlarged, thereby, it is hoped, increasing 
the value of the collection very materially. 

GEORGE P. FURBER. 

Washington, D. C., March 3, 1893. 

v 



PREFACE TO THE THIRD EDITION. 


In the preparation of the third edition of the Senate Election Cases 
the method and order adopted by Mr. Taft and continued by Mr. 
Furber have been followed in the main. The cases arising since March 
3, 1893, have been grouped in two divisions: “ Cases concerning the 
power of executives of States to fill vacancies,” and “Miscellaneous 
cases,” as was done by Mr. Taft in the original compilation and after¬ 
wards by Mr. Furber in the additions made by him. None of the 
cases first appearing in this edition involved the question of the 
“Expulsion of Senators.” 

Only a few changes have been made in the form of the reports of 
cases from that adopted in the first and second editions, and these 
changes will, it is believed, at once commend themselves to those who 
may have occasion to consult the official records referred to in the book. 
The index has been carefully revised and considerably enlarged by the 
insertion of additional titles and cross references. 

GEORGE M. BUCK. 

Washington, D. C., March 3, 1903. 


VI 



INTRODUCTION 


EXTRACTS FROM THE DEBATES IN THE FEDERAL CON¬ 
VENTION. 

PORTIONS OF THE REPORT OF THE COMMITTEE OF DETAIL, MADE 

AUGUST 6, 1787, RELATING TO THE ELECTION AND QUALIFICA¬ 
TIONS OF SENATORS. 

Art. V. —Sect. 1. The Senate of the United States shall be chosen 
by the legislatures of the several States. Each legislature shall choose 
two members. Vacancies may be supplied by the executive until the 
next meeting of the legislature. Each member shall have one vote. 

Sect. 2. The Senators shall be chosen for six years; but immediately 
after the first election they shall be divided, by lot, into three classes, 
as nearly as may be, numbered one, two, and three. The seats of the 
members of the first class shall be vacated at the expiration of the 
second year; of the second class at the expiration of the fourth year; 
of the third class at the expiration of the sixth year; so that a third 
part of the members may be chosen every second year. 

Sect. 3. Every member of the Senate shall be of the age of thirty 
years at least; shall have been a citizen in the United States for at 
least four years before his election; and shall be, at the time of his 
election, a resident of the State for which he shall be chosen. 

Sect. 4. The Senate shall choose its own President and other officers. 

Art. VI. —Sect. 1. The times, aud places, and manner of holding 
the elections of the members of each House shall be prescribed by the 
legislature of each State; but their provisions concerning them may, 
at any time, be altered by the Legislature of the United States. 

Sect. 2. The Legislature of the United States shall have authority to 
establish such uniform qualifications of the members of each House 
with regard to property as to the said legislature shall seem expedient. 

Sect. 3. In each House a majority of the members shall constitute a 
quorum to do business; but a smaller number may adjourn from day 
to day. 

Sect. 4. Each House shall be the judge of the elections, returns, and 
qualifications of its own members. 

Sect. 5. Freedom of speech and debate in the legislature shall not be 
impeached or questioned in any court or place out of the legislature; 
and the members of each House shall, in all cases, except treason, 
felony, and breach of the peace, be privileged from arrest during their 
attendance at Congress and in going to and returning from it. 

Sect. 6 . Each House may determine the rules of its proceedings; 
may punish its members for disorderly behavior; and may expel a 
member. 

Sect. 7. The House of Representatives, and the Senate when it shall 
be acting in a legislative capacity, shall keep a journal of their proceed- 

vu 



VIII 


SENATE ELECTION CASES. 


ings; and shall, from time to time, publish them; and the yeas and 
nays of the members of each House on any question shall, at the desire 
of one-fifth part of the members present, be entered on the Journal. 

Sect. 8. Neither House, without the consent of the other, shall ad¬ 
journ for more than three days, nor to any other place than that at 
which the two Houses are sitting. But this regulation shall not extend 

to the Senate when it shall exercise the powers mentioned in the- 

article. 

Sect. 9 . The members of each House shall be ineligible to, and inca¬ 
pable of holding, any office under the authority of the United States 
during the time for which they shall respectively be elected; and the 
members of the Senate shall be ineligible to, and incapable of hold¬ 
ing, any such office for one year afterwards. 

Sect. 10. The members of each House shall receive a compensation 
for their services, to be ascertained and paid by the State in which they 
shall be chosen. 


DEBATES. 


Thursday, August 9 , 1787 . 

Article V, section 1, was then taken up. 

Mr. Wilson objected to vacancies in the Senate being supplied by the 
executives of the States. It was unnecessary, as the legislatures will 
meet so frequently. It removes the appointment too far from the peo¬ 
ple, the executives in most of the States being elected by the legisla¬ 
tures. As he had always thought the appointment of the executive by 
the legislative department wrong, so it was still more so that the execu¬ 
tive should elect into the legislative department. 

Mr. Bandolph thought it necessary, in order to prevent inconvenient 
chasms in the Senate. In some States the legislatures meet but once 
a year. As the Senate will have more power, and consist of a smaller 
number than the other House, vacancies there will be of more conse¬ 
quence. The executives might be safely trusted, he thought, with the 
appointment for so short a time. 

Mr. Ellsworth. It is only said that the executive may supply va¬ 
cancies. When the legislative meeting happens to be near the power 
will not be exerted. As there will be but two members from a State 
vacancies may be of great moment. 

Mr. Williamson. Senators may resign or not accept. This provi¬ 
sion is therefore absolutely necessary. 

On the question for striking out “ vacancies shall be supplied by the 
executives”— 

Pennsylvania, ay, 1; New Hampshire, Massachusetts, Connecticut, 
New Jersey, Virginia, North Carolina, South Carolina, Georgia, no, 8: 
Maryland, divided. 

Mr. Williamson moved to insert after “ vacancies shall be supplied 
by the executives,” the words, “ unless other provisions shall be made 
by the legislature” (of the State). 

Mr. Ellsworth. He was willing to trust the legislature or the exec¬ 
utive of a State, but not to give the former a discretion to refer appoint¬ 
ments for the Senate to whom they pleased. 

On the question on Mr. Williamson’s motion— 

Maryland, North Carolina, South Carolina, Georgia, ay, 4; New Hamp¬ 
shire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Vir¬ 
ginia, no, 6. 




INTRODUCTION. 


IX 


Mr. Madison, in order to prevent doubts whether resignations could 
be made by Senators, or whether they could refuse to accept, moved to 
strike out the words after “ vacancies,” and insert the words, u happen¬ 
ing by refusals to accept, resignations, or otherwise, may be supplied 
by the legislature of the State in the representation of which such 
vacancies shall happen, or by the executive thereof until the next meet¬ 
ing of the legislature." 

Mr. Gouverneur Morris. This is absolutely necessary; otherwise, 
as members chosen, into the Senate are disqualified from being ap¬ 
pointed to any office by section 9 of this article, it will be in the power 
of a legislature, by appointing a man a Senator against his consent, to 
deprive the United States of his services. 

The motion of Mr. Madison was agreed to nem. con. 

Mr. Eandolph called for a division of the section, so as to leave a dis¬ 
tinct question on the last words, u each member shall have one vote.” 
####### 

On the question on the first section, down to the last sentence— 

New Hampshire, Connecticut, New Jersey, Delaware, Maryland, Vir¬ 
ginia, Georgia, ay, 7; Massachusetts, Pennsylvania, North Carolina, 

no, 3; South Carolina, divided. (In the printed Journal, Pennsyl¬ 
vania, ay.) 

* # * * • • # 

Article V, section 2, was then taken up. 

Mr. Gouverneur Morris moved to insert, after the words, u immedi¬ 
ately after,” the following: u they shall be assembled inconsequence 

of, ” which was agreed to nem . con., as was then the whole section. 

Article V, section 3, was then taken up. 

Mr. Gouverneur Morris moved to insert fourteen, instead of four 
years’ citizenship as a qualification for Senators; urging the danger of 
admitting strangers into our public councils. 

Mr. Pinckney seconded him. 

Mr. Ellsworth was opposed to the section, as discouraging meritorious 
aliens from emigrating to this country. 

Mr. Pinckney. As the Senate is to have the power of making treaties 
and managing our foreign affairs, there is peculiar danger, and impro¬ 
priety in opening its doors to those who have foreign attachments. 
He quoted the jealousy of the Athenians on this subject, who made it 
death for any stranger to intrude his voice into their legislative pro¬ 
ceedings. 

Colonel Mason highly approved of the policy of the motion. Were 
it not that many not natives of this country had acquired great credit 
during the Eevolution, he should be for restraining the eligibility into 
the Senate to natives. 

Mr. Madison was not averse to some restrictions on this subject, but 
could never agree to the proposed amendment. He thought any restric¬ 
tion, however, in the Constitution , unnecessary and improper—unneces¬ 
sary, because the national Legislature is to have the right of regulating 
naturalization, and can by virtue thereof fix different periods of resi¬ 
dence as conditions of enjoying different privileges of citizenship; im¬ 
proper, because it will give a tincture of illiberality to the Constitution; 
because it will put it out of the power of the national Legislature, even 
by special acts of naturalization, to confer the full rank of citizens on 
meritorious strangers, and because it will discourage the most desirable 
class of people from emigrating to the United States. Should the pro¬ 
posed Constitution have the intended effect of giving stability and repu¬ 
tation to our Government, great numbers of respectable Europeans, men 


X 


SENATE ELECTION CASES. 


who love liberty and wish to partake its blessings, will be ready to 
transfer their fortunes hither. All such would feel the mortitication of 
being marked with suspicious incapacitations, though they should not 
covet the public honors. He was not apprehensive that any dangerous 
number of strangers would be appointed by the State legislatures if they 
were left at liberty to do so, nor that foreign powers would make use 
of strangers as instruments for their purposes. Their bribes would be 
expended on men whose circumstances would rather stifle than excite 
jealousy and watchfulness in the public. 

Mr. Butler was decidedly opposed to the admission of foreigners 
without a long residence in the country. They bring with them not 
only attachments to other countries, but ideas of government so dis¬ 
tinct from ours that in every point of view they are dangerous. He 
acknowledged that if he himself had been called into public life within 
a short time after his coming to America, his foreign habits, opinions, 
and attachments would have rendered him an improper agent in public 
affairs. He mentioned the great strictness observed in Great Britain 
on this subject. 

Hr. Franklin was not against a reasonable time, but should be very 
sorry to see anything like illiberality inserted in the Constitution. The 
people in Europe are friendly to this country. Even in the country 
with which we have been lately at war we have now and had during 
the war a great many Mends, not only among the people at large, but 
in both houses of Parliament. In every other country in Europe all 
the people are our friends. We found in the course of the Revolution 
that many strangers served us faithfully, and that many natives took 
part against their country. When foreigners, after looking about for 
some other country in which they can obtain more happiness, give a 
preference to ours, it is a proof of attachment which ought to excite 
our confidence and affection. 

Mr. Randolph did not know but it might be problematical whether 
emigrations to this country were, on the whole, useful, or not, but he 
could never agree to the motion for disabling them, for fourteen years, 
to participate in the public honors. He reminded the convention of 
the language held by our patriots during the Revolution, and the prin¬ 
ciples laid down in all our American constitutions. Many foreigners 
may have fixed their fortunes among us under the faith of these invi¬ 
tations. All persons under this description, with all others who would 
be affected by such a regulation, would enlist themselves under the 
banners of hostility to the proposed system. He would go as far as 
seven years, but no farther. 

Mr. Wilson said he rose with feelings which were perhaps peculiar; 
mentioning the circumstance of his not being a native, and the possi¬ 
bility, if the ideas of some gentlemen should be pursued, of his being 
incapacitated from holding a place under the very Constitution which 
he had shared in the trust of making. He remarked the illiberal com¬ 
plexion which the motion would give to the system, and the effect 
which a good system would have in inviting meritorious foreigners 
among us, and the discouragement and mortification they must feel from 
the degrading discrimination now proposed. He had himself experi¬ 
enced this mortification. On his removal into Maryland he found him¬ 
self, from defect of residence, under certain legal incapacities which 
never ceased to produce chagrin, though he as suredly did not desire, 
and would not have accepted, the offices to which they related. To be 
appointed to a place may be a matter of indifference. To be incapable 
of being appointed is a circumstance grating and mortifying. 


INTRODUCTION. 


XI 


Mr. Gouverneur Morris. The lesson we are taught is that we 
should be governed as much by our reason and as little by our feelings 
as possible. What is the language of reason on this subjects That we 
should not be polite at the expense of prudence. There was a modera¬ 
tion in all things. It is said that some tribes of Indians carried their 
hospitality so far as to offer to strangers their wives and daughters. 
Was this a proper model for us? He would admit them to his house, 
he would invite them to his table, would provide for them comfortable 
lodgings, but would not carry the complaisance so far as to bed them 
with his wife. He would let them worship at the same altar, but did 
not choose to make priests of them. He ran over the privileges which 
emigrants would enjoy among us, though they should be deprived of 
that of being eligible to the great offices of Government; observing that 
they exceeded the privileges allowed to foreigners in any part of the 
world; and that as every society, from a great nation down to a club, 
had the right of declaring the conditions on which new members should 
be admitted, there could be no room for complaint. As to those philo¬ 
sophical gentlemen, those citizens of the world, as they called them¬ 
selves, he owned he did not wish to see any of them in our public 
councils. He would not trust them. The men who can shake off their 
attachments to their own country can never love any other. These 
attachments are the wholesome prejudices which uphold all govern¬ 
ments. Admit a Frenchman into your Senate, and he would study to 
increase the commerce of France; an Englishman, and he will feel an 
equal bias in favor of that of England. It has been said that the leg¬ 
islatures will not choose foreigners, at least improper ones. There was 
no knowing what legislatures would do. Some appointments made by 
them proved that everything ought to be apprehended from the cabals 
practiced on such occasions. He mentioned the case of a foreigner 
who left this State in disgrace, and worked himself into an appointment 
from another to Congress. 

On the question on the motion of Mr. Gouverneur Morris to insert 
fourteen in place of four years— 

New Hampshire, New Jersey, South Carolina, Georgia, ay, 4; Mas¬ 
sachusetts, Connecticut, Pennsylvania, Delaware, Maryland, Virginia, 
North Carolina, no, 7. 

On the question for thirteen years, moved by Mr. Gouverneur Mor¬ 
ris, it was negatived, as above. 

On ten years, moved by General Pinckney, the votes were the same. 

Dr. Franklin reminded the convention that it did not follow, from an 
omission to insert the restriction in the Constitution, that the persons 
in question would be actually chosen into the legislature. 

Mr. Butledge. Seven years of citizenship have been required for 
the House of Bepresentatives. Surely a longer time is requisite for 
the Senate, which will have more power. 

Mr. Williamson. It is more necessary to guard the Senate in this 
case than the other House. Bribery and cabal can be more easily 
practiced in the choice of the Senate, which is to be made by the legis¬ 
latures, composed of a few men, than of the House of Bepresentatives, 
who will be chosen by the people. 

Mr. Bandall will agree to nine years, with the expectation that it will 
be reduced to seven, if Mr. Wilson’s motion to reconsider the vote fix¬ 
ing seven years for the House of Bepresentatives should produce a 
reduction of that period. 

On the question for nine years— 

New Hampshire, New Jersey, Delaware, Virginia, South Carolina, 


XII 


SENATE ELECTION CASES. 


Georgia, ay, 6; Massachusetts, Connecticut, Pennsylvania, Maryland, 
no, 4; North Carolina, divided. 

The term “resident” was struck out, and “inhabitant” inserted 
nem. con. 

Article Y, section 3, as amended, was then agreed to nem. con. (198). 

Article Y, section 4, was agreed to nem. con. 

Article YI, section 1, was then taken up. 

Mr. Madison and Mr. Gouverneur Morris moved to strike out “ each 
House,” and to insert “the House of Bepresentatives”; the right of 
the legislatures to regulate the times and places, &c., in the election of 
Senators being involved in the right of appointing them; which was 
disagreed to. 

A division of the question being called for, it was taken on the first 
part down to “but their provisions concerning,” &c. 

The first part was agreed to nem. con. 

Mr. Pinckney and Mr. Butledge moved to strike out the remaining 
part, viz, “but their provisions concerning them may at any time be 
altered by the Legislature of the United States.” The States, they 
contended, could and must be relied on in such cases. 

Mr. Gokham. It would be as improper to take this power from the 
the national Legislature as to restrain the British Parliament from 
regulating the circumstances of elections, leaving this business to the 
counties themselves. 

Mr. Madison. The necessity of a general government supposes that 
the State legislatures will sometimes fail or refuse to consult the com¬ 
mon interest at the expense of their local convenience or prejudices. 
The policy of referring the appointment of the House of Bepresentatives 
to the people, and not to the legislatures of the States, supposes that 
the result will be somewhat influenced by the mode. This view of the 
question seems to decide that the legislatures of the States ought not 
to have the uncontrolled right of regulating the times, places, and 
manner of holding elections. These were words of great latitude. It 
was impossible to foresee all the abuses that might be made of the dis¬ 
cretionary power. Whether the electors should vote by ballot, or viva 
voce , should assemble at this place or that place, should be divided 
into districts or all meet at one place, should all vote for all the Bep¬ 
resentatives or all in a district vote for a number allotted to the dis¬ 
trict—these, and many other points, would depend on the legislatures, 
and might materially affect the appointments. Whenever the State 
legislatures had a favorite measure to carry they would take care so to 
mold their regulations as to favor the candidates they wished to suc¬ 
ceed. Besides, the inequality of the representation in the legislatures 
of particular States would produce a like inequality in their representa¬ 
tion in the national Legislature, as it was presumable that the coun¬ 
ties having the power in the former case would secure it to themselves 
in the latter. What danger could there be in giving a controlling 
power to the national Legislature ? Of whom was it to consist ? First, 
of a Senate to be chosen by the State legislatures. If the latter, 
therefore, could be trusted, their representatives could not be dangerous. 
Secondly, of Bepresentatives elected by the same people who elect the 
State legislatures. Surely, then, if confidence is due to the latter, it 
must be due to the former. It seems as improper in principle, though 
it might be less inconvenient in practice, to give to the State legisla¬ 
tures this great authority over the election of the Bepresentatives of 
the people in the general legislature as it would be to give to the latter 
a like power over the election of their representatives in the State 
legislatures. 


INTRODUCTION. 


XIII 


Mr. Kino. If this power be not given to the national Legislature, 
their right of judging of the returns of their members may be frus¬ 
trated. No probability has been suggested of it£ being abused by them. 
Although this scheme of erecting the General Government on the 
authority of the State legislatures has been fatal to the Federal estab¬ 
lishment, it would seem as if many gentlemen still foster the dangerous 
ideas. 

Mr. Gouverneur Morris observed that the States might make false 
returns, and then make no provisions for new elections. 

Mr. Sherman did not know but it might be best to retain the clause, 
though he had himself sufficient confidence in the State legislatures. 

The motion of Mr. Pinckney and Mr. Rutledge did not prevail. 

The word “respectively” was inserted after the word “State.” 

On the motion of Mr. Bead, the word “their” was struck out, and 
“regulations in such cases” inserted, in place of “provisions concern¬ 
ing them”—the clause then reading, “but regulations, in each of the 
foregoing cases, may, at any time, be made or altered by the Legisla¬ 
ture of the United States.” This was meant to give the national Leg¬ 
islature a power not only to alter the provisions of the States, but to 
make regulations in case the States should fail or refuse altogether. 
Article VI, section 1, as thus amended, was agreed to nem. con. (199). 

Friday, August 10 , 1787. 

[On the question of agreeing to section 2, Article YI, the ayes were 
3, the noes 7. The debate is here omitted.] 

[Section 3 of Article YI was amended and agreed to. The debate 
is here omitted.] 

Sections 4 and 5 of Article YI were then agreed to nem. con. 

Mr. Madison observed that the right of expulsion (Article YI, sec¬ 
tion 6) was too important to be exercised by a bare majority of a quorum, 
and in emergencies of faction might be dangerously abused. He moved 
that “with the concurrence of two-thirds” might be inserted between 
“ may” and “expel.” 

Mr. Randolph and Mr. Mason approved the idea. 

Mr. Gouverneur Morris. This power may be safely trusted to a 
majority. To require more may produce abuses on the side of the 
minority. A few men, from factious motives, may keep in a member 
who ought to be expelled. 

Mr. Carroll thought that the concurrence of two-thirds, at least, 
ought to be required. 

On the question requiring two-thirds in cases of expelling a member, 
10 States were in the affirmative; Pennsylvania, divided. 

Article YI, section 6, as thus amended, was then agreed to nem. con. 

( 202 ). 

[Section 7 of Article YI was amended and agreed to. The debate 
is here omitted.] 

Saturday, August 11,1787. 

[Section 8 of Article YI was amended and agreed to. The debate is 
here omitted.] 

Tuesday, August 14,1787 . 

In convention .—Article YI, section 9, was taken up. 

Mr. Pinckney argued that the making the members ineligible to 
offices was degrading to them, and the more improper as their election 
into the legislature implied that they had the confidence of the people; 
that it was inconvenient, because the Senate might be supposed to 


XIV 


SENATE ELECTION CASES. 


contain the fittest men. He hoped to see that body become a school 
of public ministers, a nursery of statesmen. That it was impolitic, 
because the legislature.would cease to be a magnet to the first talents 
and abilities. He moved to postpone the section, in order to take up 
the following proposition, viz: 

“The members of each House shall be incapable of holding any office 
under the United States for which they, or any others for their benefit, 
receive any salary, fees, or emoluments of any kind; and the accept¬ 
ance of such office shall vacate their seats respectively.” 

General Mifflin seconded the motion. 

Colonel Mason ironically proposed to strike out the whole section, 
as a more effectual expedient for encouraging that exotic corruption 
which might not otherwise thrive so well in the American soil; for 
completing that aristocracy which was probably in the contemplation 
of some among us; and for inviting into the legislative service those 
generous and benevolent characters who will do justice to each others 
merit by carving out offices and rewards for it. In the present state 
of American morals and manners, few friends, it may be thought, will 
be lost to the plan by the opportunity of giving premiums to a mer¬ 
cenary and depraved ambition. 

Mr. Mercer. It is a first principle in political science that whenever 
the rights of property are secured an aristocracy will grow out of it. 
Elective governments also necessarily become aristocratic, because the 
rulers, being few, can and will draw emoluments for themselves from 
the many. The governments of America will become aristocracies. 
They are so already. The public measures are calculated for the ben¬ 
efit of the governors, not of the people. The people are dissatisfied, and 
complain. They change their rulers, and the public measures are 
changed, but it is only a change of one scheme of emolument to the rulers 
of another. The people gain nothing by it but an addition of instability 
and uncertainty to their other evils. Governments can only be main¬ 
tained by force or influence. The executive has not force; deprive him 
of influence by rendering the members of the legislature ineligible to 
executive offices, and he becomes a mere phantom of authority. The 
aristocratic part will not even let him in for a share of the plunder. 
The legislature must and will be composed of wealth and abilities, and 
the people will be governed by a junto. The executive ought to have 
a council, being members of both Houses. Without such an influence, 
the war will be between the aristocracy and the people. He wished it 
to be between the aristocracy and the executive. Nothing else can 
protect the people aginst those speculating legislatures which are now 
plundering them throughout the United States. 

Mr. Gerry read a resolution of the legislature of Massachusetts, 
passed before the act of Congress recommending the convention, in 
which her deputies were instructed not to depart from the rotation 
established in the fifth article of the Confederation, nor to agree, in any 
case, to give to the members of Congress a capacity to hold offices 
under the Government. This, he said, was repealed, in consequence of 
the act of Congress, with which the State thought it proper to comply 
in an unqualified manner. The sense of the State, however, was still 
the same. He could not think, with Mr. Pinckney, that the disqualifi¬ 
cation was degrading. Confidence is the road to tyranny. As to 
ministers and ambassadors, few of them were necessary. It is the 
opinion of a great many that they ought to be discontinued on our part, 
that none may be sent among us, and that source of influence shut up. 
If the Senate were to appoint ambassadors, as seemed to be intended, 


INTRODUCTION. 


XV 


they will multiply embassies for their own sakes. He was not so fond 
of those productions as to wish to establish nurseries for them. If they 
are once appointed, the House of Representatives will be obliged to 
provide salaries for them, whether they approve of the measures or 
not. If men will not serve in the legislature without a prospect of such 
offices, our situation is deplorable indeed. If our best citizens are 
actuated by such mercenary views, we had better choose a single despot 
at once. It will be more easy to satisfy the rapacity of one than of 
many. According to the idea of one gentleman (Mr. Mercer), our 
Government, it seems, is to be a government of plunder. In that case, 
it certainly would be prudent to have but one, rather than many, to be 
employed in it. We cannot be too circumspect in the formation of this 
system. It will be examined on all sides, and with a very suspicious 
eye. The people who have been so lately in arms against Great Britain 
for their liberties will not easily give them up. He lamented the evils 
existing, at present, under our governments, but imputed them to the 
faults of those in office, not to the people. The misdeeds of the former 
will produce a critical attention to the opportunities afforded by the 
new system to like or greater abuses. As it now stands, it is as com¬ 
plete an aristocracy as ever was framed. If great powers should be 
given to the Senate, we shall be governed in reality by a junto, as has 
been apprehended. He remarked that it would be very differently con¬ 
stituted from Congress. In the first place, there would be but two 
deputies from each State; in Congress there may be seven, and are 
generally five. In the second place, they are chosen for six years; 
those of Congress annually. In the third place, they are not subject 
to recall; those of Congress are. And, finally, in Congress nine States 
are necessary for all great purposes; here eight persons will suffice. 
Is it to be presumed that the people will ever agree to such a system? 
He moved to render the members of the House of Representatives, as 
well as of the Senate, ineligible, not only during, but for one year after 
the expiration of, their terms. If it should be thought that this will 
injure the legislature, by keeping out of it men of abilities, who are will¬ 
ing to serve in other offices, it may be required, as a qualification for 
other offices, that the candidate shall have served a certain time in the 
legislature. 

Mr. Gouverneur Morris. Exclude the officers of the Army and 
Navy, and you form a band having a different interest from, and opposed 
to, the civil power. You stimulate them to despise and reproach those 
“ talking lords who dare not face the foe.” Let this spirit be roused 
at the end of a war, before your troops shall have laid down their arms, 
and, though the civil authority be “intrenched in parchment to the 
teeth,” they will cut their way to it. He was against rendering the 
members of the legislature ineligible to offices. He was for rendering 
them eligible again, after having vacated their seats by accepting office. 
Why should we not avail ourselves of their services if the people choose 
to give them their confidence? There can be little danger of corrup¬ 
tion, either among the people or the legislatures, who are to be the 
electors. If they say, We see their merits, we honor the men, we choose 
to renew our confidence in them, have they not a right to give them a 
preference, and can they be properly abridged of it? 

Mr. Williamson introduced his opposition to the motion by referring 
to the question concerning “money bills.” That clause, he said, was 
dead. Its ghost, he was afraid, would, notwithstanding, haunt us. It 
had been a matter of conscience with him to insist on it as long as there 
was hope of retaining it. He had swallowed the vote of rejection with 


XVI 


SENATE ELECTION CASES. 


reluctance. He could not digest it. All that was said on the other 
side was that the restriction was not convenient. We have now got a 
house of lords which is to originate money bills. To avoid another 
inconvenience, we are to have a whole legislature at liberty to cut out 
offices for one another. He thought a self-denying ordinance for our¬ 
selves would be more proper. Bad as the Constitution has been made 
by expunging the restriction on the Senate concerning money bills, he 
did not wish to make it worse by expunging the present section. He 
had scarcely seen a single corrupt measure in the legislature of North 
Carolina which could not be traced up to office-hunting. 

Mr. Sherman. The Constitution should lay as few temptations as 
possible in the way of those in power. Men of abilities will increase 
as the country grows more populous, and as the means of education 
are more diffused. 

Mr. Pinckney. No State has rendered the members of the legisla¬ 
ture ineligible to offices. In South Carolina the judges are eligible into 
the legislature. It cannot be supposed, then, that the motion will be 
offensive to the people. If the State constitutions should be revised, 
he believed, restrictions of this sort would be rather diminished than. 
multiplied. 

Mr. Wilson could not approve of the section as it stood, and could not 
give up his judgment to any supposed objections that might arise 
among the people. He considered himself as acting and responsible 
for the welfare of millions not immediately represented in this House. 
He had also asked himself the serious question, what he should say to 
his constituents in case they should call upon him to tell them why he 
sacrificed his own judgment in a case where they authorized him to 
exercise it. Were he to own to them that he sacrificed it in order to 
flatter their prejudices, he should dread the retort, “ Did you suppose 
the people of Pennsylvania had not good sense enough to receive a 
good government?” Under this impression, he should certainly follow 
his own judgment, which disapproved of the section. He would re¬ 
mark, in addition to the objections urged against it, that, as one branch 
of the Legislature was to be appointed by the legislatures of the States, 
the other by the people of the States—as both are to be paid by the 
States, and to be appointable to State offices—nothing seemed to be 
wanting to prostrate the national Legislature but to render its members 
ineligible to national offices, and by that means take away its power of 
attracting those talents which were necessary to give weight to the 
Government, and to render it useful to the people. He was far from 
thinking the ambition which aspired to offices of dignity and trust an 
ignoble or culpable one. He was sure it was not politic to regard it 
in that light, or to withhold from it the prospect of those rewards 
which might engage it in the career of public service. He observed 
that the State of Pennsylvania, which had gone as far as any State 
into the policy of fettering power, had not rendered the members of 
the legislature ineligible to offices of Government. 

Mr. Ellsworth did not think the mere postponement of the reward 
would be any material discouragement of merit. Ambitious minds will 
serve two years, or seven years, in the legislature, for the sake of qual¬ 
ifying themselves for other offices. This he thought a sufficient secu¬ 
rity for obtaining the services of the ablest men in the legislature; 
although, whilst members, they should be ineligible to public offices. 
Besides, merit will be most encouraged when most impartially rewarded. 
If rewards are to circulate only within the legislature, merit out of it 
will be discouraged. 


INTRODUCTION. 


XVII 


Mr. Mercer was extremely anxious on this point. What led to the 
appointment of this convention? The corruption and mutability of the 
legislative councils of the States. If the plan does not remedy these, 
it will not recommend itself; and we shall not be able, in our private 
capacities, to support and enforce it; nor will the best part of our citi¬ 
zens exert themselves for the purpose. It is a great mistake to sup¬ 
pose that the paper we are to propose will govern the United States. 
It is the men whom it will bring into the government, and interest in 
maintaining it, that are to govern them. The paper will only mark out 
the mode and the form. Men are the substance, and must do the busi¬ 
ness. All government must be by force or influence. It is not the 
King of France, but 200,000 janizaries of power, that govern that king¬ 
dom. There will be no such force here; influence, then, must be sub¬ 
stituted; and he would ask whether this could be done if the members 
of the legislature should be ineligible to offices of state; whether such 
a disqualification would not determine all the most influential men to 
stay at home, and prefer appointments within their respective States. 

Mr. Wilson was by no means satisfied with the answer given by Mr. 
Ellsworth to the argument as to the discouragement of merit. The 
members must either go a second time into the legislature, and dis¬ 
qualify themselves, or say to their constituents, “We served you be¬ 
fore only from the mercenary view of qualifying ourselves for offices, 
and, having answered this purpose, we do not choose to be again 
elected.” 

Mr. Gouverneur Morris put the case of a war, and the citizen most 
capable of conducting it happening to be a member of the legislature. 
What might have been the consequence of such a regulation at the 
commencement, or even in the course, of the late contest for our liber¬ 
ties? 

On the question for postponing, in order to take up Mr. Pinckney’s 
motion, it was lost. 

New Hampshire, Pennsylvania, Delaware, Maryland, Virginia, ay, 5; 
Massachusetts, Connecticut, New Jersey, North Carolina, South Caro¬ 
lina, no, 5; Georgia, divided. 

Mr. Gouverneur Morris moved to insert, after “office,” “except 
offices in the Army or Navy; but, in that case, their offices shall be va¬ 
cated.” 

Mr. Broome seconds him. 

Mr. Randolph had been, and should continue, uniformly opposed to 
the striking out of the clause, as opening a door for influence and cor¬ 
ruption. No arguments had made any impression on him but those 
which related to the case of war, and a coexisting incapacity of the 
fittest commanders to be employed. He admitted great weight in these, 
and would agree to the exception proposed by Mr. Gouverneur Morris. 

Mr. Butler and Mr. Pinckney urged a general postponement of Ar¬ 
ticle VI, section 9, till it should be seen what powers would be vested 
in the Senate, when it would be more easy to judge of the expediency 
of allowing the officers of state to be chosen out of that body. 

A general postponement was agreed to nem con. (207). 

[Section 10 of Article VI was amended and agreed to. The debate is 
here omitted.] 

Saturday, Septeniber 1, 1787 . 

In convention. —Mr. Brearly, from the committee of eleven, to which 
were referred yesterday the postponed part of the Constitution, and 
parts of reports not acted upon, made the following partial report : 

“That in lieu of Article VI, section 9, the words following be in- 

S. Doc. 11-ii 


XVIII 


SENATE ELECTION CASES. 


serted, viz: 1 The members of each House shall be ineligible to any civil 
office under the authority of the United States, during the time for 
which they shall respectively be elected; and no person holding an 
office under the United States shall be a member of either House during 
his continuance in office. 7 77 

Monday, September <2, 1787. 

Mr. Pinckney moved to postpone the report of the committee of 
eleven (see the 1st of September), in order to take up the following: 

“The members of each House shall be incapable of holding any 
office under the United States for which they, or any other for their 
benefit, receive any salary, fees, or emoluments of any kind, and the 
acceptance of such office shall vacate their seats respectively. 77 

He was strenuously opposed to an ineligibility of members to office, 
and, therefore, wished to restrain the proposition to a mere incompati¬ 
bility. He considered the eligibility of members of the legislature to 
the honorable offices of government as resembling the policy of the 
Romans, in making the temple of Virtue the road to the temple of Fame. 

On this question— 

Pennsylvania, North Carolina, ay, 2; New Hampshire, Massachu¬ 
setts, Connecticut, New Jersey, Maryland, Virginia, South Carolina, 
Georgia, no, 8. 

Mr. King moved to insert the word “created 77 before the word “dur¬ 
ing, 77 in the report of the committee. This, he said, would exclude the 
members of the first legislature under the Constitution, as most of the 
offices would then be created. 

Mr. Williamson seconded the motion. He did not see why members 
of the legislature should be ineligible to vacancies happening during 
the term of their election. 

Mr. Sherman was for entirely incapacitating members of the legisla¬ 
ture. He thought their eligibility to offices would give too much influ¬ 
ence to the executive. He said the incapacity ought at least to be 
extended to cases where salaries should be increased, as well as created, 
during the term of the member. He mentioned, also, the expedient by 
which the restriction could be evaded; to wit, an existing officer might 
be translated to an office created, and a member of the legislature, be 
then put into the office vacated. 

Mr. Gouverneur Morris contended that the eligibility of members to 
office would lessen the influence of the executive. If they can not be 
appointed themselves, the executive will appoint their relations and 
friends, retaining the service and votes of the members for his purpose, 
in the legislature; whereas the appointment of the members deprives 
him of such an advantage. 

Mr. Gerry thought the eligibility of members would have the effect 
of opening batteries against good officers, in order to drive them out 
and make way for members of the legislature. 

Mr. Gorham was in favor of the amendment. Without it, we go far¬ 
ther than has been done in any of the States, or, indeed, any other 
country. The experience of the State governments, where there was 
no such ineligibility, proved that it was not necessary; on the contrary, 
that the eligibility was among the inducements for fit men to enter into 
the legislative service. 

Mr. Randolph was inflexibly fixed against inviting men into the leg¬ 
islature by the prospect of being appointed to offices. 

Mr. Baldwin remarked, that the example of the States was not ap¬ 
plicable. The legislatures there are so numerous that an exclusion of 


INTRODUCTION. 


XIX 


their members would not leave x>roper men for offices. The case would 
be otherwise in the General Government. 

Colonel Mason. Instead of excluding merit, the ineligibility will 
keep out corruption, by excluding office-hunters. 

Mr. Wilson considered the exclusion of members of the legislature 
as increasing the influence of the executive, as observed by Mr. Gou- 
verneur Morris; at the same time that it would diminish the general 
energy of the Government. He said that the legal disqualification for 
office would be odious to those who did not wish for office, but did not 
wish either to be marked by so degrading a distinction. 

Mr. Pinckney. The first legislature will be composed of the ablest 
men to be found. The States will select such to put the Government 
into operation. Should the report of the committee, or even the amend¬ 
ment, be agreed to, the great offices, even those of the judiciary depart¬ 
ment, which are to continue for life, must be filled, while those most 
capable of filling them will be under a disqualification. 

On the question on Mr. King’s motion— 

New Hampshire, Massachusetts, Pennsylvania, Virginia, North Caro¬ 
lina, ay, 5; Connecticut, New Jersey, Maryland, South Carolina, Georgia, 
no, 5. 

The amendment being thus lost, by the equal division of the States, 
Mr. Williamson moved to insert the words “ created, or the emoluments 
whereof shall have been increased,” before the word “ during,” in the 
report of the committee. 

Mr. King seconded the motion, and on the question— 

New Hampshire, Massachusetts, Pennsylvania, Virginia, North Caro¬ 
lina, ay, 5; Connecticut, New Jersey, Maryland, South Carolina, no, 4; 
Georgia, divided. 

The last clause, rendering a seat in the legislature and an office in¬ 
compatible, was agreed to nem. con. 

The report, as amended and agreed to, is as follows: 

“The members of each House shall be ineligible to any civil office 
under the authority of the United States, created, or the emoluments 
whereof shall have been increased, during the time for which they shall 
respectively be elected. And no person, holding any office under the 
United States, shall be a member of either house during his continuance 
in office. (251) 

Adjourned. 

[September 12, 1787, the Committee to Eevise the Style, &c., reported 
the Constitution, in which the following changes were made in regard 
to the election and qualifications of Senators.] 

Friday, September 14,1787 . 

Article I, section 3, the words “by lot”* were struck out nem. con., 
on motion of Mr. Madison, that some rule might prevail in the rotation 
that would prevent both the members from the same State from going 
out at the same time. 

u Ex officio ” struck out of the same section, as superfluous, nem. con.) 
and “or affirmation,” after “oath,” inserted also unanimously. 

Mr. Eutledge and Mr. Gouverneur Morris moved—“That persons 
impeached be suspended from their offices until they be tried and ac¬ 
quitted.” 

* “Ry lot” had been reinstated from the report of the committee of live, made on 
the 6th of August, as a correction of the printed report by the committee of style, 
Ac. 




XX 


SENATE ELECTION CASES. 


Mr. Madison. The President is made too dependent already on the 
Legislature by the power of one branch to try him in consequence of 
an impeachment by the other. This intermediate suspension will put 
him in the power of one branch only. They can at any moment, in 
order to make way for the functions of another who will be more favor¬ 
able to their views, vote a temporary removal of the existing magis¬ 
trate. 

Mr. King concurred in the opposition to the amendment. 

On the question to agree to it— 

Connecticut, South Carolina, Georgia, ay, 3; New Hampshire, Massa¬ 
chusetts, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, 
North Carolina, no, 8. 

Article I, section 4, “except as to the places of choosing Senators,” 
was added, nem. con ., to the end of the first clause, in order to exempt 
the seats of government in the States from the power of Congress. 

Article I, section 5— 

“Each House shall keep a journal of its proceedings, and from time 
to time publish the same, excepting such parts as may, in their judg¬ 
ment, require secrecy.” 

Colonel Mason and Mr. Gerry moved to insert, after the word “parts,” 
the words “of the proceedings of the Senate,” so as to require publica¬ 
tion of all the proceedings of the House of Representatives. 

It was intimated, on the other side, that cases might arise where se¬ 
crecy might be necessary in both Houses. Measures preparatory to a 
declaration of war, in which the House of Representatives was to con¬ 
cur, were instanced. 

On the question, it passed in the negative. 

Pennsylvania, Maryland, North Carolina, ay, 3; New Hampshire, 
Massachusetts, Connecticut, New Jersey, Delaware, Virginia, Georgia, 
no, 7; South Carolina, divided. 

Mr. Baldwin observed that the clause, Article I, section 6, declaring 
that no member of Congress, “ during the time for which he was elected, 
shall be appointed to any civil office under the authority of the United 
States which shall have been created, or the emoluments whereof shall 
have been increased, during such time,” would not extend, to offices 
created by the Constitution, and the salaries of which would be created, 
not increased, by Congress at their first session. The members of the 
first Congress, consequently, might evade the disqualification in this 
instance. He was neither seconded nor opposed, nor did anything 
further pass on the subject. 


EXTRACTS FROM THE CONSTITUTION. 

ARTICLE. I. 

Section. 3. The Senate of the United States shall be composed of 
two Senators from each State, chosen by the Legislature thereof, for 
six Years; and each Senator shall have one Vote. 

Immediately after they shall be assembled in Consequence of the 
first Election, they shall be divided as equally as may be into three 
Classes. The Seats of the Senators of the first Class shall be vacated 
at the Expiration of the second Year, of the second Class at the Expi¬ 
ration of the fourth Year, and of the third Class at the Expiration of 



INTRODUCTION. 


XXI 


the sixth Year, so that one third may be chosen every second Year; 
and if Vacancies happen by Resignation, or otherwise, daring the Re¬ 
cess of the Legislature of any State, the Executive thereof may make 
temporary Appointments until the next Meeting of the Legislature, 
which shall then fill such Vacancies. 

No Person shall be a Senator who shall not have attained to the 
Age of thirty Years, and been nine Years a Citizen of the United 
States, and who shall not, when elected, be an Inhabitant of that 
State for which he shall be chosen. 

The Vice President of the United States shall be President of the 
Senate, but shall have no Vote, unless they be equally divided. 

The Senate shall chuse their other Officers, and also a President pro 
tempore, in the Absence of the Vice President, or when he shall exer¬ 
cise the Office of President of the United States. 

The Senate shall have the sole Power to try all Impeachments. 
When sitting for that Purpose, they shall be on Oath or Affirmation. 
When the President of the United States is tried, the Chief Justice 
shall preside: And no Person shall be convicted without the Concur¬ 
rence of two thirds of the Members present. 

Judgment in Cases of Impeachment shall not extend further than 
to removal from Office, and disqualification to hold and enjoy any Office 
of Honor, Trust or Profit under the United States: but the Party con¬ 
victed shall nevertheless be liable and subject to Indictment, Trial, 
Judgment and Punishment, according to Law. 

Section. 4. The Times, Places and Manner of holding Elections for 
Senators and Representatives, shall be prescribed in each State by the 
Legislature thereof; but the Congress may at any time by Law make 
or alter such Regulations, except as to the Places of chusing Senators. 

The Congress shall assemble at least once in every Year, and such 
Meeting shall be on the first Monday in December, unless they shall by 
Law appoint a different Day. 

Section. 5. Each House shall be the Judge of the Elections, Returns 
and Qualifications of its own Members, and a Majority of each shall 
constitute a Quorum to do Business; but a smaller Number may adjourn 
from day to day, and may be authorized to compel the Attendance of 
absent Members, in such Manner, and under such Penalties as each 
House may provide. 

Each House may determine the Rules of its Proceedings, punish its 
Members for disorderly Behaviour, and, with the Concurrence of two 
thirds, expel a Member. 

Each House shall keep a Journal of its Proceedings, and from time 
to time publish the same, excepting such Parts as may in their Judg¬ 
ment require Secrecy; and the Yeas and Nays of the Members of either 
House on any question shall, at the Desire of one fifth of those Present, 
be entered on the Journal. 

Neither House, during the Session of Congress, shall, without the 
Consent of the other, adjourn for more than three days, nor to any 
other Place than that in which the two Houses shall be sitting. 

Section. 6. The Senators and Representatives shall receive a Com¬ 
pensation for their Services, to be ascertained by Law, and paid out of 
the Treasury of the United States. They shall in all Cases, except 
Treason, Felony and Breach of the Peace, be privileged from Arrest 
during their Attendance at the Session of their respective Houses, and 
in going to and returning from the same; and for any Speech or Debate 
in either House, they shall not be questioned in any other Place. 

No Senator or Representative shall, during the Time for which he 


XXII 


SENATE ELECTION CASES. 


was elected, be appointed to any civil Office under the Authority of the 
United States, which shall have been created, or the Emoluments 
whereof shall have been encreased during such time; and no Person 
holding any Office under the United States, shall be a Member of either 
House during his Continuance in Office. 

ARTICLE XIV, OF THE AMENDMENTS. 

Section 3. No person shall be a Senator or Kepresentative in Con¬ 
gress, or elector of President or Vice President, or hold any office, civil 
or military, under the United States, or under any State, who, having 
previously taken an oath, as a member of Congress, or as an officer of 
the United States, or as a member of any State legislature, or as an 
executive or judicial officer of any State, to support the Constitution 
of the United States, shall have engaged in insurrection or rebellion 
against the same, or given aid or comfort to the enemies thereof. But 
Congress may by a vote of two-thirds of each House, remove such dis¬ 
ability. 


ACT OF JULY 25, 1866. 

REVISED STATUTES, TITLE II, CHAPTER 1. 

Sec. 14. The legislature of each State which is chosen next preceding 
the expiration of the time for which any Senator was elected to repre¬ 
sent such State in Congress shall, on the second Tuesday after the 
meeting and organization thereof, proceed to elect a Senator in Con¬ 
gress. 

Sec. 15. Such election shall be conducted in the following manner: 
Each house shall openly, by a viva voce vote of each member present, 
name one person for Senator in Congress from such State, and the name 
of the person so voted for, who receives a majority of the whole number 
of votes cast in each house, shall be entered on the journal of that house 
by the clerk or secretary thereof; or if either house fails to give such 
majority to any person on that day, the fact shall be entered on the 
journal. At twelve o’clock meridian of the day following that on which 
proceedings are required to take place as aforesaid, the members of the 
two houses shall convene in joint assembly, and the journal of each 
house shall then be read, and if the same person has received a majority 
of all the votes in each house, he shall be declared duly elected Sena¬ 
tor. But if the same person has not received a majority of the votes 
in each house, or if either house has failed to take proceedings as re¬ 
quired by this section, the joint assembly shall then proceed to choose, 
by a viva voce vote of each member present, a person for Senator, and 
the person who receives a majority of all the votes of the joint assem¬ 
bly, a majority of all the members elected to both houses being present 
and voting, shall be declared duly elected. If no person receives such 
majority on the first day, the joint assembly shall meet at twelve o’clock 
meridian of each succeeding day during the session of the legislature, 
and shall take at least one vote, until a Senator is elected. 

Sec. 16. Whenever on the meeting of the legislature of any State a 
vacancy exists in the representation of such State in the Senate, the 
legislature shall proceed, on the second Tuesday after meeting and or¬ 
ganization, to elect a person to fill such vacancy, in the manner pre- 


INTRODUCTION. 


XXIII 


scribed in the preceding section for the election of a Senator for a full 
term. 

Sec. 17. Whenever during the session of the legislature of any State 
a vacancy occurs in the representation of such State in the Senate, 
similar proceedings to till such vacancy shall be had on the second 
Tuesday after the legislature has organized and has notice of such va¬ 
cancy. 

Sec. 18. It shall be the duty of the executive of the State from which 
any Senator has been chosen, to certify his election, under the seal of 
the State, to the President of the Senate of the United States. 

Sec. 19. The certificate mentioned in the preceding section shall be 
countersigned by the secretary of state of the State. 


COMMITTEE ON PKIYILEGES AND ELECTIONS. 

The Committee on Privileges and Elections was formed in the first 
session of the Forty-second Congress. 



* 














• • 


















1 















V 







SENATE ELECTION CASES. 

I. 

CASES CONCERNING THE POWER OF EXECUTIVES OF STATES 

TO FILL VACANCIES. 


[Third Congress—First session.] 

KENSEY JOHNS, 
of Delaware. 

George Read, a Senator from Delaware, resigned his seat in December, 1793, during the recess of 
the legislature of said State. The legislature met in January and adjourned in February, 1794. 
On the 19th of March, Kensey Johns was appointed by the governor of said State to fill the vacancy. 
It was determined that Mr. Johns was not entitled to his seat, a session of the legislature having 
intervened between the resignation of Mr. Read and the appointment of Mr. Johns. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Annals of Congress, 3d Cong., 1793-’95,within pages 73-78. 


Monday, March 24, 1794. 

Kensey Johns appeared and produced his credentials of an appointment by the gov¬ 
ernor of the State of Delaware as a Senator of the United States; which were read. 

Whereupon it was moved that they be referred to the consideration of the Committee 
of Elections before the said Kensey Johns should be permitted to qualify, who are di 
rected to report thereon; and it passed in the affirmative—yeas 13, nays 12; as follows: 

Yeas —Messrs. Bradley, Brown, Burr, Edwards, Gunn, Hawkins, Jackson, Langdon, 
Livermore, Martin, Monroe, Robinson, and Taylor. 

Nays —Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Izard, Mitchell, 
Morris, Potts, Rutherfurd, Strong, and Vining. 


Wednesday, March 26, 1794. 

Mr. Bradley reported from the Committee on Elections, to whom were referred the 
credentials of Kensey Johns, appointed by the executive of the State of Delaware a 
Senator of the United States in the place of George Read, resigned. 

Ordered , That the report lie for consideration. 


Thursday, March 27, 1794. 

The Senate proceeded to the consideration of the report of the Committee of Elections, 
to whom were referred the credentials of Kensey Johns, appointed by the executive of 
the State of Delaware to be a Senator of the United States. 

On motion that the report be recommitted, it passed in the negative; and, 

After progress, it was 

Ordered , That the further consideration of this report be postponed until to-morrow 

Friday, March 28, 1794. 

The Senate resumed the consideration of the report of the Committee of Elections, to 
whom were referred the credentials of Kensey Johns, appointed by the executive of the 
State of Delaware to be a Senator of the United States; which report is as follows: 

1 


S. Doc. 11-1 




2 


SENATE ELECTION CASES. 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Bradley, Ellsworth, Mitchell, Rutherford, Brown, 
Livermore, and Taylor.] 

The Committee of Elections, to whom were referred the credentials of an appoint¬ 
ment by the governor of the State of Delaware of Kensey Johns as a Senator of the 
United States, having had the same under consideration, report— 

That George Read, a Senator for the State of Delaware, resigned his seat upon the 
18th day of December, 1793, and during the recess of the legislature of said State. 

That the legislature of the said State met in January and adjourned in February, 
1794. 

That upon the 19th day of March, and subsequent to the adjournment of the said 
legislature, Kensey Johns was appointed by the governor of said State to fill the va¬ 
cancy occasioned by the resignation aforesaid. 

Whereupon the committee submit the following resolution: 

Resolved , That Kensey Johns, appointed by the governor of the State of Delaware 
as a Senator of the United States for said State, is not entitled to a seat in the Senate 
of the United States, a session of the legislature of the said State having intervened 
between the resignation of the said George Read and the appointment of the said Ken¬ 
sey Johns. 

On the question to agree to this report, it passed in the affirmative—yeas 20, nays 7; 
as follows: 

Yeas —Messrs. Bradford, Bradley, Brown, Burr, Butler, Cabot, Edwards, Ellsworth, 
Frelinghuysen, Gunn, Hawkins, Jackson, King, Langdon, Livermore, Martin, Mitchell, 
Monroe, Robinson, and Taylor. 

Nays —Messrs. Foster, Izard, Morris, Potts, Rutherfurd, Strong, and Vining. 

Resolved , That an attested copy of the resolution of the Senate on the appointment of 
Kensey Johns to be a Senator of the United States be transmitted by the President of 
the Senate to the executive of the State of Delaware. 


URIAH TRACY, 


3 


[Special session of Senate, March, 1801.] 

URIAH TRACY, 

Senator from Connecticut from December 6, 1796, till his death , July 19 , 

1807. 


Mr. Tracy’s first term expired March 3,1801. On March 4, at a special session of the Senate, he 
produced credentials of appointment by the governor of Connecticut to fill the vacancy. It appears 
from the credentials, which are dated February 20, 1801, that the legislature of the State was not 
then in session, and that he was appointed “from the 3d of March next until the next meeting of 
the legislature of said State.” Exception being taken to his credentials he was admitted by a vote 
of 13 yeas to 10 nays. Under these credentials he occupied his seat during the special session of the 
Senate, March 4 and 5. In May following he was elected by the legislature, and on December 6, 
the second day of the next session of Congress, he produced his credentials of election and the oath 
was administered. 

The brief history of the case here given, taken from the Annals of Congress, 6th Cong., 1799-1801, 
page 763, contains all that there is relating to'it, neither the debate referred to nor the grounds of the 
decision being given. 


Wednesday, March 4, 1801. 

Exception being taken to the credentials of the Hon. Mr. Tracy, a Senator from tbe 
State of Connecticut, a debate ensued; and, 

On motion that he be admitted to take the oath required by the Constitution, it 
passed in the affirmative—yeas 13, nays 10; as follows: 

Yeas— Messrs. Chipman, Dayton, Dwight Foster, Hillhouse, Howard, Livermore, J. 
Mason, Morris, Ogden, Ross, Sheafe, Wells, and White 
Nays— Messrs. Anderson, Armstrong, Baldwin, Brown, Cocke, S. T. Mason, Muhlen¬ 
berg, Nicholas, Pinckney, and Stone. 


4 


SENATE ELECTION CASES. 


[Eleventh Congress—First session.] 

SAMUEL SMITH, 

Senator from Maryland from March 4, 1803, to March 3,1815, and from 
December 17, 1822, to March 3, 1833. 

On the expiration of Mr. Smith’s first term, viz, March 3, 1809, the legislature of Maryland not 
having elected his successor, and not then being in session, he was appointed by the governor 
on March 4 to fill the vacancy until the next meeting of the legislature, which would take place on 
the 5th of June next. Thereupon Mr. Smith addressed a letter to the Senate, setting forth these 
facts, and submitting to its determination the question whether the appointment would or would 
not cease on the first day of the meeting of the legislature. It was determined that he was entitled 
to hold his seat in the Senate during the session of the legislature, unless the legislature should fill 
such vacancy by the appointment of a Senator, and the Senate be officially informed thereof. 
Under these credentials Mr. Smith held his seat during the special session of the Senate March 4-7, 
1809, and during the first session of the Eleventh Congress (May 22 to June 28,1809). On the 16th of 
November following he was elected by the legislature, and on December 4, in the next session of 
Congress, he produced his credentials of election and the oath was administered. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Annals of Congress, 11th Cong., 1st and 2d sess., vol. 1,1809-T0, within pages 15-25. 

Monday, May 29, 1809. 

The President laid before the Senate a letter from Mr. Smith, of Maryland, stating 
that being appointed by the executive of that State a Senator, in conformity with the 
Constitution, until the next meeting of the legislature, which will take place on the 5th 
day of June next, he submits to the determination of the Senate the question whether 
an appointment under the executive of Maryland to represent that State in the Senate 
of the United States will or will not cease on the first day of the meeting of the legis¬ 
lature thereof? And the letter was read; and, 

After debate, it was agreed that the further consideration thereof be postponed until 
to-morrow. 


Tuesday, May 30, 1809. 

The Senate resumed the consideration of the letter from Mr. Smith, of Maryland, 
communicated yesterday; and, 

On motion of Mr. Giles, the further consideration thereof was postponed to the 5th of 
June next. 


Tuesday, June 6, 1809. 

The Senate resumed the consideration of the letter of Mr. Smith, a Senator from the 
State of Maryland ; and 

Mr. Giles submitted a resolution, which was amended, and is as follows: 

‘ ‘ Resolved , That the Hon. Samuel Smith, a Senator appointed by the executive of the 
State of Maryland to fill the vacancy which happened in the office of Senator for that 
State, is entitled to hold his seat in the Senate of the United States during the session 
of the Legislature of Maryland, which, by the proclamation of the governor of said State, 
was to commence on the 5th day of the present month of June; unless said legislature 
shall fill such vacancy by the appointment of a Senator, and this Senate be officially in¬ 
formed thereof . 1 ’ 

On motion by Mr. Anderson to amend the motion by striking out all after the word 
“ resolved,’’ and inserting: 

“That any Senator of this body who holds a seat under an executive appointment 
cannot, according to the provisions of the Constitution of the United States, be entitled 
to continue to hold his seat as a member of this body after the meeting of the legislature 
of the State from which such Senator may be a member,” 

And a division of the motion for amendment was called for, and the question having 
been taken on striking out, it passed in the negative; and, 

The motion for amendment having been lost, the original motion was agreed to— 
yeas 19, nays 6; as follows: 

Yeas— Messrs. Anderson, Brent, Franklin, Gaillard, German, Giles, Gilman, Good¬ 
rich, Griswold, Hillhouse, Lambert, Mathewson, Meigs, Pope, Robinson, Smith of New 
York, Thruston, White, and Whiteside. 

Nays —Messrs. Bradley, Leib, Lloyd, Parker, Pickering, and Turner. 


JAMES LANMAN. 


5 


[Special session of Senate, March, 1825.] 

JAMES LANMAN, 

Senator from Connecticut from March 4,1819, to March 3, 1825. 

Mr. Lanman’s term expired March 3, 1825. March 4, 1825, he produced credentials of appoint¬ 
ment by the governor to fill the vacancy. The credentials of appointment were dated February 8, 
.825, and set forth that the President of the United States had desired the Senate to convene on the 
4th day of March, and had caused official notice of that fact to be communicated to the governor. 
They were “to take effect immediately after the 3d day of March, 1825,and to continue until the 
next meeting of the legislature.” Exception being taken to the credentials, they were referred to a 
committee, who reported the facts as above. On motion that he be admitted.it was determined in 
Ike-negative, the grounds on which the Senate proceeded not being given. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Senate Journal, 2d sess. 18th Cong., 1824-’25, within pages 272-283. A slightly 
fuller sketch of the debate than that here given may be found in Niles’s Weekly Register, vol. 28. 
pages 31,32. 


Friday, March 4, 1825. 

The President laid before the Senate a letter from the Hon. James Lanman, inclosing 
the credentials of his appointment by the governor of Connecticut as a Senator of the 
United States, “ to take effect immediately after the 3d day of March, 1825, and to con¬ 
tinue until the next meeting of the legislature,” and expressing his readiness to receive 
the usual qualifications. 

The letter and credentials were read. 

On motion by Mr. Holmes, of Maine, that Mr. Lanman he admitted to take the oath 
required by the Constitution, a debate ensued, and, 

On motion, 

Ordered, That the further consideration thereof be postponed until to-morrow. 

Saturday, March 5,1825. 

The Senate resumed the consideration of the motion of yesterday, 4 4 that Mr. Lanman 
be admitted to take the oath required by the Constitution,” and, 

On motion by Mr. Eaton, 

Ordered , That said motion, together with the credentials of Mr. Lanman, be referred 
to a select committee, to consist of three members, to consider and report thereon. 

Mr. Eaton, Mr. Edwards, and Mr. Tazewell were appointed the committee. 

Mr. Van Buren submitted the following motion for consideration: 

“ Resolved, That the Hon. James Lanman have leave to be heard at the bar of the Senate 
on the question as to his right to a seat therein under an appointment by the executive 
of Connecticut.” 


Monday, March 7, 1825. 

Mr. Eaton, from the select committee to whom was referred, on the 5th instant, the 
motion “that Mr. Lanman be admitted to take the oath required by the Constitution,” 
together with the credentials of Mr. Lanman, submitted the following report, which was 
read: 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Eaton, Edwards, and Tazewell.] 

That Mr. Lanman’s term of service in the Senate expired on the 3d March. On the 
4th, he presented to the Senate a certificate, regularly and properly authenticated, from 
Oliver Wolcott, governor of the State of Connecticut, setting forth that the President of 
the United States had desired the Senate to convene on the 4th day of March, and had 
caused official notice of that fact to be communicated to him. 

The certificate of appointment is dated the 8th of February, 1825, subsequent to the 
time of notification to him by the President. The certificate further recites that, at the 
time of its execution, the legislature of the State was not in session, and would not be 
until the month of May. 

The committee have looked into the Journals of the Senate to discover if they could 
find any authority or decision by them on this question; and the following have been 
found recorded: 

“ On the 27th of April, 1797, William Cocke was appointed a Senator from that State 


6 


SENATE ELECTION CASES. 


by the governor of Tennessee; his term of service having expired on the 3d of the pre¬ 
ceding March, and on the 15th of May took his seat, and was qualified. 

“On the 3d of March, 1801, the seat of Uriah Tracy became vacant, the time for 
which he had been elected having expired. On the 20th of February preceding the 
governor of Connecticut reappointed him a Senator, and, in pursuance thereof, he was 
qualified and took his seat. 

“ Joseph Anderson, a Senator from Tennessee, was appointed by the governor a mem¬ 
ber of the Senate on the 6th of February, 1809, and on the 4th of March after took his 
seat; the period for which he had been elected having on the preceding day expired. 

“John Williams, of Tennessee, on the 20th of January, 1817, was appointed a Sen¬ 
ator in Congress, to take his seat on the 4th of March, when the term for which he had 
been elected would expire. Mr. Williams appeared, was qualified, and took his seat.” 

In none of these cases does it appear that there was any objection made, or question 
raised, except in 1801, in the case of Mr Tracy, when the vote was 13 for and 10 against 
the right of the member to take his seat. Those are the only analogous cases the com¬ 
mittee have been able to find. 

By reference to the statute laws of Connecticut the committee find that in that State 
there is a law upon this subject which is in the following words: “Whenever any va¬ 
cancy shall happen in the representation of this State in the Senate of the United States, 
by the expiration of the term of service of a Senator, or by resignation or otherwise, 
the general assembly, *f then in session, shall, by a concurrent vote of the senate and 
house of representatives, proceed to fill said vacancy by a new election; and in case such 
vacancy shall happen in the recess of the general assembly, the governor shall appoint 
some person to fill the same until the next meeting of the general assembly. ’ ’ 

The Senate proceeded to consider the motion of the 5th instant, that the Hon. James 
Lanman have leave to be heard at the bar of the Senate on the question as to his right 
to a seat therein; and agreed thereto. 

Mr. Edwards submitted the following motion; which was read: 

‘ ‘ Resolved , That the Hon. James Lanman, appointed a Senator by the governor of the 
Shite of Connecticut, be now admitted to the oath required by the Constitution.” 

And on the question to agree thereto, it was determined in the negative—yeas 18, 
nays 23. 

The yeas and nays being desired by one-fifth of the Senators present, 

Those who voted in the atfirmative are Messrs. Bell, Bouligny, Chase, Clayton, D’Wolf, 
Edwards, Harrison, Hendricks, Johnston of Louisiana, Kane, Knight, Lloyd of Massa¬ 
chusetts, M’llvaine, Mills, Noble, Rowan, Seymour, and Thomas. 

Those who voted in the negative are Messrs. Barton, Benton, Berrien, Branch, Chan¬ 
dler, Dickerson, Eaton, Findlay, Gaillard, Hayne, Holmes of Maine, Holmes of Mis¬ 
sissippi, Jackson, King of Alabama, Lloyd of Maryland, Macon, Marks, Ruggles, Smith, 
Tazewell, Van Buren, Van Dyke, and Williams. 


AMBROSE H. SEVIER. 


7 


[Special session of Senate, March, 1837.] 

AMBROSE H. SEVIER, 

Senator from Arkansas from December 5,1836,/o March 4,1837, and from 
March 8, 1837, till he resigned , March 15, 1848. 

The State of Arkansas was admitted into the Union in June, 1836. In October, 1836, the legisla¬ 
ture of that State elected Ambrose H. Sevier and William S. Fulton Senators. On the allotment of 
the Arkansas Senators to their respective classes,as required by the third section of the first article 
of the Constitution, Mr. Sevier was placed in the class of Senators whose term of service expired 
on the 3d of March, 1837. The legislature of Arkansas had no opportunity to fill the vacancy, not 
having been in session after the result of the allotment was known in that State. January 17,1837, 
the governor of Arkansas appointed Mr. Sevier to fill the vacancy which would take place on the 
3d of March. At the special session of the Senate in March the credentials were referred to the 
Committee on the Judiciary. The committee reported that as the time when Mr. Sevier was to go 
out of office was decided by lot, and as the legislature, not being in session after this decision, could 
not supply the vacancy, it came “ fairly within the provision of the Constitution contained in the 
third section of the first article, which declares, ‘ and if vacancies happen by resignation or otherwise,' 
&c.”; and reported a resolution that the oath required by the Constitution be administered to him. 
March 8 this resolution passed and Mr. Sevier took his seat. No debates on the adoption of the 
resolution are found. Under these credentials Mr. Sevier held the seat during the remainder of 
the special session March 8-10, during the first session ef the Twenty-fifth Congress, September 4 to 
October 16, and from December 4-13 of the second session, when he presented credentials of elec¬ 
tion (which had taken place November 7) for term ending March 3, 1843, and the oath was adminis¬ 
tered. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Congressional Globe, 2d sess. 24th Cong., pages 1 and 209, and during the special 
session from the Senate Journal, 2d sess. 24th Cong., 1836-’37, within pages 358-367. No fuller account 
of the proceedings during the special session than that taken from the Senate Journal is found. 


Monday, December 5,1836. 

Mr. Benton presented the credentials of the Hon. A. H. Sevier and W. S. Fulton, 
Senators-elect from the State of Arkansas. The Vice-President administered the oath 
prescribed by the Constitution of the United States, and they took their, seats. 

On motion by Mr. Benton, 

Resolved, That the Secretary put into the ballot-box three papers of equal size, num¬ 
bered 1, 2, 3. Each of the Senators from the State of Arkansas draw out one paper. 
No. 1, if drawn, shall entitle the member to be placed in the class of Senators whose 
terms of service will expire the 3d day of March, 1837; No. 2 in the class whose terms will 
expire the 3d day of March, 1839; and No. 3 in the class whose terms will expire on the 
3d day of March, 1841. 

In pursuance of the above order, Mr. Sevier drew from the ballot-box No. 1, and Mr. 
Fulton No. 3. Therefore Mr. Sevier’s term expires on the 3d of March, 1837, and Mr. 
Fulton’s on the 3d of March, 1841. 


Monday, February 27, 1837. 

Mr. Fulton presented the credentials of the Hon. Ambrose H. Sevier, appointed a 
Senator by the governor of Arkansas to fill the vacancy that will occur on the 4th of 
March next, for the term of six years. 

Mr. Webster expressed his doubts as to the constitutionality of making an appoint¬ 
ment, no vacancy having occurred. 

Mr. Fulton remarked that he and his colleague were aware of this difficulty; but he 
(Mr. F.), supposing that it would be a matter for the next Senate to act upon, presented 
the credentials under that impfession. 

The Chair said that it was not for the Senate to consider the qualifications of Senators 
elected to the next Congress. That Congress must act on this subject. 

Mr. Sevier said that he had very great doubt of the legality of the appointment, and 
did not at all doubt the patriotic motives which influenced the Senator from Massa¬ 
chusetts in expressing himself as he had done. Mr. S. cared not how the matter should 
be decided, one way or the other. 

Mr. Webster was sure that the honorable Senator was very indifferent as to how the 
question might be decided, and would give him credit as to his motives in intimating 
that there might be some irregularity in the proceeding. 

Mr. Sevier expressed himself quite satisfied with the course pursued by the honorable 
Senator from Massachusetts. 


8 


SENATE ELECTION CASES. 


Saturday, March 4, 1837. 

The Hon. Ambrose H. Sevier, whose credentials were read the *27th February, 1837, 
appearing for the purpose of being qualified, 

On motion by Mr. King, of Alabama, 

Ordered, That the further consideration ol the same be postponed to Monday next. 

Monday, March 6, 1837. 

The Senate resumed the consideration of the credentials of the Hon. Ambrose H. Sevier, 
and, 

On motion by Mr. Fulton, 

Ordered , That they be referred to the Committee on the Judiciary. 

Tuesday, March 7, 1837. 

Mr. Grundy, from the Committee on the Judiciary, to whom were referred the cre¬ 
dentials of the Hon. Ambrose H. Sevier, submitted the following report: 

REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Grundy (chairman), Crittenden, Morris, King of 
Georgia, and Wall.] 

The Committee on the Judiciary, to whom was referred the credentials of the Hon. 
Ambrose H. Sevier, have had the same under consideration, and submit the following 
report: 

At the last session of Congress the State of Arkansas was admitted into the Union, and 
the legislature of that State, in the month of October, 1836, elected Ambrose H. Sevier and 
William S. Fulton Senators to represent the State in the Senate of the United States. 
It also appears that upon the allotment of the said Arkansas Senators to their respective 
classes, as required by the third section of the first article of the Constitution, the said 
Ambrose H. Sevier was placed in the class of Senators whose term of service expired on 
the 3d day of March, 1837, and that the legislature of Arkansas have had no opportunity 
of filling the vacancy, not having been in session since the fact that the vacancy would 
occur could have been known in that State. The governor of the State of Arkansas on 
the 17th day of January last commissioned the said Sevier as Senator to fill the vacancy 
which would take place on the 3d of March. Upon this state of the case the question 
is presented whether the said Ambrose H. Sevier is entitled to his seat under the appoint¬ 
ment made by the executive of the State of Arkansas ? In looking into the practice of 
the Senate upon the subject of executive appointments, no case like the present has been 
found. Several cases have occurred in which the executives of different States in antic¬ 
ipation of the expiration of the regular term of service have appointed Senators (the leg¬ 
islatures not being in session), and in all of these cases the Senators thus appointed were 
admitted to their seats, until the called session of the Senate in March, 1825, when Mr. 
Lanman, of Connecticut, whose term of service expired on the 3d of March, 1825, pro¬ 
duced his credentials from the governor of Connecticut and the Senate decided he was 
not entitled to his seat by a vote of 23 to 18. 

This decision seems to have been generally acquiesced in since that time; nor is it in¬ 
tended by the committee to call its correctness in question. The principle asserted in 
that case is that the legislature of a State by making elections themselves shall provide 
for all vacancies which must occur at stated and known periods; and that the expiration 
of a regular term of service is not such a contingency as is embraced in the second section 
of the first article of the Constitution. 

The case now under consideration is wholly different in principle. The time when 
Mr. Sevier was to go out of office under his election made by the legislature of Arkansas 
was decided by lot, agreeably to the provisions of the Constitution on that subject. 
After the decision thus made, the legislature of Arkansas, not being in session, could not 
supply the vacancy; and the case, in the opinion of the committee, comes fairly within 
the provision of the Constitution contained in the third section of the first article, which 
declares, “and if vacancies happen by resignation or otherwise during the recess of the 
legislature of any State the executive thereof may make temporary appointments until 
the next meeting of the legislature, which shall then fill such vacancies.” 

The committee are of opinion that Mr. Sevier is entitled to his seat under the execu¬ 
tive appointment of the 17th of January, 1837, and therefore submit the following reso¬ 
lution: 

Resolved , That the Hon. Ambrose H. Sevier, appointed a Senator by the governor of 
the State of Arkansas, have the oath required by the Constitution administered to him. 

The Senate proceeded to consider the resolution; and, 

On motion by Mr. King, of Georgia, 

Ordered , That it lie on the table, and that the report be printed. 


AMBROSE H. SEVIER. 


9 


Wednesday, March 8, 1837. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary in relation to the appointment of the Hon. Ambrose H. Sevier; and, 

On the question, “Will the Senate agree to the resolution? ” it was determined in the 
affirmative—yeas 26, nays 19. 

On motion by Mr. Grundy, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Allen, Benton, Brown, Buchanan, Clay¬ 
ton, Cuthbert, Fulton, Grundy, Hubbard, Linn, Lyon, Nicholas, Niles, Norvell, Pierce, 
Preston, Rives, Robinson, Ruggles, Smith of Connecticut, Tipton, Walker, Wall, White, 
Wright, and Young. 

Those who voted in the negative are Messrs. Bayard, Black, Clay, Crittenden, Davis, 
Kent, King of Alabama, King of Georgia, Knight, McKean, Morris, Mouton, Prentiss, 
Robbins, Smith of Indiana, Southard, Swift, Webster, and Williams. 

Whereupon the oath prescribed by law was administered to the Hon. Mr. Sevier, and 
he took his seat in the Senai e. 


10 


SENATE ELECTION CASES. 


[Thirty-second Congress—Second session.] 

EGBERT 0. WINTHROP, 

Senator from Massachusetts from July 30,1850, to February 7,1851. 


Mr. Winthrop was appointed July 27,1850, to fill a vacancy happening in the Senate by the resig¬ 
nation of Daniel Webster. February 1, 1851, Robert Rantoul was elected by the legislature to fill 
the unexpired term. February 4, Mr. Rantoul not having appeared to take the seat, Mr. Winthrop 
offered a resolution, which was agreed to, “ that the Committee on the Judiciary inquire and report, 
to the Senate, as early as practicable, at what period the term of service of a Senator appointed by 
the executive of a State during the recess of the legislature thereof rightfully expires.” The com¬ 
mittee reported that a person so appointed had a right to the seat until the legislature, at its next 
meeting, should elect a person to fill the unexpired term, and the person elected should accept, and 
his acceptance appear to the Senate; that presentation of credentials implied acceptance; that these 
views were sustained by precedents. The report was debated, but no action taken, the whole 
subject being laid on the table. Mr. Winthrop vacated the seat February 7,1851, when Mr. Rantoul’s 
credentials were presented.. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from the Senate Journal, 2d sess. 31st Cong., 1850-’51, with the report of the committee from 
Senate Reports, 2d sess. 31st Cong., 1850-’51, No.269. 

The debates on the case are found in the Congressional Globe, 2d sess. 31st Cong., vol. 23, within 
pages 425-478, special references to which are inserted below. 


Tuesday, February 4, 1851. 

Mr. Winthrop submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

‘ Resolved, That the Committee on the Judiciary inquire and report to the Senate, as 
early as practicable, at what period the term of service of a Senator appointed by the 
executive of a State during the recess of the legislature thereof rightfully expires. ’ ’ 

[Mr. Winthrop accompanied the introduction of the resolution by some remarks on 
the practice of the Senate in regard to the subject, expressing a desire in his own case to 
hold his seat just so long as he was constitutionally entitled thereto and no longer. 
These remarks are found on pages 425, 426 of the Congressional Globe referred to.] 


Wednesday, February 5, 1851. 

Mr. Butler, from the Committee on the Judiciary, consisting of Messrs, Butler (chair¬ 
man), Berrien, Bradbury, Dayton, and Downs, who were instructed by a resolution of the 
Senate to inquire and report at what period the term of service of a Senator appointed 
by the executive of a State during the recess of the legislature thereof rightfully expires, 
submitted a report, which was ordered to be printed. 

REPORT OF COMMITTEE. 

In Senate of the United States. 

February 5,1851.—Submitted, and ordered to be printed. 

Mr. Butler made the following report: 

The Committee on the Judiciary, to whom was referred a resolution directing said 
committee to inquire and report at what period the term of service of a Senator ap¬ 
pointed by the executive of a State during the recess of the legislature thereof right¬ 
fully expires, have had the same under consideration, and report: 

The question presented by the resolution turns mainly upon the construction of the 
clause of Article I, section 2, of the Constitution of the United States, which provides 
that “ if vacancies happen, by resignation or otherwise, during the recess of the legisla¬ 
ture of any State, the executive thereof may make temporary appointments until the 
next meeting of the legislature, which shall fill such vacancies.” 

Your committee are of the opinion that the sitting member under executive appoint¬ 
ment has a right to occupy his seat until the vacancy shall be filled by the legislature 
of the State of which he is a Senator during the next meeting thereof. To fill such 
vacancy it is not only necessary to make an election, but that the person elected shall 
accept the appointment. And your committee are further of the opinion that such ac¬ 
ceptance should appear by the presentation to the Senate of the credentials of the mem¬ 
ber-elect, or other official information of the fact—at which t im e the office of the sitting 


ROBERT C. WINTHROP. 


11 


member terminates. When the member-elect is present and ready to qualify his ex¬ 
press acceptance is at once made known; and when his credentials are presented in his 
absence his acceptance may be fairly implied. 

These general views are sustained by precedents. An early one may be found in the 
Senate Journal of 1809, page 381, where the question was settled, after debate, by the 
adoption on the 6th of June of the following resolution: 

“Resolved, That the Hon. Samuel Smith, a Senator appointed by the executive of 
Maryland to fill the vacancy which happened in the office of Senator for that State, is 
entitled to hold his seat in the Senate of the United States during the session of the leg¬ 
islature of Maryland, which, by the proclamation of the governor of said State, was to 
commence on the 5th day of the present month of June, unless said legislature shall fill 
such vacancy by the appointment of a Senator, and this Senate be officially informed 
thereof. ’ ’ 

The precedent in this case has been uniformly followed from that time to the present 
in the many cases that have arisen involving the same question. 

[A list of precedents accompanying the report is found annexed to the report in the 
volume of Senate Reports referred to in the head-note. It is not printed here, as all the 
cases are included in the list of appointments on page 52 of this book.] 

Friday, February 7, 1851. 

Mr. Winthrop presented the credentials of the Hon. Robert Rantoul, jr., elected a 
Senator by the legislature of the Commonwealth of Massachusetts to fill the vacancy 
occasioned by the resignation of the Hon. Daniel Webster; which were read. 

[Mr. Winthrop stated that he presented the credentials “with the understanding 
that, agreeably to the recent report of the Judiciary Committee, the presentation of the 
credentials would imply an acceptance on the part of the Senator-elect, so far forth at 
least as to terminate the office of the sitting member.” These remarks are found on 
pages 459,460 of the Congressional Globe referred to.] 

Mr. Clay moved to take up the report of the committee with the view of deciding 
whether the retiring member is entitled to his seat.* 

[Some remarks on the report are found on page 460 of the Congressional Globe re¬ 
ferred to.] 

Mr. Davis, of Massachusetts, submitted the following resolution; which was considered 
by unanimous consent: 

11 Resolved, That a Senator appointed by the executive of a State to fill a vacancy is 
entitled to hold his seat until the Senate is satisfied that a successor is elected and has 
accepted the office: Provided, Such election and acceptance take place during the session 
of the legislature held next after the vacancy occurs, and that such acceptance ought not 
to be inferred from the mere presentation to the Senate of the credentials of the newly- 
elected Senator. ’ ’ 

[A debate on the question whether the right to a seat under executive appointment 
expires on the day of the meeting of the legislature or not until an election has taken 
place is found on pages 460-463.] 

Mr. Rhett moved to amend the resolution of the gentleman from Massachusetts by 
striking out all after the word “resolved” and inserting the following: 

“That a Senator holding a seat by appointment of the executive of a State can only fill 
the same ‘ until the next meeting of the legislature ’ thereof, at which time it devolves 
upon the legislature of the State to fill the vacancy then existing. ”f 

[The debate on the same question is continued on pages 463-465 of the Congressional 
Globe referred to.] 

An amendment having been proposed by Mr. Rhett, on motion by Mr. Hale that the 
resolution lie on the table, it was determined in the negative—yeas 22, nays 25. 

On motion by Mr. Rhett, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Benton, Bradbury, Butler, Chase, 
Davis of Mississippi, Dickinson, Douglas, Downs, Felch, Gwin, Hale, Hamlin, Hunter, 
Jones, King, Miller, Pearce, Phelps, Pratt, Sturgeon, Upham, and Wales. 

Those who voted in the negative are Messrs. Badger, Baldwin, Bell, Berrien, Borland, 
Clarke, Davis of Massachusetts, Dodge of Wisconsin, Dodge of Iowa, Foote, Greene, Man- 
gum, Mason, Morton, Norris, Rhett, Rusk, Smith, Soul6, Spruance, Turney, Underwood, 
Walker, Whitcomb, and Yulee. 

[The debate on the same subject is continued on pages 465-467 of the Congressional 
Globe referred to.] 


* This motion is taken from the Congressional Globe. It does not appear in the Senate Journal, 
t This amendment is taken from the Congressional Globe. It does not appear in the Senate Jour¬ 
nal. 



12 


SENATE ELECTION CASES. 


Saturday, February 8, 1851. 

The Senate resumed the consideration of the resolution submitted yesteday by Mr. 
Davis, of Massachusetts, in relation to the duration of an appointment made by the execu¬ 
tive of a State to fill vacancies in the Senate, and after debate (which is found on pages 
477, 478 of the Congressional Globe referred to), 

Mr. Baldwin proposed the following resolution as an amendment to the resolution sub¬ 
mitted by the Senator from Massachusetts: 

“ Resolved , That a Senator appointed by the executive of a State in consequence of the 
happening of a vacancy during the recess of the legislature is entitled to hold his seat 
under the temporary appointment of the executive until such vacancy is filled by the legis¬ 
lature at the next session thereof, and the person appointed to fill the same shall appear 
and be qualified therefor, pursuant to the requirement of the Constitution.” * 

[Remarks to the effect that nothing practical was before the Senate, Mr. Winthrop 
having vacated his seat and Mr. Rantoul not having appeared, are found on page 478 of 
the Congressional Globe referred to. ] 

On motion by Mr. Hale, 

Ordered , That it lie on the table. 

♦This resolution is taken from the Congressional Globe. It does not appear in the Senate Jour 

nal. 



ARCHIBALD DIXON. 


13 


[Thirty-second Congress—Second session.] 

ARCHIBALD DIXON, 

Senator from Kentucky from December 20, 1852, till March 3,1855. 


December 15, 1851, Henry Clay addressed a letter to the general assembly of Kentucky resigning 
his seat in the Senate, “ to take effect on the first Monday of September, 1852.” December 30,1851, 
Archibald Dixon was elected by the legislature to fill that unexpired term. June 29,1852, during 
the recess of the legislature, Henry Clay died. July 6, the governor appointed David Meriwether 
Senator “ until the time the resignation of Henry Clay takes effect.” Mr. Meriwether’s credentials 
were presented and he took his seat July 15, and held it until Congress adjourned August 31. Decem¬ 
ber 6, the Senate reassembled, Mr. Meriwether did not appear, and Mr. Dixon appeared and pre¬ 
sented his credentials. Objection was made to his taking the oath of office, on the ground that the 
seat belonged to Mr. Meriwether; that Mr. Meriwether had been appointed to fill a vacancy happen¬ 
ing by the death of a Senator, and that he had a right to the seat until the next meeting of the legis¬ 
lature, and that it was not in the power of the governor to limit his term of office to the first Monday 
in September, 1852. The seat was vacant until December 20, when the Senate by a vote of 27 yeas 
to 16 nays resolved that Mr. Dixon had been duly elected “to fill the vacancy in the Senate occar 
sioned by the resignation of the Hon. Henry Clay, and was entitled to a seat therein.” 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Senate Journals, 1st and 2d sess. 32d Cong., 1851-’52and 1852- 53. There being no 
report of a committee in the case, an extract from the remarks of Mr. Rusk (page 93 of the Con¬ 
gressional Globe, vol. 26, 2d sess. 32d Cong., December 20, 1852) is given, which states briefly the 
main points under discussion by the Senate. 

Special references to each day’s debates on the subject, most of which are found within pages 
1-96 of the Congressional Globe above referred to, are inserted below. 

[Extract from remarks of Thomas J. Rusk, of Texas, in Senate, December 20,1852.] 

“The following facts make up the case: On the 17th of December, 1851, Henry Clay 
was a Senator from Kentucky, chosen by the legislature for six years, which would have 
expired on the 3d of March, 1855. Being so a Senator, he resigned by a communication 
to the legislature of Kentucky, declaring that it was to take effect on the first Monday 
in September, 1852. The legislature, then in session, received the resignation, and chose 
Mr. Dixon to fill the vacancy thus to occur from the first Monday in September, 1852, 
to the 3d day of March, 1855. The legislature then adjourned. On the 29th day of 
June, 1852, during the recess of the legislature of Kentucky, Mr. Clay died, and the 
governor of that State made a ‘ temporary appointment ’ of Mr. Meriwether as a Sena¬ 
tor from Kentucky, to hold the seat until the first Monday of September, 1852. Mr. Meri¬ 
wether immediately took the vacant seat, and held it until Congress adjourned on the 
last day of August, 1852. On the 6th of December, 1852, the Senate reassembles, Mr. 
Meriwether does not appear, and Mr. Dixon appears and presents his credentials, and 
claims the vacant seat. 

“ Manif estly, Mr. Dixon is one of two Senators 4 chosen by the legislature ’ of Kentucky 
‘ for six years, ’ and he was chosen to fill a vacancy which has happened in the term of 
Mr. Clay. 

4 ‘ The whole question turns on the point, how did this vacancy happen ? Mr. Clay re¬ 
signed, fixing the first Monday of September as the day when he should vacate his seat, 
and died, nevertheless, a Senator before that day arrived. Mr. Dixon was appointed by 
the legislature when in session, before not only the day which Mr. Clay’s resignation 
fixed for his retirement, but also before Mr. Clay’s death. 

“We who maintain Mr. Dixon’s title insist that the vancancy happened by Mr. Clay’s 
resignation. On the contrary, those who deny Mr. Dixon’s title insist that the vacancy 
happened by Mr. Clay’s death. 

“Four questions arise: 

‘ 4 First. Can a Senator resign ? 

4 4 Second. Can a Senator resigning appoint a future day for his retirement from the Senate ? 

4 4 Third. Can the proper appointing power receive such a resignation, and prospectively 
fill the vacancy ? 

4 4 Fourth. If the legislature so prospectively fill the vacancy, can the appointment be 
defeated by the death of the resigning Senator before the arrival of the day fixed for his 
retirement from the Senate? 

“If a Senator can resign, and can so resign prospectively, and if the legislature can 
so fill the vacancy prospectively, and if their action cannot be defeated by the death of 
the resigning Senator, then Mr. Dixon’s title is good, valid, and complete. 

“The first question is expressly decided by the Constitution, which declares that va¬ 
cancies may 4 happen by resignation. ’ 

“The second question is decided by an unbroken succession of precedents from the 


14 


SENATE ELECTION CASES. 


foundation of the Government. Mr. Bledsoe so resigned, fixing a future day; so did 
Mr. Clay in 1842; so did Mr. Berrien in 1852; and so did Mr. Foote in 1852. 

“ The third question is answered with equal distinctness by precedents. The legis¬ 
lature of Kentucky prospectively filled the vacancy made by Mr. Clay’s resignation in 
1842; the governor of Georgia prospectively filled the vacancy of Mr. Berrien in 1852; 
and the governor or legislature of Mississippi prospectively filled the vacancy of Mr. 
Foote in 1852. 

“ The only question remaining is the fourth: Can the death of the resigning Senator 
after the legislature has prospectively filled the vacancy, and before the day fixed for 
his retirement, defeat the appointment of his successor already made?” 

[Transcript of proceedings from the Journals.] 

Thursday, July 15, 1852. 

Mr. Bright presented the credentials of the Hon. David Meriwether, appointed a Sen¬ 
ator by the executive of the State of Kentucky until the first Monday in September 
next, to fill the vacancy occasioned by the death of the Hon. Henry Clay; which were 
read, and the oath prescribed by law having been administered to Mr. Meriwether, he 
took his seat in the Senate. 

[A debate on the question whether Mr. Meriwether’s credentials should be referred to 
a committee on account of the irregularity they contained of limiting the term of service 
to the first Monday in September is found on pages 1783,1784 of the Congressional Globe, 
vol. 24, part 3, 1st sess. 32d Cong., 1851-’52.] 

Monday, December 6, 1852. 

Mr. Jones, of Tennessee, presented the credentials of the Hon. Archibald Dixon, 
chosen a Senator by the legislature of the Commonwealth of Kentucky, to serve for the 
unexpired term rendered vacant by the resignation of the Hon. Henry Clay, to take effect 
from the first Monday of September, 1852, until the end of the term for which said Henry 
Clay was elected; which were read. 

An objection being made by Mr. Gwin to administering the oath prescribed by law to 
the Hon. Mr. Dixon, a debate ensued, and the following resolution was submitted by 
Mr. Gwin: 

“Resolved , That the credentials of Archibald Dixon, esq., be referred to a select com¬ 
mittee of five, to consider and report thereon. ’ ’ 

And Mr. Mangum having proposed the following amendment: Insert at the end of 
the resolution, ‘ ‘ and that the said Archibald Dixon be now qualified and permitted to 
take his seat in the Senate, and occupy the same pending the action of the said commit¬ 
tee,’-’ 

By unanimous consent the proceeding thereon was suspended. 

******* 

The Senate resumed the consideration of the credentials of the Hon. Archibald Dixon, 
and, after further debate, on motion, and by unanimous consent, the proceeding thereon 
was suspended for the purpose of receiving a report of a committee. 

******* 

The Senate resumed the consideration of the credentials of the Hon. Archibald Dixon, 
with the resolution submitted by Mr. Gwin. 

[The debates of this day on the subject are found on pages 1-5 of the volume of the 
Congressional Globe referred to in the head-note. They include a discussion of the 
prima facie right of Mr. Dixon to the seat pending the action of the Senate. ] 

Tuesday, December 7, 1852. 

The Senate resumed the consideration of the credentials, &c. 

[The debate is found on pages 12-19 of the Globe, j 

Wednesday, December 8, 1852. 

The Senate resumed the consideration of the credentials of the Hon. Archibald Dixon, 
with the resolution submitted by Mr. Gwin, and, 

On motion by Mr. Badger, 

Ordered , That the further consideration thereof be postponed to Monday next. 

Monday, December 13, 1852. 

The Senate resumed the consideration of the credentials of the Hon. Archibald Dixon, 
with the resolution submitted by Mr. Gwin. 

On motion by Mr. Hunter, and by unanimous consent, 

Ordered, That, until the question thereon be decided, the name of Mr. Meriwether be 
omitted in any call of the yeas and nays. 


ARCHIBALD DIXON. 


15 


Mr. Mangnm withdrew the amendment which he offered, and Mr. Jones, of Tennessee, 
offered the following as an amendment to the proposition of Mr. Gwin, to strike out all 
alter the word “resolved,” and insert: “ThattheHon. Archibald Dixon was duly elected 
by the legislature of the State of Kentucky to fill the vacancy in the Senate occasioned 
by the resignation of the Hon. Henry Clay, and is entitled to a seat therein.” * 

[The debate is found on pages 43-47 of the Globe.] 

Wednesday, December 15,1852. 

The Senate resumed the consideration of the credentials, &c. 

[The debate is found on pages 58-62 of the Globe.] 

Thursday, December 16, 1852. 

The Senate resumed the consideration of the credentials, &c. 

[The debate is found on pages 69-76 of the Globe.] 


Monday, December 20, 1852. 

The Senate resumed consideration of the credentials of the Hon. Archibald Dixon, 
with the resolution submitted by Mr. Gwin. 

On motion by Mr. Jones, of Tennessee, to amend the resolution by striking out, aftei 
the word “resolved,” “that the credentials of Archibald Dixon, esq., be referred to the 
Committee on the Judiciary, who shall consider and report thereon; ” and, in lieu thereof, 
inserting, ‘ ‘ that the Hon. Archibald Dixon was duly elected by the legislature of the 
State of Kentucky to fill the vacancy in the Senate occasioned by the resignation of the 
Hon. Henry Clay, and is entitled to a seat therein,” it was determined in the affirma¬ 
tive—yeas 27, nays 16. 

On motion by Mr. Hale, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Adams, Atchison, Badger, Bell, Brooke, 
Butler, Chase, Clarke, Cooper, Davis, Dawson, Dodge of Iowa, Fish, Geyer, Hale, Jones 
of Tennessee, Miller, Morton, Pearce, Rusk, Seward, Smith, Spruance, Sumner, Under¬ 
wood, Upham, and Wade. 

Those who voted in the negative are Messrs. Bayard, Borland, Bradbury, Bright, 
Cass, Cathcart, De Saussure, Dodge of Wisconsin, Douglas, Downs, Felch, Gwin, Mason, 
Norris, Toucey, and Weller. 

So the proposed amendment was agreed to. 

On the question to agree to the resolution as amended, it passed in the affirmative; 
and the oath prescribed by law was administered to Mr. Dixon, and he took his seat 
in the Senate. 

[The debate is found on pages 90-96 of the Globe.] 

COMPENSATION OF MR. MERIWETHER. 

Tuesday, December 21,1852. 

Mr. Rusk submitted the following resolution; which was read: 

‘ 1 Resolved, That the Hon. David Meriwether, late a member of the Senate from the State 
of Kentucky, be paid his mileage and per diem up to the 20th day of December inclu¬ 
sive. ’ 1 

[Some remarks in favor of the adoption of the resolution are found on page 105 of the 
Congressional Globe referred to in the head-note. ] 


Wednesday, January 5, 1853. 

The resolution submitted by Mr. Rusk the 21st of December last, to pay the Hon. 
Mr. Meriwether his per diem and mileage, was read the second time, and considered as 
in Committee of the Whole; and, no amendment being made, it was reported to the 
Senate. 

Ordered , That it be engrossed and read a third time. 

The said resolution was read a third time, by unanimous consent. 

Resolved , That it pass. 

[Remarks on the adoption of the resolution are found on pages 220-221 of the Congres¬ 
sional Globe referred to in the head-note. ] 


* This amendment is taken from the Globe. It does not appear in the Senate Journal. 



16 


SENATE ELECTION CASES. 


Thirty-third Congress—First session. 

SAMUEL S. PHELPS, 

Senator from Vermont from March 4, 1839, to March 3, 1851, and from 
January 19, 1853, to March 17, 1854. 

Mr. Phelps was appointed by the governor of Vermont January 17, 1853, during the recess of the 
legislature, to fill a vacancy in the Senate happening by the death of William IJpham. His creden¬ 
tials were presented and lie took his seat January 19. 'l : e legislature met in October and adjourned 
in December without electing a Senator to fill the unexpired term. Mr. Phelps had held the seat 
during the remainder of the second session of the Thirty-second Congress, ending March 3, and 
during the special session of the Senate March 4 to April 11. December 29 he again attended. Jan¬ 
uary 4, 1854, the Senate resolved that the Committee on the Judiciary inquire whether he was enti- 
titled to retain his seat. January 16 the committee reported the resolution, “ that the Hon. Samuel 
S. Phelps is entitled to his seat in the Senate of the United States.” It was accompanied by a minor¬ 
ity report adverse to the right of Mr. Phelps to a seat. March 16 the resolution reported by the com¬ 
mittee was rejected by a vote of 12 yeas to 26 nays, and it was “ Resolved, That the Hon. Samuel S. 
Phelps is not entitled to retain his seat in the Senate of the United States.” 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from the Senate Journal, 1st sess. 33d Cong., 1853-’54, together with the report of the committee 
(majority and minority), from Senate Reports, 1st sess. 33d Cong., vol. 1, 1853~’54, Report No. 34. 

The debates in the case, which are extended, are found in the Congressional Globe, vol. 28, part 1, 
1st sess. 33d Cong., and in the Appendix to the Congressional Globe, vol. 29, 1st sess., 32d Cong. 

Special references to the debates of each day are inserted below. 

Wednesday, January 19, 1853. 

Mr. Foot presented the credentials of the Hon. Samuel S. Phelps, appointed a Sen¬ 
ator by the governor of the State of Vermont to fill the vacancy occasioned by the 
death of the Hon. William Upham; which were read. 

The oath prescribed by law was administered to Mr. Phelps, and he took his seat 
in the Senate. 


Tuesday, January 3, 1854. 

Mr. Seward submitted the following resolution for consideration: 

“ Whereas the Hon. Samuel S. Phelps was appointed by his excellency the gov¬ 
ernor of Vermont, in the recess of the legislature of that State, to fill a vacancy in 
the Senate of the United States which had happened by the death of the Hon. Will¬ 
iam Upham, a Senator whose term of six years would have continued until the 4th 
of March, 1855; and 

“ Whereas it is understood that since that temporary appointment was made the 
legislature of Vermont has been convened at their annual session and has adjourned 
without filling such vacancy: Therefore, 

11 Resolved, That the Committee on the Judiciary inquire whether the Hon. Samuel 
S. Phelps is entitled to retain a seat in the Senate of the United States.” 

[Mr. Seward accompanied the introduction of the resolution by a statement of the 
facts in the case, which statement is found on page 103 of the Congressional Globe 
referred to in the head-note.] 


Wednesday, January 4, 1854. 

The Senate proceeded to consider the resolution submitted by Mr. Seward respect¬ 
ing the right of the Hon. Samuel S. Phelps to a seat in the Senate, and the resolu¬ 
tion was agreed to. 

[A short debate is found on pages 115-117 of the Globe.] 

Monday, January 16, 1854. 

Mr. Pettit, from the Committee on the Judiciary, who were instructed by a reso¬ 
lution of the Senate “to inquire whether the Hon. Samuel S. Phelps is entitled to 
retain a seat in the Senate of the United States,” submitted a report (No. 34), also 
the views of the minority of the committee, in relation to the subject: which were 
ordered to be printed. 

The Senate proceeded to consider the said report, and, 

On motion by Mr. Pettit, 

Ordered, That the further consideration thereof be postponed to, and made the 
order of the day for, Wednesday next. 


SAMUEL S. PHELPS. 


17 


REPOBT OF COMMITTEE. 

[The committee consisted of Messrs. Butler (chairman), Toucey, Bayard, Geyer, Pettit, 
and Toombs.] 

In the Senate of the United States. 

January 16, 1854.—Ordered to be printed. 

Mr. Pettit made the following report; which was considered, postponed to, and made 
the special order for the day for, Wednesday next, January 18, 1854: 

The Committee on the Judiciary, to whom was referred a resolution of the Senate of 
the 4th of January, 1854, have had the same under consideration, and have directed me 
to make the following report: 

The following is the resolution referred to the committee, to wit: 

Whereas the Hon. Samuel S. Phelps was appointed by his excellency the governor 
of Vermont, in the recess of the legislature of that State, to fill a vacancy in the Senate 
of the United States which had happened by the death of the Hon. William Upham, a 
Senator, whose term of six years would have continued until the 4th of March, 1855; 
and 

1 ‘ Whereas it is understood that since that temporary appointment was made the legis¬ 
lature of Vermont has been convened at their regular session, and has adjourned without 
filling such vacancy: Therefore, 

“Resolved , That the Committee on the Judiciary inquire whether the Hon. Samuel S. 
Phelps is entitled to retain a seat in the Senate of the United States.” 

The clauses of the Constitution which bear upon this question may be found in the 
third section of the first article of that instrument, and read as follows: 

‘ ‘ The Senate of the United States shall be composed of two Senators from each State, 
chosen by the legislature thereof, for six years; and each Senator shall have one vote. 

Immediately after they shall be assembled, in consequence of the first election, they 
shall be divided, as equally as may be, into three classes. The seats of the Senators of 
the first class shall be vacated at the expiration of the second year, of the second class at 
the expiration of the fourth year, and of the third class at the expiration of the sixth 
year, so that one-third may be chosen every second year; and if vacancies happen by 
resignation or otherwise during the recess of the legislature of any State the executive 
thereof may make temporary appointments until the next meeting of the legislature, 
which shall then fill such vacancies. ’ ’ 

The committee do not think that the last clause of Article V. of the Constitution, 
which provides “ that no State, without its consent, shall be deprived of its equal suf¬ 
frage in the Senate,” has any bearing on this question. If a State refuses to appoint two 
Senators by some means known to the Constitution, it does consent to be deprived of its 
equal suffrage in the Senate. And in such case the Senate cannot supply the deficiency 
by creating a Senator; but it can determine upon the validity of his appointment, 
whether it comes from the legislature or the executive of the State. 

There are two modes by which Senators may be appointed, and whether appointed by 
the one or the other mode, they possess the same power and exercise the same rights and 
privileges and receive the same emoluments. These modes may be called primary and 
contingent The first rests with the legislature and the second with the executive of the 
State, when a vacancy happens in the recess of the legislature. 

The committee are of opinion that the framers of the Constitution, in providing these 
two modes by which Senators may be appointed, had in view the obvious propriety, if 
not necessity, of having two Senators from each State at all times in commission and 
ready for public service. The committee do not think that the language above quoted, 
1 ‘ the executive thereof may make temporary appointments until the next meeting of 
the legislature, ’ ’ is very perspicuous, definite, or concise in its phraseology or meaning, 
but, on the contrary, it is subject to two constructions. By one of these constructions 
both the power to appoint and the term of office of the appointee would terminate upon 
the meeting of the legislature, and thus leave the State for some days, until the legisla¬ 
ture could appoint and the new Senator reach the seat of government, without an “equal 
suffrage in the Senate,” a condition which the committee think it was the intention of 
the constitutional convention to avoid. ‘ ‘ The executive thereof may make temporary 
appointments until the next meeting of the legislature.” What may be done until the 
next meeting of the legislature ? May appointments be made until that time? Or may 
the appointee hold his office until that period and no longer? Or do both determine on 
the next meeting of the legislature? 

The committee think it is a limitation upon the power of the executive to make ap¬ 
pointments in the recess of the legislature, and which cannot be exercised after its next 
meeting; but that the force or effect of such appointment, viz,, the commission and office, 
continue until superseded by the action of the primary appointing power, or the expira- 

S. Doc. 11 - 2 



18 


SENATE ELECTION CASES. 


tion of the Senatorial term. In giving this exposition to this provision of the Constitu- 
tion, the committee believes it has consulted and gives effect to the spirit of that instru¬ 
ment, and has found the true intention and design of its framers, that the Senate should 
be composed of two Senators from each State. 

On the 6th of June, 1809, the Senate adopted the following resolution: 

“Resolved, That the Hon. Samuel Smith, a Senator appointed by the executive of 
Maryland to fill the vacancy which happened in the office of Senator for that State, is 
entitled to hold his seat in the Senate of the United States during the session of the 
legislature of Maryland, which, by the proclamation of the governor of said State, was to 
commence on the 5th day of the present month of June, unless said legislature shall fill 
such vacancy by the appointment of a Senator, and this Senate be officially informed 
thereof.” 

The Senate, in this instance, after able and full debate, has solemnly determined that 
the office of a Senator appointed by the executive does not end on the next meeting of 
the legislature, but that it may continue during its session. 

The construction that the office does not terminate on the meeting of the legislature 
has received the uniform approval of the Senate from that time till this; for in all in¬ 
stances (and they are numerous) the Senator appointed by the executive has not only 
held his office until the next meeting of the legislature, but until his successor was ap¬ 
pointed and made his appearance here to qualify. 

In the late cases of Mr. Winthrop and Mr. Rantoul, of Massachusetts, and of Mr. 
Meriwether and Mr. Dixon, of Kentucky, many able Senators, to whose opinions great 
deference is due, expressed their convictions that it was a limitation of time within which 
the appointment must be made, but that the office continued until superseded by the 
legislature. If, then, the office does not terminate on the meeting of the legislature, when 
will it terminate? Can meeting be construed into end, dissolution, or adjournment? 
Your committee think not. 

With these adjudications of the Senate, and the exposition in debate by able Senators, 
and in view of the propriety if not the necessity of having a full representation from 
each State in the Senate before us, and believing the language of the Constitution war¬ 
rants the interpretation we have given it, your committee have come to the conclusion 
that the Hon. Samuel S. Phelps is entitled to retain his seat, and offer for adoption the fol¬ 
lowing resolution: 

Resolved , That the Hon. Samuel S. Phelps is entitled to retain his seat in the Senate 
of the United States. 


MINORITY REPORT. 

The Committee on the Judiciary, to whom was referred the resolution of the Senate 
of the 4th instant, which reads as follows— 

“Resolved, That the Committee on the Judiciary inquire whether the Hon. Samuel S. 
Phelps is entitled to a seat in the Senate of the United States ”— 

Has reported thereon. 

As the undersigned dissent from the conclusions of a majority of their colleagues, they 
ask leave to submit the following report of the minority. The facts upon which the res¬ 
olution was founded are as follows: 

That the Hon. Samuel S. Phelps was appointed by his excellency the governor of the 
State of Vermont, in the recess of the legislature of that State, to fill a vacancy in the 
Senate of the United States which had occurred by the death of the Hon. William Up- 
ham, a Senator, whose term of six years would have continued until the 4th March, 
1855; and that since the temporary appointment by the governor of said State, the legis¬ 
lature of Vermont has been convened at their annual session, and adjourned without 
filling the vacancy, as prescribed by the Constitution, which reads as follows: 

“And if vacancies happen by resignation or otherwise, during the recess of the legis¬ 
lature of any State, the executive thereof may make temporary appointments until the 
next meeting of the legislature, which shall then fill such vacancies.” 

The question presented to the committee by the foregoing resolution may be thus 
stated: What shall be the operation of an appointment of a Senator made by the gov¬ 
ernor of a State in the recess of its legislature where the legislature has met and failed 
to fill the vacancy by an election? 

The decision of this question depends upon the construction of the above words of the 
Constitution. If the power to fill the vacancy is devolved exclusively upon the legisla¬ 
ture at its next meeting, then it would follow that the appointing power of the execu¬ 
tive would be exhausted; and the Senator appointed by him could, according to prece¬ 
dent, hold his seat only during the session of the legislature; or, in other words his 
commission would expire at the adjournment of the legislature. 


SAMUEL S. PHELPS. 


19 


The question may be presented in another point of view, which might possibly lead to 
a different conclusion. If the legislature has merely the potential capacity to fill the 
vacancy according to its discretion, then a failure to perform this function might leave 
the executive appointment good to fill a continuing vacancy. 

This reduces the question to this proposition, viz: Do the words of the Constitution 
impose a limitation upon the office or the appointing power ? 

Before stating the conclusion of the undersigned, it may be proper to cite the prece¬ 
dents which are applicable to the question under consideration. 

The first case upon record is as follows: George Bead, a Senator from the State of Dela¬ 
ware, resigned his seat upon the 18th day of September, 1793, aud during the recess of 
the legislature of said State. The legislature of the said State met in January, and ad¬ 
journed in February, 1794. Upon the 19th day of March, and subsequent to the adjourn¬ 
ment of the said legislature, Kensey Johns was appointed by the governor of said State 
to fill the vacancy occasioned by the resignation aforesaid. The Senate decided— 

That Kensey Johns was not entitled to a seat in the Senate of the United States, as a 
session of the legislature of the said State had intervened between the resignation of the 
said George Read and the appointment of the said Kensey Johns. 

Mr. Eaton, from the select committee to whom was referred, on the 5th instant, the 
motion “that Mr. Lanman be admitted to take the oath required by the Constitution,” 
together with the credentials of Mr. Lanman, submitted the following report: 

“That Mr. Lanman’s term of service in the Senate expired on the 3d March. On 
the 4th he presented to the Senate a certificate, regularly and properly authenticated, 
from Oliver Wolcott, governor of the State of Connecticut, setting forth that the Presi¬ 
dent of the United States had desired the Senate to convene on the 4th day of March, 
and had caused official notice of that fact to be communicated to him. ’ ’ 

The certificate of appointment is dated the 8th of February, 1825, subsequent to the 
time of the notification to him by the President. The certificate further recites that at 
the time of its execution the legislature of the State was not in session, and would not 
be until the month of May. The Senate decided that Mr. Lanman was not entitled to 
a seat in the Senate of the United States. 

In May, 1809, the President of the Senate laid before that body a letter from the Hon. 
Samuel Smith, of Maryland, stating that, being appointed by the executive of that State 
a Senator, in conformity with the Constitution, until the next meeting of the legisla¬ 
ture, which will take place on the 5th day of June next, he submits to the determina¬ 
tion of the Senate the question whether an appointment under the executive of Mary¬ 
land to represent that State in the Senate of the United States will, or will not, cease 
on the first day of the meeting of the legislature thereof. 

The Senate decided that the Hon. Samuel Smith, a Senator appointed to fill a vacancy, 
was entitled to hold his seat in the Senate of the United States during the session of the 
legislature of Maryland, which, by the proclamation of the governor of said State, was to 
convene on the 5th day of the present month of June, unless said legislature shall fill 
such vacancy by the appointment of a Senator, and the Senate be officially informed 
thereof. 

The chairman of the Committee on the Judiciary, at the second session of the Thirty- 
first Congress, to whom was referred the resolution of the Senate directing said committee 
to inquire and report at what period the term of service of a Senator appointed by the 
executive of a State, during the recess of the legislature thereof, rightfully expires, sub¬ 
mitted the following report: 

“The question presented by the resolution turns mainly upon the construction of the 
clause of Article XVIII., section 2, of the Constitution of the United States, which provides 
that ‘ if vacancies happen by resignation or otherwise, during the recess of the legisla¬ 
ture of any State, the executive thereof may make temporary appointments until the 
next meeting of the legislature, which shall fill such vacancies.’ ” 

Your committee are of the opinion that the sitting member, under executive appoint¬ 
ment, has a right to occupy his seat until the vacancy shall be filled by the legislature 
of the State of which he is a Senator, during the next meeting thereof. To fill such 
vacancy it is not only necessary to make an election, but that the person elected shall 
accept the appointment. And your committee are further of the opinion that such ac¬ 
ceptance should appear by the presentation to the Senate of the credentials of the mem¬ 
ber-elect, or other official information of the fact, at which time the office of the sitting 
member terminates. When the member-elect is present and ready to qualify, his express 
acceptance is at once made known; and when his credentials are presented in his absence 
his acceptance may be fairly implied. 

Perhaps it would have been as well if the strict and literal meaning of the words, 
“until the next meeting of the legislature,” had been observed on the first occasion in 
which their construction was brought in question; that would have had the merit of 


20 


SENATE ELECTION CASES. 


certainty, but a certainty that might have been too severe for the true and liberal in 
tendment of the Iramers of the Constitution. They certainly did mean to say that an 
executive appointment should terminate when legislative jurisdiction shall commence 
or he exercised. To give this severe construction to the words quoted would in all cases 
leave a State unrepresented for a time, that depending on legislative action; rather than 
lead to that result the Senate, under the precedents quoted, seem to have regarded the 
“next meeting of the legislature ” as synonymous with the next session of the legislature, 
during which time the member under executive appointment might hold his seat, unless 
it should be filled by an election before the termination of a session; and this was prob¬ 
ably in analogy to that provision of the Federal Constitution by which power is vested 
in the President “ to fill up all vacancies that may happen during the recess of the 
Senate by granting commissions which shall expire at the end of their next session. 

As there was no reference to a committee, and no reported debate in the case of Mr. 
Smith, of Maryland, which made the precedent, the essential reasons which governed 
the judgment of the Senate are not given; the case, however, seems to have been well 
considered. There are two considerations which seem to have entered into that judg¬ 
ment: First, that the State legislature, after their meeting, should have an opportunity of 
consultation in making a choice of Senator, and the State, during such term of consulta¬ 
tion, should not be deprived of a representative in the Senate. The utmost limit con¬ 
templated for the exercise of this legislative jurisdiction was the term of the sitting of 
the legislature. The second consideration was a confident assumption that the office 
would be filled during such term. The idea that a session would pass over without an 
election was not in the mind of the Senate. The Senate went very far when it gave an 
interpretation to the words referred to beyond their literal meaning, limiting the tenure 
of office of the sitting member to the day of the meeting of the legislature. This met 
with a decided opposition from a respectable minority, and in subsequent cases distin¬ 
guished Senators maintained the same view of the Constitution. By the report of the com¬ 
mittee we are required to recognize as authority and to enlarge this liberality of con¬ 
struction—to say that the words ‘ ‘ until the next meeting of the legislature ’ ’ may be 
construed to mean not only until and during the session of the next legislature, but 
beyond the next meeting of the legislature; in other terms, that until the next meeting, 
&c., may operate under the authority of precedent to give the sitting member a right to 
hold his seat beyond the meeting of the legislature. We Cannot agree that by the au¬ 
thority of any precedent these words ‘ ‘ until and beyond ’ ’ shall have such a meaning 
as will control the import of the Constitution, both in its spirit and letter. 

The Senate of the United States is composed of organized constituencies, the State 
legislatures; to them belong the power primarily of electing their Senators, when they 
are in session, at the happening of the vacancy, and at their first meeting when it happens 
in their recess, and on them devolves the exclusive jurisdiction of filling such vacancies. 
Their right and authority to fill or supply vacancies which have been temporarily filled 
by executive appointment areas absolute and exclusive as was their power in an original 
election. When their power is brought into existence it must supersede all others, with 
this qualification, and that according to precedent, that they have a session to make the 
choice. In our view it does not depend on the actual exertion of the power to elect, 
but on its existence. A Senator, under an executive appointment, may or may not rep¬ 
resent the political views of his State; he maybe the mere personal favorite of the gov¬ 
ernor. The Senate, as far as practicable, should be made to represent its constitutional 
constituency, and in this respect should preserve the republican feature of our Union. 

In nothing that is said here would we have it inferred that we regard the sitting mem¬ 
ber whose case is before us as one who may not claim his seat on high grounds and re¬ 
spectable authority. The sanction of a majority of the committee, the opinions of emi¬ 
nent jurists out of this body, go far to sustain his claim. But from the views of the 
undersigned above presented we do not think the Hon. Samuel S. Phelps is entitled to 
hold his seat in this body. 

A. P. BUTLER. 

J. A. BAYARD. 

Wednesday January 18, 1854. 

The Senate resumed the consideration of the report of the Committee on the Judiciary 
on the right of the Hon. S. S. Phelps to a seat in the Senate; and, 

On motion of Mr. Pettit, 

Ordered , That the further consideration thereof be postponed until Wednesday next. 

[Some remarks on the postponement of the resolution on account of sickness of Mr 
Phelps are found on pages 196,197 of the Congressional Globe referred to in the head 
note. I 


SAMUEL S. PHELPS. 


21 


Thursday, January 26, 1854. 

The Senate resumed the consideration of the resolution reported by the Committee 
on the Judiciary respecting the right of the Hon. Samuel S. Phelps to a seat in the Senate; 
and, 

After debate, 

On motion by Mr. Butler, 

Ordered , That it lie on the table. 

[The debate on the subject on this day is found on pages 250-252 of the Globe referred 
to. It includes remarks by Mr. Pettit, stating the position of the committee. ] 

Wednesday, February 1, 1854. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary in relation to the right of the Hon. Samuel S. Phelps to a seat in the Sen¬ 
ate; and, 

After debate, 

On motion by Mr. Butler, the Senate adjourned. 

[The debate is found or^pages 303, 304 of the Globe referred to. Mr. Bayard’s speech 
on this day against the resolution reported by the majority of the committee is reported 
in the Appendix to the Congressional Globe referred to in the head-note.] 

Thursday, February 2, 1854. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary in relation to the right of the Hon. Samuel S. Phelps to a seat in the Sen¬ 
ate; and, 

After debate, 

On motion by Mr. Pratt, 

Ordered , That the further consideration thereof be postponed until Thursday next, the 
9th instant. 

[The debate is found on pages 314-318 of the Congressional Globe referred to. It in¬ 
cludes remarks by Mr. Butler, stating the position of the minority of the committee. A 
speech made by Mr. Phelps on this day in vindication of his title to the seat is found on 
pages 356-359 of the Appendix to the Congressional Globe referred to. ] 

Wednesday, March 8, 1854. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary on the right of the Hon. Samuel S. Phelps to a seat in the Senate; and, 
After debate, 

On motion by Mr. Foot, 

Ordered, That the further consideration thereof be postponed until to-morrow. 

[The debate, consisting largely of remarks by Mr. Phelps, is found on pages 359-365 
of the Appendix to the Congressional Globe referred to. 1 

Monday, March 13,1854. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary on the right of the Hon. Samuel S. Phelps to a seat in the Senate; and, 
After debate, 

On motion, 

Ordered , That the further consideration thereof be postponed until to-morrow. 

[The debate is found on page 610 of the Congressional Globe. Mr. Phelps’s remarks 
are on pages 365-369 of the Appendix, and Mr. Badger’s reply to a portion of Mr. 
Phelps’s argument is on pages 369-371 of the Appendix.] 

Wednesday, March 15, 1854. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary on the right of the Hon. Samuel S. Phelps to a seat in the Senate; and, 
After debate, 

On motion by Mr. Mason, 

Ordered, That the further consideration thereof be postponed until to-morrow. 

[A speech by Mr. Foot, in vindication of the right of his colleague to the seat, which 
was the only speech made on the subject this day, is found on pages 630-632 of the 
Congressional Globe.] 

Thursday, March 16, 1854. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary on the right of the Hon. Samuel S. Phelps to a seat in the Senate; and, 
After debate, on the question of agreeing thereto, it was determined in the negative- 
yeas 12, nays 26. 


22 


BENATE ELECTION CASES. 


On motion by Mr. Foot, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Clayton, Dodge of Iowa, Everett, Fes¬ 
senden, Foot, Geyer, Morton, Norris, Sebastian, Wade, Walker, and Williams. 

Those who voted in the negative are Messrs. Adams, Allen, Atchison, Badger, Bayard, 
Brodhead, Brown, Butler, Clay, Dodge of Wisconsin, Douglas, Evans, Fish, Fitzpatrick, 
Hamlin, Hunter, Mason, Pearce, Pratt, Rusk, Seward, Shields, Slidell, Stuart, Sumner, 
and Toucey. 

So the resolution was not agreed to; and it was 

Resolved, That the Hon. Samuel S. Phelps is not entitled to retain his seat in the Sen¬ 
ate of the United States. 


COMPENSATION OF ME. PHELPS. 

Mr. Badger submitted the following resolution; which was read the first and second 
times, by unanimous consent, and considered as in Committee of the Whole: 

“ Resolved, That there be paid out of the contingent fund oftthe Senate, to the Hon. 
Samuel S. Phelps, a sum equal to the amount of mileage and 'per diem compensation 
of a Senator from the day of his attendance at the present session to this day, inclu¬ 
sive.’’ 

And no amendment being made, it was reported to the Senate. 

The resolution was read the third time by unanimous consent. 

Resolved, That it pass. 

[The debate is found on pages 639-646 of the Congressional Globe. ] 

Friday, March 17, 1854. 

On motion by Mr. Foot, the vote on passing the resolution, submitted yesterday by 
Mr. Badger, to pay to the Hon. Samuel S. Phelps his mileage and per diem, was recon¬ 
sidered. 

The Senate resumed the consideration of the said resolution; and, having been amended 
on the motion of Mr. Foot, it was agreed to, as follows: 

‘ ‘ Resolved, That there be paid to the Hon. Samuel S. Phelps the amount of mileage 
and per diem compensation of a Senator from the day of his attendance at the present 
session to this day, inclusive.” 

[Brief remarks are found on page 676 of the Congressional Globe. ] 


JARED W. WILLIAMS. 


23 


[Thirty-third Congress—First session. ] 

JARED W. WILLIAMS, 

Senator from New Hampshire from December 12, 1853, to August 4, 1854. 

Mr. Williams was appointed to fill a vacancy happening by the death of Charles G. Atherton. 
After his appointment the legislature met and adjourned without electing a Senator to fill the un¬ 
expired term. The circumstances of the meeting and adjournment of the legislature were as fol¬ 
lows : The constitution of New Hampshire provided that “ the senate and house shall assemble 
every year on the first Wednesday of June, and at such other times as they may judge necessary; and 
shall dissolve and be dissolved seven days next preceding the said first Wednesday of June.” It 
further provided (article 50, part 2) that “ the governor, with advice of council, shall have full power 
and authority during the sessions of the general court to adjourn or prorogue it to any time the two 
houses may desire, and to call it together sooner than the time to which it may be adjourned or 
prorogued, if the welfare of the State should require the same.” July 15,1854, the governor, in a 
communication to the legislature, said: “Having been informed by a joint committee of both 
branches of the legislature that you have finished the business before you, and are ready to ad¬ 
journ, by the authority vested in me, I do hereby adjourn the legislature to the last Wednesday of 
May next.” The Judiciary Committee of the United States Senate reported that this was anad- 
journment “ sine die , in the legal import of the term,” and that “ the right of representation under 
appointment” had expired. Mr. Williams claimed that even if this were so, he was entitled to his 
seat, notwithstanding precedents to the contrary; but claimed further that this was an adjourn¬ 
ment to a day certain, and not an adjournment sine die . The Senate concurred in the report of the 
Committee, and “Resolved, That the ‘right of representation under appointment’ had expired.” 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from the Senate Journal, 1st sess. 33d Cong., 1853-’54, together with the report of the committee 
from Senate Reports, 1st sess. 33d Cong., vol. 2,1853-’54, No. 385. 

The debate in the case, which is brief, is found on pages 2208-2211 of the Congressional Globe, vol. 
28, part 3,1st sess. 33d Cong. 

Monday, December 12, 1853. 

Mr. Weller presented the credentials of the Hon. Jared W. Williams, appointed a Sena¬ 
tor by the executive of the State of New Hampshire to fill the vacancy occasioned by the 
death of the Hon. Charles G. Atherton, which were read; and the oath prescribed by law 
having been administered to Mr. Williams, he took his seat in the Senate. 

Tuesday, July 25, 1854. 

Mr. Mallory-submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

“ Whereas the Hon. Jared W. Williams was appointed by his excellency the governor 
of New Hampshire, in the recess of the legislature of that State, to fill a vacancy in the 
Senate of the United States which had happened by the death of the Hon. Charles G. 
Atherton, a Senator, whose term of service would have continued until the 4th of March, 
1859; and 

“ Whereas it is understood that since that temporary appointment was made the 
legislature of New Hampshire has been convened at their regular session and has ad¬ 
journed to the last Wednesday of May next without filling such vacancy, and that said 
State still claims a right of representation under said appointment, which the appointee 
is not at liberty to surrender by his act without the action of the Senate: At his re¬ 
quest, therefore, 

“ Eesolved , That the subject be referred to the Committee on the Judiciary to inquire 
into the facts connected with it and to make such report as they deem proper to enable 
the Senate to determine whether the right of representation under said appointment has 
expired.’ ’ 

Wednesday, August 2, 1854. 

Mr. Butler, from the Committee on the Judiciary, who were directed by a resolution of 
the Senate to inquire into and report on the right of the Hon. Jared W. Williams, 
appointed a Senator by the governor of New Hampshire, to continue to hold his seat 
under that appointment, submitted a report (No. 385) thereon; which was ordered to 
be printed. 

REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Butler (chairman), Toucey, Bayard, Geyer, Pet¬ 
tit, and Toombs.] 

In the Senate of the United States. 

August 2, 1854.—Ordered to be printed. 

Mr. Butler made the following report: 

The Committee on the Judiciary, to whom was referred the following preamble and 
resolution of the Senate, have had the same under consideration, and report: 

“ Whereas the Hon. Jared W. Williams was appointed by his excellency the governor 


24 


SENATE ELECTION CASES. 


of New Hampshire, in the recess of the legislature of that State, to lill a vacancy in the 
Senate of the United States which had happened by the death of the Hon. Charles G. Ath¬ 
erton, a Senator s whose term of service would have continued till the 4th of March, 
1859; and 

“Whereas it is understood that since that temporary appointment was made the leg¬ 
islature of New Hampshire has been convened at their regular session, and has adjourned 
to the last Wednesday of May next, without filling such vacancy, and that said State still 
claims a right of representation under said appointment, which the appointee is not at 
liberty to surrender by bis act without the action of the Senate: At his request, there¬ 
fore, 

“ Resolved , That the subject be referred to the Committee on the Judiciary, to inquire 
into the facts connected with it, and to make such report as they deem proper to enable 
the Senate to determine whether the right of representation under said appointment 
has expired.” 

Under this resolution the committee are required to inquire into the facts connected 
with the case, and to make such report as they deem proper, to enable the Senate to 
determine whether the right of representation under said appointment had expired. 

As the question to be determined must depend in a great measure on the proceedings 
of the legislature and constitution of New Hampshire, the committee submit the follow¬ 
ing as a part of their report, having a bearing on the case: 

COMMUNICATION FROM THE GOVERNOR TO THE LEGISLATURE. 

To the senate and house of representatives: 

I have signed all the bills and resolutions which you have passed the present session 
and presented for my approval (except the bills and resolutions which I have returned 
to the house of representatives with my objection thereto), and having been informed 
by a joint committee of both branches of the legislature that you have finished the busi¬ 
ness before you and are ready to adjourn, by the authority vested in me I do hereby ad¬ 
journ the legislature to the last Wednesday of May next. 

N. B. BAKER. 

Council Chamber, July 15, 1854. 

“The senate and house shall assemble every year on the first Wednesday of June, and 
at such other times as they may judge necessary; and shall dissolve and be dissolved 
seven days next preceding the said first Wednesday of June, and shall be styled the gen¬ 
eral court of New Hampshire .”—Constitution of New Hampshire, page 23. 

From the language of the governor’s communication to the legislature it seems to have 
been his judgment that the session had closed; and from the language of the constitution 
it would appear that it will have terminated on the day mentioned, as by another pro¬ 
vision of the constitution the governor on the same day is required to dissolve the legis¬ 
lature. In this view of the subject in proprio vigor e, the legislature had no power of as¬ 
sembling from the time of its adjournment, as announced by the governor, until the last 
Wednesday of May next, when its existence terminated. 

There was a power in the governor, should the general welfare require it, to call the 
legislature together as an existing body. But when so called together what would have 
been the character of such a meeting? Would it not have been a distinct session, car¬ 
rying with its acts and doings all the incidents of a separate session ? Such would seem 
to be a fair inference. This being conceded, then it would follow that the late legisla¬ 
ture did adjourn sine die in the legal import of the term. If this is a legitimate conclu¬ 
sion this case cannot in any particular be distinguished from that decided by the Senate 
in the case of the Hon. Samuel S. Phelps, a Senator from Vermont, and the committee 
refer to that case as the authority for their conclusion in the case under consideration. 

In response to the resolution the committee are of opinion that “theright of repre¬ 
sentation under the appointment ’ ’ has expired. 


Thursday, August 3, 1854. 

The Senate proceeded to consider the report of the Committee on the Judiciary on the 
right of the Hon. Jared W. Williams, appointed a Senator by the governor of the State 
of New Hampshire, to continue to hold his seat in the Senate under that appointment* 
and, 

After debate, in concurrence therewith, 

Resolved , That “the right of representation under appointment” had expired. 

[No debate of any importance is recorded in the Congressional Globe.] 


JARED W. WILLIAMS. 


25 


Friday, August 4, 1854. 

On motion by Mr. Dodge, of Iowa, to reconsider the vote agreeing to the report of 
the Committee on the Judiciary on the right of the Hon. Jared W. Williams to hold his 
seat in the Senate, under his present appointment, as a Senator from New Hampshire, 
it was determined in the affirmative—yeas 19, nays 16. 

On motion by Mr. Dodge, of Iowa, the yeas and nays being desired by one-fifth of 
the Senators present, 

Those who voted in the affirmative are Messrs. Atchison, Bayard, Bell, Brodhead, 
Butler, Chase, Dawson, Dodge of Wisconsin, Dodge of Iowa, Douglas, Evans, Fitzpat¬ 
rick, Houston, Johnson, Jones of Iowa, Mallory, Mason, Norris, and Weller. 

Those who voted in the negative are Messrs. Allen, Benjamin, Bright, Cooper, Fish, 
Gillette, Hunter, James, Jones of Tennessee, Pratt, Rockwell, Seward, Stuart, Thomp¬ 
son of Kentucky, Toombs, and Wade. 

So the Senate proceeded to consider the said report. 

On motion by Mr. Cass that the further consideration of the report be postponed until 
the first Monday in December next, it was determined in the negative—yeas 11, nays 37. 

On motion by Mr. Atchison, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Atchison, Dodge of Wisconsin, Dodge 
of Iowa, Douglas, Houston, Johnson, Jones of Iowa, Mallory, Pettit, Sebastian, and 
Toombs. 

Those who voted in the negative are Messrs. Allen, Bayard, Benjamin, Bright, Brod¬ 
head, Brown, Butler, Cass, Chase, Clay, Cooper, Dawson, Evans, Fessenden, Fish, Foot, 
Geyer, Gillette, Hunter, James, Jones of Tennessee, Mason, Morton, Pearce, Pratt, 
Rockwell, Rusk, Seward, Slidell, Stuart, Sumner, Thompson of Kentucky, Thomson 
of New Jersey, Toucey, Wade, Walker, and Weller. 

After debate, in concurrence with the report, it was 

Resolved, That “the right of representation under the appointment ” had expired. 

[ It appears from the debate referred to in the head-note that the vote was reconsidered 
in order to allow Mr. Williams, who had been absent when the subject was first con¬ 
sidered, to a idress the Senate.] 


26 


SENATE ELECTION CASES. 


[Forty-sixth Congress—First session.] 

CHARLES H. BELL, 

Senato) from New Hampshire from April 10, 1879, till June 20, 1879. 


March 18,1879, the credentials of Mr. Bell, appointed by the governor to fill a vacancy happening 
during the recess of the legislature, by the expiration of the term of Bainbridge Wadleigh, March 
3, were presented. March 19, the credentials were referred to the Committee on Privileges and 
Elections. April 2,1879, the committee reported that by reason of a change in the State constitu¬ 
tion in 1878, two legislatures were chosen in that year, one, under the old constitution, in March, 
whose term of office began in June, 1878, and would terminate in May, 1879, and the other, under 
the new constitution, chosen in November to serve for two years, whose term would begin in June, 
1879; that in the Forty-fifth Congress this committee had reported to the Senate that the last-named 
legislature was the one entitled to elect under the act of July 25, 1866; that the vacancy arising 
under these circumstances was not a vacancy “ happening by resignation or otherwise during the 
recess of the legislature of any State” (Article I, section 3, of the Constitution); that until the year 
1817 persons appointed to fill vacancies arising from the expiration of terms of service had been 
admitted to seats; but that in 1825, in the Lanman case (see page 5), “ it was held, and, in the opin¬ 
ion of this committee, correctly, that the Constitution conferred upon the legislature, and upon it 
alone, the power to appoint a Senator for the beginning of a new term” ; that this decision had 
been regarded by the Senate as final; that the case of Mr. Sevier (see page 7), in which it was 
claimed that the Senate had departed from the rule in Lanman’s case, was in ail material points dif¬ 
ferent from the one under consideration, in that “ the time when Mr. Sevier was to go out of office 
under his election was decided by lot.” The committee recommended the adoption of a resolution 
that Mr. Bell was not entitled to the seat. A minority report held that there was no historical evi¬ 
dence to show whether the Lanman case decided that a governor could not fill a vacancy happen¬ 
ing at the beginning of a term, or only that a governor could not lawfully make an appointment 
in anticipation before the vacancy had occurred ; that-the report in the Sevier case stated that the 
Lanman case proceeded upon the former ground; but that, with the exception of that statement, 
there is no indication that the Senate ever doubted the correctness of the construction of the Con¬ 
stitution that in a case where a Senator has been appointed by the executive after the happening 
of a vacancy by the expiration of the term without an election of a successor by the legislature, 
the person so appointed is entitled to the seat. April 10, the resolution reported by the committee 
was amended by striking out the word “ not,” and the Senate resolved that Mr. Bell was entitled 
to the seat. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Senate Journal, 46th Cong., 1st sess., and the report of the committee from Senate 
Reports, 46th Cong., 1st sess., No. 1. 

Special references to the debates of each day, which are found in the Congressional Record, vol. 
ix, part 1, are inserted below. 


Tuesday, March 18, 1879. 

The Vice-President laid before the Senate the credentials of Charles H. Bell, appointed 
a Senator by the governor of the State of New Hampshire to fill the vacancy happening 
in the Senate of the United States by the expiration of the term of Bainbridge Wadleigh 
on March 3, 1879, during the recess of the legislature of said State; which were read. 

On motion by Mr. Wallace, 

Ordered , That the credentials lie on the table. 

[The debate is found on pages 2, 3 of the Congressional Record referred to in the 
head-note. In the remarks of Mr. Bell will be found a list of precedents. ] 

Wednesday, March 19, 1879. 

On motion by Mr. Wallace, 

Ordered , That the credentials of Charles H. Bell be referred to the Committee on Priv¬ 
ileges and Elections with instructions to report at as early a day as practicable. 


Wednesday, April 2, 1879. 

Mr. Saulsbury, from the Committee on Privileges and Elections, to whom were referred 
the credentials of Charles H. Bell, appointed a Senator by the governor of the State of 
New Hampshire, submitted a report (No. 1) thereon accompanied by the following res¬ 
olution: 

Resolved , That Hon. Charles H. Bell is not entitled to a seat as a Senator by virtue 
of the appointment by the executive of New Hampshire.” 

Mr. Hoar obtained leave to submit the views of a minority of the Committee on Priv¬ 
ileges and Elections upon the credentials of Charles H. Bell; which were ordered to be 
printed to accompany the foregoing report. 


CHARLES H. BELL. 


27 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Saulsbury (chairman), Hill of Georgia, Kernan, 
Bailey, Houston, Yance, Cameron of Wisconsin, Hoar, and Ingalls.] 

In the Senate of the United States. 

April 2, 1879.—Ordered to lie on the table and be printed. 

Mr. Saulsbury, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

The Committee on Privileges and Elections, to whom were referred the credentials of 
the Hon. Charles H. Bell, claiming a seat in the Senate as a Senator from the State of 
New Hampshire, have had the same under consideration, and ask leave to make the fol¬ 
lowing report: 

The term of Bainbridge Wadleigh, a Senator from the State of New Hampshire, ex¬ 
pired by constitutional limitation on the 3d day of March, 1879, in a recess of the legis¬ 
lature, and on the 13th day of March, 1879, Mr. Bell was appointed in his place by the 
executive. 

By reason of a change in the constitution of that State, which took effect in October, 
1878, two legislatures were chosen in that year, one, under the old constitution, in March, 
whose term of office commenced in June, 1878, and will terminate in May, 1879; the 
other, under the new constitution, was chosen in November to serve for two years, the 
term commencing in June, 1879. 

The Committee on Privileges and Elections of the Senate in the Forty-fifth Congress, 
to whom was referred the question which of these two bodies had the right to choose a 
successor to Mr. Wadleigh, was of opinion, and so reported to the Senate, that under the 
act of 1866 (Revised Statues, section 14) the last-named legislature was entitled to elect, 
because it was the legislature chosen next preceding the expiration of Mr. Wadleigh’s 
term of service. In the opinion of the committee this report, and the action of the Sen¬ 
ate in adopting it, are not important in the settlement of the question now presented. 

The Constitution of the United States, Article I, section 3, provides as follows: 

“The Senate of the United States shall be composed of two Senators from each State, 
chosen by the legislature thereof, for six years, and each Senator shall have one vote. 

“ Immediately after they shall be assembled in consequence of the first election, they 
shall be divided as equally as may be into three classes. The seats of the Senators of 
the first class shall be vacated at the expiration of the second year, of the second class 
at the expiration of the fourth year, and of the third class at the expiration of the sixth 
year, so that one-third may be chosen every second year; and if vacancies happen by 
resignation, or otherwise, during the recess of the legislature of any State, the exec¬ 
utive thereof may make temporary appointments until the next meeting of the legisla¬ 
ture, which shall then fill such vacancies.” 

It has been noticed that this claimant bases his right to a seat in the Senate, not upon 
the fact that a term filled by the legislature of New Hampshire had become vacant during 
a recess of the legislature, but upon the fact that the executive claims the right to make 
a temporary appointment at the beginning of a term which the legislature has not under¬ 
taken to fill. 

The committee cannot find in the Constitution any sufficient warrant for this claim. 
If we look at the provision authorizing the governor to make temporary appointments 
independently of its connection with the rest of the section, we think it is manifest that 
the authority is limited to filling vacancies which happen in a term which had been pre¬ 
viously filled by the legislature. If it was intended to vest in the executive the power 
to make temporary appointments to terms for which no person had been chosen by the 
legislature, why should the words “happen by resignation or otherwise” have been 
added to the word ‘ ‘ vacancies ’ ’ ? They certainly did not render it more comprehensive, 
and must have been designed to limit and restrict its meaning to vacancies occurring 
from accident or some unforeseen event. If any doubt, however, existed as to the mean¬ 
ing of the language referred to, when considered unconnected with the rest of the section, 
such doubts would be removed by construing the provisions of the section together. Ap¬ 
plying to them the rules recognized for the construction of statutes and constitutional 
provisions, the committee are forced to the conclusion that the legislature alone is em¬ 
powered to choose a Senator upon the expiration of a Senatorial term, and that the exec¬ 
utive can only make temporary appointments to fill vacancies occurring in a term which 
has been previously filled. It is well known that in the convention which framed the 
Constitution this subject received careful consideration. After it had been determined 
that the States should have equal representation in the Senate, the manner of choosing 
Senators was considered; various propositions were submitted, and, among others, ap¬ 
pointments by the executiyes of the States. Finally it was determined to vest in the 


28 


SENATE ELECTION CASES. 


legislature the power of choosing Senators, and in the executive the power to make tem¬ 
porary appointments, if vacancies should happen in the office after it had been filled, 
until such time as the legislature could again act. This, it seems to the committee, was 
the obvious intent of the Constitution, gathered not only from the language of the entire 
section under consideration, but also from the debates in the convention in reference to 
its provisions. 

Nothing in the history of the Senate for the last fifty years is at variance with the 
views here presented. 

The records of the Senate show that down to the year 1817 a number of appointments 
were made by State executives of persons to succeed Senators whose terms of service had 
expired, and that the persons so appointed were admitted to seats in the Senate. 

The first case was that of William Cocke, of the State of Tennessee. 

This State was admitted into the Union in 1796. In the month of August of that 
year, William Cocke and William Blount were chosen Senators in Congress by the legis¬ 
lature. By lot they were assigned to the first and second classes of the three classes 
directed to be formed by the article of the Constitution above quoted, and Mr. Cocke 
having drawn the term which expired on the 3d day of March, 1797, during a recess of 
the legislature, was appointed by the governor to be his own successor on the 22d of 
April, 1797, and he was admitted to a seat without objection. 

The second case was that of Uriah Tracy, a Senator from the State of Connecticut, 
whose term expired on the 3d of March, 1801. Under an appointment by the governor 
he was admitted to a seat on the 4th day of March, 1801, after a heated discussion, and 
by a party vote of 13 to 10. 

This precedent was followed on the next day by the admission of Mr. Hindman, of 
Maryland; by the admission of Mr. Condit, of New Jersey, in 1803; Mr. Anderson, of 
Tennessee, and Mr. Smith, of Maryland, in 1809; Mr. Cutts, of New Hampshire, in 
1813; and Mr. Williams, of Tennessee, in 1817; all executive appointments to fill places 
made vacant by the expiration of full terms of service during recesses of legislatures, and 
all were admitted without discussion aud without objection. 

But in 1825 the term of James Lanman, of Connecticut, expired during a recess of the 
legislature. In anticipation of the vacancy he had been appointed by the governor as his 
own successor. His credentials were presented on the 4 th day of March, 1825, and after a 
protracted debate the Senate refused to admit him to a seat. No record of this debate 
has been preserved, and the committee have not the advantage of the reasoning by which 
the Senate was guided in its action. Enough, however, remains to show that the Senate 
decided that a vacancy authorizing an appointment by the executive had not ‘ ‘ happened ’ ’ 
within the meaning of the Constitution. It was held, and, in the opinion of this com¬ 
mittee, correctly, that the Constitution conferred upon the legislature, and upon it alone, 
the power to appoint a Senator for the beginning of a new term; and it seems to the com¬ 
mittee that this decision is clearly in accord with the spirit and meaning of the article 
of the Constitution already quoted. 

This section confers upon the legislature the right, and imposes upon it the duty, of 
choosing Senators who are to serve for six years. 

In every one of the States a legislature must be in session at some time preceding the 
expiration of a Senatorial term. We know as a fact that at the time of the adoption of 
the Constitution these sessions were mostly annual, and, as now, those not annual were 
biennial. After the first assignment of Senators to classes, the term of office was fixed, 
and, under the Constitution, would expire at a time certain. When, therefore, the first 
clause of the third section, first article of the Constitution directed that Senators should 
be chosen by the legislatures, it appears most manifestly to have been the purpose of its 
framers to give exclusive power to the legislature to make the choice, unless, as provided 
by the last clause, vacancies should “happen” by resignation, or otherwise, during a 
recess of the legislature, when the executive should make temporary appointments until 
the next session of the legislature. 

The power to make temporary appointments was conferred upon the executive because 
the accidents of death, resignation, expulsion, or acceptance of another office could not 
be foreseen or provided for by the legislature. In the one class of cases the time when 
a term would expire was fixed by law and was well known. There could be no doubt or 
uncertainty in regard to it, and in such case a vacancy could occur only by the willful 
disregard by the State in framing its organic law, or by the legislature, of constitutional 
obligations. In such case a vacancy could not “happen,” or occur by chance, casualty, 
or other event that could not be guarded against. 

The decision in Lanman’s case has been for more than fifty years regarded as a correct 
exposition of the Constitution. During this long lapse of years its authority has not been 
questioned, and it has guided the action of legislatures aud of executives of States. 

Many cases have occurred when, under like circumstances, for months, and in some 
instances for one or two years, and even a longer time, States have been represented upon 


CHARLES H. BELL. 


29 


the floor of the Senate by a single Senator, and for the reason that the decision in Lan- 
man’s case was regarded as final and conclusive of the question. The following are 
cases of this character: 

Cases of unfilled seats or vacancies at beginning of Senatorial terms by reason of non-election. 

Maine. —Vacancy from March 4, 1853, till February 23,1854, when William Pitt Fes¬ 
senden took the seat under an election. 

Connecticut. —Vacancy from March 4, 1851, to May 12, 1852, when Isaac Toucey pre¬ 
sented credentials of election by legislature. 

Pennsylvania. —Vacancy from March 4,1855, to January 18, 1856, when William Big¬ 
ler was seated on an election by the legislature. 

Maryland. —Vacancy from March 4, 1843, to January 2, 1844, when James Alfred 
Pearce, elected by the legislature, took the seat. 

North Carolina. —Vacancy from March 4, 1853, to December 6, 1854, when DavidS. 
Reid’s certificate of election was presented. 

Indiana. —Vacancy from March 4, 1855, to February 4, 1857, when Graham N. Fitch 
was admitted on credentials of legislative election, which was contested, and the contest 
not decided till late in the spring of 1858. 

Missouri. —Vacancy from March 4,1855, to January 12,1857, when James S. Green was 
admitted on a legislative election. 

California. —Vacancy from March 4, 1855, to February 15, 1857, when William M. 
Gwin presented himself under an election by the legislature. 

Oregon. —Vacancy from March 3,1859, until December 5, 1860, when Edward D. Baker 
took the seat under a legislative election. 

It is said, however, that the Senate departed from the rule in Lanman’s case in the 
case of Mr Sevier, appointed as his own successor by the governor of Arkansas in the 
year 1837. 

The report in this case, made by a committee of the Senate, shows that the State of 
Arkansas was admitted into the Union in the year 1836, and in September of that year 
elected two Senators, Mr. Sevier and Mr. Fulton. Under the constitutional rule Mr. 
Fulton was allotted to the second class of Senators and Mr. Sevier to the third, and his 
term of service expired on the 3d day of March, 1837, during a recess of the legislature. 

A committee of the Senate, to whom the credentials of Mr. Sevier were referred, after 
quoting the decision in Lanman’s case, say: 

‘ ‘ The decision seems to have been generally acquiesced in, nor is it intended by the 
committee to call its correctness in question. The principle asserted in that case is that 
the legislature of a State, by making an election themselves, shall provide for all vacan¬ 
cies that must occur at stated or known periods, and that the expiration of a regular term 
of service is not such a contingency as is embraced in the second section of the first arti¬ 
cle of the Constitution. ’ ’ 

And the committee concludes by saying: 

“ The case under consideration is wholly different in principle. The time when Mr. 
Sevier was to go out of office under his election * * * was decided by lot under the 
provisions of the Constitution on that subject, * * * and therefore they recommend 

that Mr. Sevier be admitted.” 

The case in its facts was identical with that of Mr. Cocke, of Tennessee, settled in 1797, 
but in all material points differs from the one now under consideration. 

The committee, from every view of the case, are forced to the conclusion that the va¬ 
cancy occasioned by the expiration of the term of Senator Wadleigh cannot be filled by 
executive appointment, and therefore report the following resolution, and recommend 
its passage: 

Resolved , That the Hon. Charles H. Bell is not entitled to a seat as a Senator by virtue 
of the appointment by the executive of New Hampshire. 

E. SAULSBURY. 

BENJ. H. HILL. 

J. E. BAILEY. 

F. KERNAN. 

GEO. S. HOUSTON. 

Z. B. VANCE. 


VIEWS OF THE MINORITY. 

1 . 

The undersigned members of the Committee on Privileges and Elections, to whom 
were referred the credentials of Hon. Charles H. Bell, claiming to be admitted as a Sen* 


30 SENATE ELECTION CASES. 

ator from the State of New Hampshire, dissent from the conclusions of a majority of 
the committee. 

The Constitution, Article I, section 3, provides as follows: 

1 A. 

“The Senate of the United States shall be composed of two Senators from each State, 
chosen by the legislature thereof, for six years; and each Senator shall have one vote. 

“Immediately after they shall be assembled in consequence of the first election, they 
shall be divided as equally as may be into three classes. The seats of the Senators of 
the first class shalL.be vacated at the expiration of the second year, of the second class at 
the expiration of the fourth year, and of the third class at the expiration of the sixth 
year, so that one-third may be chosen every second year; and if vacancies happen by 
resignation or otherwise during the recess of the legislature of any State the executive 
thereof may make temporary appointments until the next meeting of the legislature, 
which shall then fill such vacancies. ’ ’ 

The term of office of the Hon. Bainbridge Wadleigh, a Senator from the State of New 
Hampshire, expired on the 3d day of March, 1879. 

By the statute of the United States, approved July 25, 1866, re-enacted Revised Stat 
utes, 814, it is provided: 

“The legislature of each State, which is chosen next preceding the expiration of the 
time for which any Senator was elected to represent such State in Congress, shall, on 
the second Tuesday after the meeting and organization thereof, proceed to elect a Senator 
in Congress.” 

Under the new constitution of New Hampshire a legislature was chosen in November, 
1878, for a term to begin in June, 1879. That legislature cannot elect a Senator until 
June, 1879, because by the constitution of the State its legislative powers will not vest 
until then. Its predecessor could not elect a Senator at its last session, and cannot now, 
if called together in special session, because it was not the legislature last chosen before 
the expiration of Mr. Wadleigh’s term. 

The governor of New Hampshire, on the 13th of March, 1879, made temporary ap¬ 
pointment of the Hon. Charles H. Bell until the next meeting of the legislature. Mr. 
Bell now presents himself to claim the seat. The only question is, has a vacancy hap¬ 
pened by ‘ ‘ resignation or otherwise, ’ ’ so that the executive was authorized to make this 
appointment? 

We are aided in determining this question by considering the leading purpose of the 
constitutional provision, the natural meaning of the words, and the uniform construc¬ 
tion given to similar language used elsewhere in the Constitution and the previous 
judgments of the Senate in like cases. 

The purpose of the Constitution is to have the Senate always full. This is the inter¬ 
est not merely of the State whose right to elect is in question, but of the whole country, 
for whom the Senator is to legislate, whose servant he is, and to whom his service is 
due. To this end the Constitution provides that ‘ 1 the Senate shall be composed of two 
Senators from each State,” and authorizes Congress to make regulations as to the time 
and manner of electing them. Congress has exercised this authority in the statutes 
cited, so that no failure of duty of either branch of the legislature may interrupt the 
State’s representation in the Senate. To meet the case of a vacancy happening in the 
recess of the State legislature the Constitution clothes the executive with the power of 
temporary appointment. The purpose to keep the representation of the State always 
full requires the construction which authorizes such appointment when the vacancy 
happens at the beginning of the term as much as if it happen at any other time. The 
authority given to the governor is to appoint “until the next meeting of the legislature,” 
which literally construed would require the Senator so appointed to vacate his seat on 
the day the legislature meet. Yet the Senate, in furtherance of the controlling pur¬ 
pose of the Constitution that the place shall be always full, has uniformly held that 
the Senator so appointed retains his seat until the legislature choose his successor or 
adjourn without making a choice. 

The authority to appoint is vested in the executive “ if a vacancy happen. ’ ’ There is 
no distinction indicated between vacancies which happen when the term begins and 
vacancies which happen later. There can be no reason suggested for such a distinction. 
It is said that the term “vacancy” is not properly applied to offices whose term has 
expired by limitation at a fixed time but only to terms which have once been filled. 

But the Constitution expressly declares ‘ ; the seats of the Senators shall be vacated at 
the expiration of the sixth year, ’ ’ &c. Did the Constitution mean to declare that to vacate 
a seat does not create a vacancy in it? 

But it is said a vacancy which occurs at a certain time fixed by law is not a vacancy 
which ‘ ‘ happens ’ ’; that the Constitution meant only to vest the appointing power in the 


CH4RLES H. BELL. 


31 


executive in case of the vacancy occurring by reason of events which cannot he certainly 
foreseen; and this is the strong point of those who differ with us. On the contrary, we 
affirm that nothing is better settled in the construction of the Constitution and of legis¬ 
lation under it than that the words “vacancies happening” include the case of offices 
which have a fixed term which has expired, and which are vacant because no new ap¬ 
pointment has been made. Article 2, section 2, of the Constitution, in its provision 
for the appointment of officers, declares: 

The President shall have power to fill up all vacancies that may happen during the 
recess of the Senate by granting commissions which shall expire at the end of their next 
session.” 

Under this provision the President exercises the undisputed power of filling offices 
which have a term fixed by law which expires in the recess of Congress. Most impor¬ 
tant rights of the people and of private citizens depend on the legality of such appoint¬ 
ments which the construction contended for by the majority of the committee must 
overturn. In Revised Statutes, section 1769, “the President is authorized to fill all 
vacancies which may happen during the recess of the Senate by reason of death, or res¬ 
ignation, or expiration of term of office.” 

It is not the ending of the term, but the absence from the office of any person author¬ 
ized to fill it, to which the word “happen,” which expresses contingency, is applied. 
It is certain that the term will end. It is still uncertain whether the office will be va¬ 
cant, because that depends on the contingent event of the legislature’s having filled it. 
It is in accordance with the custom of our language to apply the word “happen” to the 
simultaneous occurrence of two events, both of which are certain to take place. ‘ ‘ If 
the fourth of July happen on Sunday, the next day shall be a legal holiday.” “If the 
last day of grace happen to be a holiday, the note shall be payable on the day preced¬ 
ing.” A fortiori the word may be appropriately used to express the occurrence at the 
same time of two events, one of which is contingent. If there happen to be no Senator 
in the office, the authority of the executive exists. 

The question has frequently arisen for judgment in the Senate. By a line of decis¬ 
ions unbroken, with one possible exception, it has been held that the governor of a State 
is authorized to fill a vacancy existing at the beginning of a Senatorial term. 

April 27, 1797, William Cocke was appointed a Senator from the State of Tennessee 
by the governor, his term having expired on the third of the preceding month. On the 
loth of May, 1797, he presented his credentials, and was admitted to take the oath of 
office without objection or debate. 

March 3, 1801, the seat of Uriah Tracy, of Connecticut, became vacant by the expira¬ 
tion of his term of office. On the 20th of February, 1801, the governor of Connecticut 
reappointed him a Senator. Objection being raised to his credentials, he was admitted 
to the oath by a vote of yeas 13, nays 10. 

William Hindman, of Maryland, was afterward, on the next day, admitted to the oath 
on like credentials, without objection. 

John Condit, of New Jersey, November 14, 1803, appointed a Senator from New Jersey 
to fill the vacancy at the beginning of the term, was admitted to take the oath. Mr. 
Condit’s credentials had been presented October 17, previous. 

March 4, 1809, Samuel Smith, of Maryland, appointed on that day by the governor of 
his State to fill the vacancy caused by the expiration of his own term, was admitted to 
his seat and sworn. 

March 4, 1809, Joseph Anderson, of Tennessee, took his seat by virtue of an appoint¬ 
ment from the governor of that State. 

May 24, 1813, Charles Cutts, of New Hampshire, appointed by the executive to fill 
the vacancy during the recess of the legislature, was, without question, admitted to take 
the oath. This vacancy was at the beginning of the term. 

March 4, 1817, John Williams, of Tennessee, appointed a Senator by the executive of 
the State, to hold said appointment until the meeting of the next session of the legisla¬ 
ture, was admitted. His credentials were filed on the 10th of the preceding February. 

March 4, 1825, James Lanman, of Connecticut, presented his credentials of his ap¬ 
pointment by the governor of that State, “to take effect immediately after the 3d of 
March, 1825, and to hold the seat until the next meeting of the legislature.” Mr. Lan¬ 
man was refused the seat by a vote of 23 to 13. The case was referred to a select com¬ 
mittee, who report the facts, but state neither reason nor conclusion. The committee 
say they have looked into the journals of the Senate, and that the cases of Cocke, Tracy, 
Anderson, and Williams are the only analogous cases they could find. There is a brief 
sketch of the debate in Niles’ Register, vol. 28, page 32, but no statement of the reason on 
which any Senator proceeded. There is no historical evidence from which we can deter¬ 
mine whether the Senate rejected Mr. Lanman on the ground that the governor could 
not fill a vacancy happening at the beginning of the term, or on the ground that the 
governor could not lawfully make the appointment in anticipation, before the vacancv 


32 


SENATE ELECTION CASES. 


occurred, and before he could possibly know whether the legislature might be called 
together before that time. All the precedents which the committee cite, except that of 
Mr. Cocke, were cases where the appointment was made not whtii the vacancy happened 
in the recess of the legislature, but only when the governor thought it might happen. 
In the case of Cocke the date of the appointment is not given in the journals, although 
in fact it was after the vacancy. The committee do not cite the case of Hindman, Smith, 
or Condit, nor the then recent case of Cutts, in deciding which some Senators then in 
office took part, where the appointments were made after the vacancy existed. There 
is, therefore, nothing to show whether the Senate meant to overrule all the precedents, 
some of which were not brought to its attention, or only so many of them as recognized 
the right of the executive to appoint when a vacancy had not happened. 

Judge Story (Constitution, § 727, note 2) says: 

“In the case of Mr. Lanman, a Senator from Connecticut, a question occurred whether 
the State executive could make an appointment in the recess of the State legislature in 
anticipation of the expiration of the term of office of an existing Senator. It was decided 
by the Senate that he could not make such an appointment. The facts were that Mr. 
Lanman’s term of service as Senator expired on the 3d of March, 1825. The President had 
convoked the Senate to meet on the 4th of March. The governor of Connecticut, in the 
recess of the legislature (whose session would be in May), on the 9th of the preceding 
February appointed Mr. Lanman as Senator, to sit in the Senate after the 3d of March. 
The Senate, by a vote of 23 to 18, decided that the appointment could not be constitu¬ 
tionally made until after the vacancy had actually occurred.” (See Gordon’s Digest of 
the Laws of the United States, 1827; appendix, note 1, B.) 

In regard to the same case, the National Intelligencer of March 8, 1825, says in an 
editorial note: 

“An important constitutional question was yesterday decided in the Senate by the 
refusal to admit Mr. Lanman to a seat in the Senate under a commission from the gov¬ 
ernor granted before the expiration of Mr. Lanman’s late term of service. This is the 
first time the question has been adjudicated under such circumstances as to form a prece¬ 
dent; and we presume it may now be considered as a settled construction of the con¬ 
stitutional provision that a vacancy must have literally ‘happened’ or come to pass 
before an appointment can be made to fill it.” ■ 

The State of Arkansas was admitted to the Union in 1836. In October, 1836, the leg¬ 
islature of that State elected Ambrose H. Sevier and William S. Fulton Senators. On 
the allotment of the Arkansas Senators to their respective classes, as required by the 
third section of the first article of the Constitution, Mr. Sevier was placed in the class of 
Senators whose term of service expired on the 3d of March, 1837. The legislature of 
Arkansas had no opportunity to fill the vacancy, and were not in session after the result 
of the allotment was known in that State. January 17, 1837, the governor of Arkansas 
appointed Mr. Sevier to fill the vacancy which would take place on the 3d of March. 
When Mr. Sevier’s credentials were presented at the winter session, Mr. Webster sug¬ 
gested a doubt of the validity of the appointment, in which Mr. Sevier himself con¬ 
curred. At the March session the credentials were referred to the Committee on the 
Judiciary. Mr. Grundy, from that committee, reported in favor of Mr. Sevier’s admis¬ 
sion, and he was admitted. 

Mr. Grundy’s report states that it is not intended by the committee to call in question 
the correctness of the decision in the Lanman case; that that case proceeded on the ground 
“ that the legislature should provide for all vacancies which must occur at stated and 
known periods, and that the expiration of a regular term of service is not such a contin¬ 
gency as is embraced in the second section of the first article of the Constitution.” 

The report further says: 

“The case now under consideration is wholly different in principle. The time when 
Mr. Sevier was to go out of office was decided by lot. ’ ’ 

From this review of the judgments of the Senate, it appears that in every case in which 
a Senator has been appointed by the executive after the happening of a vacancy by the 
expiration of a term without an election of a successor by the legislature, the person 
so appointed has been admitted to his seat. There is no indication that the Senate ever 
denied or doubted the correctness of this construction of the Constitution, except the un¬ 
supported statement of Mr. Grundy of the ground of a decision made twelve years before— 
a statement which nothing in the journal of the debates confirms, and which is opposed 
to the understanding of Judge Story and the contemporaneous article in the Intelligencer. 

The second section of the first article of the Constitution provides: “When vacancies 
happen in the representation from any State, the executive authority thereof shall issue 
writs of election to fill such vacancies. ’ ’ In 1837, the law of Mississippi fixed the time for 
the election of Representatives in November. The President having called a special ses¬ 
sion of Congress to meet in September, the governor of Mississippi, on the 13th of June 
issued writs for an election in July for two Representatives to Congress to fill said vacancy, 
until superseded by the members to be elected at the next regular election in November! 


CHARLES H. BELL. 


33 


At this Jilly election Messrs. Gohlson and Claiborne were elected and claimed the seats. 
Their claim was referred to a committee, of which Andrew Buchanan was chairman, who 
reported in favor of their right to seats for the full term. They say in their report: 

The Constitution authorizes the executive power of the States respectively to order 
the filling of all vacancies which have actually happened, in the mode therein pointed 
out, no matter how the vacancy may have happened, whether by death, resignation, or 
expiration ot the term of members previous to the election of their successors.” 

In the debate, John Quincy Adams said he believed, in relation to offices, that every 
one happens to be vacant which is not full; and that, he believed, was the meaning and 
sense ot the Constitution, whether the vacancy occurred from casualty, the regular course 
of events, expiration of term, or other cause. 

The claimants were admitted to their seats. In November following, Messrs. Prentiss 
and Wood were elected for the same term. At the next December session, the resolu¬ 
tion declaring Gholson and Claiborne elected was rescinded, hut a resolution was also 
adopted, by the casting vote of Speaker James K. Polk, that Prentiss and Wood were 
not members. So that no inference can properly he drawn from that case; and it is of no 
value, except so far as weight may be attached to the opinions of John Quincy Adams 
and James K. Polk, both favoring the construction of the Constitution for which we con¬ 
tend. 

Appended to the report in the Mississippi case are opinions Qf two of the most distin¬ 
guished Attorneys-General of the United States, Roger B. Taney and William Wirt, in 
which they discuss the meaning of the phrase ‘ ‘ vacancies that may happen during the 
recess” with reference to the power of the President to fill an office which is vacant in 
the recess, because the Senate adjourned without acting on a nomination, the original 
vacancy having happened during the session. Both these eminent jurists agree that the 
term ‘ ‘ happen ’ ’ is equivalent to ‘ ‘ happen to exist, ” “if it come to pass that there be 
a vacancy.” Mr. Taney says: 

‘ ‘ The Constitution was formed for practical purposes, and a construction that defeats 
the very object of the grant of power cannot he a true one. It was the intention of the 
Constitution that the offices created by law should always he full.” 

We submit, therefore, that the natural and ordinary meaning of the language employed, 
the purpose which the framers of the Constitution meant to accomplish, the unbroken 
current of decisions in like cases, and the uniform construction given to the same lan¬ 
guage when used elsewhere in the Constitution and in legislation in like cases, concur in 
supporting the interpretation which establishes Mr. Bell’s claim. The office of Senator 
is a continuous office. When the Senator is duly elected by the legislature beforehand 
no vacancy exists within the meaning of the Constitution. His taking the oath of office 
relates back to the beginning of the term and preserves the continuousness of the suc¬ 
cession. He is when on his way to take the oath deemed to he a Senator and privileged 
from arrest. A vacancy happens, and only happens, when the legislature has failed to 
make due election, or the person chosen declines the appointment, or when the office 
once filled is vacated by death, resignation, or otherwise. 

But if we adopt the narrowest possible construction imputed by Mr. Grundy in the 
Sevier report, the decision in the case of Lanman, the doctrine of the Sevier decision 
itself, is enough for the purpose of this case. If the failure of the Arkansas legislature 
to he in session after the expiration of Mr. Sevier’s term was decided by lot made the va¬ 
cancy contingent in the narrowest sense of that term, so that the governor could appoint, 
certainly the fact that there is no legislature in the Stateable to act constitutes such a 
contingency. Whether it so happens that the person once chosen is unable to remain 
in office, or it so happens that the legislature cannot meet and choose, the contingency 
of a vacancy in the office has occurred. The six months at the end of the term are no 
more important than six months at its beginning. The Constitution makes equally 
careful provision for either. 

GEO. F. HOAR. 

ANGUS CAMERON. 
JNO. J. INGALLS. 

Thursday, April 3, 1879. 

On motion by Mr. Saulsbury, the Senate proceeded to consider the resolution reported 
yesterday from the Committee on Privileges and Elections, declaring that Charles H. 
Bell is not entitled to a seat as a Senator by virtue of the appointment of the governor 
of New Hampshire. 

On motion by Mr. Hoar to amend the resolution by striking out, after the word ‘is,” 
the word “ not, ” 

Pending debate, 

Ordered , That the further consideration of the resolution he postponed to Monday next. 

S. Doc. 11-3 



34 


SENATE ELECTION CASES 


[The debate is found on pages 184-189 of the Congressional Record referred to in the 
head-note. ] 

Monday, April 7, 1879. 

The Senate resumed, &c. 

The question being on the amendment proposed by Mr. Hoar. 

[The debate is found on pages 273-286 of the Congressional Record referred to in the 
head-note. ] 

Tuesday, April 8, 1879. 

The Senate resumed, &c. 

The question being on the amendment proposed by Mr. Hoar. 

[The debate is found on pages 287-298 of the Congressional Record referred to in the 
head-note.] 

Wednesday, April 9, 1879. 

The Senate resumed, &c. 

The question being on the amendment proposed by Mr. Hoar. 

[The debate is found on pages 312-325 of the Congressional Record referred to in the 
head-note. ] 

Thursday, April 10, 1879. 

The Vice-President announced that the morning hour had expired, and called up the 
unfinished business of the Senate at its adjournment yesterday, viz, the resolution re¬ 
ported from the Committee on Privileges and Elections, April 2, 1879, declaring “that 
Charles H. Bell is not entitled to a seat as Senator by virtue of the appointment by the 
executive of New Hampshire”; and 

The Senate resumed the consideration of the resolution; and 

The question being on the amendment proposed by Mr. Hoar, viz: After the word 
“is” strike out the word “not,” 

After debate, it was determined in the affirmative—yeas 35, nays 28. 

On motion by Mr. Saulsbury, the yeas and nays being desired by one-fiftli of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Allison, Anthony, Bayard, Booth, Bruce, 
Burnside, Cameron of Pennsylvania, Cameron of Wisconsin, Chandler, Dawes, Edmunds, 
Ferry, Gordon, Groome, Hamlin, Hill of Colorado, Ingalls, Jones of Florida, Kellogg, 
Kirkwood, Logan, McDonald, McMillan, Morrill, Paddock, Platt, Plumb, Randolph, 
Rollins, Saunders, Teller, Voorhees, Walker, White, and Williams. 

Those who voted in the negative are Messrs. Bailey, Call, Carpenter, Cockrell, Coke, 
Conkling, Davis of Illinois, Eaton, Farley, Garland, Grover, Harris, Hereford, Hill of 
Georgia, Houston, Johnston, Jonas, Kernan, Lamar, Maxey, Morgan, Pendleton, Ran¬ 
som, Slater, Vance, Vest, Wallace, and Withers. 

So the amendment was agreed to. 

On the question to agree to the resolution as amended, as follows: 

‘ “ Resolved, That Hon. Charles H. Bell is entitled to a seat as a Senator by virtue of the 
appointment by the executive of New Hampshire,” 

It was determined in the affirmative—yeas 35, nays 28. 

On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Allison, Anthony, Bayard, Booth, Bruce, 
Burnside, Cameron of Pennsylvania, Cameron of Wisconsin, Chandler, Dawes, Edmunds, 
Ferry, Gordon, Groome, Hamlin, Hill of Colorado, Ingalls, Jones of Florida, Kellogg, 
Kirkwood, Logan, McDonald, McMillan, Morrill, Paddock, Platt, Plumb, Randolph, 
Rollins, Saulsbury, Saunders, Teller, Voorhees, Walker, Whyte, and Williams. 

Those who voted in the negative are Messrs. Bailey, Call, Carpenter, Cockrell, Coke, 
Conkling, Davis of Illinois, Eaton, Farley, Garland, Grover, Harris, Hereford, Hill of 
Georgia, Houston, Johnston, Jonas, Kernan, Lamar, Maxey, Morgan, Pendleton, Ran¬ 
som, Slater, Vance, Vest, Wallace, and Withers. 

So the resolution as amended was agreed to. 

Mr. Charles H. Bell then appeared, and the oath prescribed by law having been ad¬ 
ministered to him by the Vice-President, he took his seat in the Senate. 

[The debate is found on pages 341-355 of the Congressional Record referred to in the 
head-note. ] 

MILEAGE OF MR. BELL. 


Thursday, June 19, 1879. 

Mr. Saulsbury, by unanimous consent, submitted the following resolution; which was 
considered by unanimous consent, and agreed to: 

“ Resolved , That the Secretary of the Senate b*\ and ^treby is, authorized and 


CHARLES H. BELL. 


35 


directed to pay Hon. Charles H. Bell mileage at the rate allowed by law for attendance 
at this session, the same to be paid out of the ‘ miscellaneous items * of the contingent 
fund.” 


Friday, June 20,1879. 

Mr. Rollins presented the credentials of Henry W. Blair, elected a Senator by the 
legislature of New Hampshire for the unexpired portion of the term of six years com¬ 
mencing March 4, 1879; which were read. 

Mr. Blair then appeared, and the oath prescribed bylaw having been administered to 
him by the President pro tempore , he took his seat in the Senate. 


36 


SENATE ELECTION CASES. 


[Special session of Senate, March, 1885.] 


HENRY W. BLAIR, 

Senator from New Hampshire from June 20, 1879, to March 3, 1891. 


March 9,1885, the credentials of Mr. Blair, appointed by the governor to nSIJted 

during the recess of the legislature by the expiration of his previous term, March 3, 

A motion that the credentials be referred to the Committee on Privileges a .^ Elections was deter- 
mined in the negative. A resolution was then submitted that he be admitted ^ t^e th^ath of 
office, which was agreed to March 10. It appears from the debates that ilie case Z ® 
questions presented by the case of Charles H. Bell (see page 26); was rfectedm 

November, 1882, to serve for two years, whose term of office began in June, iSSS , that anoUier legis 
lature was elected in November, 1884, to serve for two years, whose term of office^offid °®^ ln . 

June, 1885; that the legislature elected in 1882, acting in accordance with } ts “^erpretation of the act 
of July 25, 1866, and in accordance with a report of this committee made in the Forty-fifth Congress 
on the same subject, had not elected a successor to Mr. Blair; that the question . 

vacancv arising under such circumstances was a vacancy “ happening by resignation or ot w_se, 

during* the recess of the legislature of any State.” (Article I, section 3, of Constitution.) Ex¬ 
tracts from remarks given below will show the grounds upon whioh different Senators p • 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Senate Journal, 48th Cong., 2d sess. (special session, March and April, 188&), ana 

extracts from remarks of Senators. „ , . ,, _._, 

The debates are found in the Senate proceedings of March 9 and 10, 188o, in the Congressional 
Record, vol. xvii, part 1, pages 4 to 6 and 16 to 26. 


Monday, March 9, 1885. 

Mr. Pike presented the credentials of Henry W. Blair, appointed a Senator by the 
governor of New Hampshire to fill the vacancy in the representation from that State hap¬ 
pening March 4, 1885, during the recess of the legislature. 

The credentials were read; and, 

On motion by Mr. Vest that they be referred to the Committee on Privileges and Elec¬ 
tions, it was determined in the negative. 

Mr. Hoar thereupon submitted the following resolution: 

“j Resolved, That Henry W. Blair, appointed a Senator from the State of New Hamp¬ 
shire, be now admitted to take the oath of office,” 

When, 

On motion by Mr. Harris, and by unanimous consent, 

Ordered, That the consideration of the resolution be postponed to to-morrow. 


, Tuesday, March 10, 1885. 

The Vice-President laid before the Senate the resolution yesterday submitted by Mr. 
Hoar, that Henry W. Blair be now admitted to take the oath of office as a Senator from 
the State of New Hampshire; and 

On the question to agree to the resolution, 

After debate, it was determined in the affirmative—yeas 36, nays 20. 

On motion by Mr. Vest, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Aldrich, Allison, Cameron, Chace, Con¬ 
ger, Cullom, Dawes, Edmunds, Evarts, Frye, Hale, Harrison, Hoar, Ingalls, Jones of 
Florida, Jones of Nevada, McMillan, Mahone, Manderson, Miller of California, Miller of 
New York, Mitchell, Morrill, Palmer, Pike, Platt, Riddleberger, Sabin, Sawyer, Sewell, 
Sherman, Spooner, Stanford, Teller, Van Wyck, and Wilson. 

Those who voted in the negative are Messrs. Beck, Blackburn, Camden, Cockrell, Coke, 
Eustis, Gibson, Gorman, Jackson, Jones of Arkansas, Kenna, McPherson, Maxey, Mor¬ 
gan, Payne, Pugh, Ransom, Saulsbury, Vance, and Vest. 

So the resolution was agreed to. 

Mr. Henry W. Blair then appeared, and the oath prescribed by law having been ad¬ 
ministered to him by the Vice-President, he took his seat in the Senate. 

[Extraot from remarks of Mr. Vest, of Missouri, in opposition to the resolution submitted by Mr. 
Hoar that Mr. Blair be admitted to take the oath of office. Found in the proceedings of March 10, 
1885, in the Congressional Record, vol. xvii, part 1, p. 16.] 

“Mr. President, yesterday I asked that the resolution should go over until to-day in 
order that it might be examined by the new Senators just sworn into this body, and in 


HENRY W. BLAIR. 


37 


order that those of ns who were members at the time the Bell case was under discussion 
and was determined should have an opportunity to refresh our recollection in regard to 
the points then made and discussed. It is not my purpose to enter into a lengthy r6- 
sum6 of that argument then so exhaustively made. I simply wish to say now that I 
reaffirm what was my conclusion then as a lawyer in regard to this subject. 

“I voted on the Bell case that Mr. Bell was not entitled to a seat in this body; that 
the governor of a State had no right to fill an entire term by original appointment; that 
the meaning of the Constitution, which declares ‘ if vacancies happen by resignation or 
otherwise, during the recess of the legislature of any State’ the executive authority of 
a State may make a temporary appointment, is that when a vacancy shall occur, not by 
operation of law, but by some event which applies to the individual asking lor the office 
or applying for admission into this body, by the resignation of a person, by death oper¬ 
ating upon him, and that the word ‘otherwise’ in that connection means by similar 
casualty—when a vacancy shall happen, when it shall occur, not by operation of statute 
or of any constitution, but when it occurs by resignation, death, or otherwise. 

‘ ‘ The terms of the Constitution as originally made—and I shall be very brief in the dis¬ 
cussion of the subject, 1'or I only propose to give my own reasons for casting my vote—the 
terms of the Constitution are: 

“ ‘ If vacancies happen by resignation or otherwise, during the recess of the legislature 
of any State, the executive thereof may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancy. ’ 

“There are three clauses in the Federal Constitution in which the word ‘happen ’ is 
used. First, in Article II, section 2, the Constitution says: 

‘ ‘The President shall have power to fill up all vacancies that may happen during the 
recess of the Senate, by granting commissions which shall expire at the end of their next 
session. ’ 

“Article I, section 2. provides: 

‘ ‘ ‘ When vacancies happen in the representation from any State, the executive author¬ 
ity thereof shall issue writs of election to fill such vacancies.’ 

“Article I, section 3, which is the clause now under discussion, provides: 

“ ‘And if vacancies happen by resignation or otherwise, during the recess of the legis¬ 
lature of any State, the executive thereof may make temporary appointments until the 
next meeting of the legislature, which shall then fill such vacancies. ’ 

‘ ‘ In all three of these clauses the word ‘ happen ’ is used, but I call the attention of 
the Senate to the fact that in the first two clauses in regard to vacancies in the House of 
Representatives and vacancies during a recess of the Senate as to executive officers, the 
word ‘happen’ is without limitation, ‘where vacancies shall happen,’ and there is the 
termination of the power of the President in regard to executive appointments; but in 
regard to Senators the Federal Convention put a limitation upon the word ‘ happen. ’ 
They did not stop with declaring where vacancies may happen during a recess of a legis¬ 
lature that then the governor may appoint, but where a vacancy shall happen by resig¬ 
nation or otherwise. 

‘ ‘ If the Senators now present are correct who claim the power of a governor to exist 
to appoint in these cases, we are forced to the conclusion that the words ‘ by resignation 
or otherwise ’ are void and meaningless as used by the framers of the Constitution, or else 
that the terms are a limitation upon the word ‘ happen. ’ They are not found in the other 
two clauses of the Constitution. What makes this argument more significant and con¬ 
clusive to my mind is that the original draught of the Constitution, which I have before 
me, and the debates show that the clause as originally reported to the convention of 
1787 was absolute and unlimited, when a vacancy should occur, and Mr. Madison moved 
to put in these terms of limitation, that where the vacancy should occur by resignation 
or otherwise, or equivalent terms, then the governor of the State might appoint. 

‘ ‘ I know it has been said that contemporaneous construction at the time militates 
against this view. In the debate which occurred in the Bell case an editorial was read 
from the National Intelligencer of March 8,1825, and it was said that this bad been adopted 
by Judge Story and by Mr. Gordon, who was compiling a book in regard to the proceed¬ 
ings of Congress at that time. The most authoritative statement in regard to the mean¬ 
ing of Congress and the debates of Congress at that time is found in Niles’s Register, the 
authority of which I take it will not be questioned on this floor. In Niles’s Register I 
find the following: 

“ ‘The following members’— 

“Says the Register of March 12, 1825— 

‘ ‘ ‘ The following members, also re-elected for six years from this day, took the oath of 
office, namely: Mr. Lloyd, of Maryland; Mr. Macon, of North Carolina; Mr. Guillard, 
of South Carolina; Mr. J. S. Johnston, of Louisiana; and Mr. Barton, of Missouri. 

“ ‘Some conversation took place on the case of Mr. Lanman, reappointed by the gov¬ 
ernor in the recess of the legislature, the question being, whether a failure by the legis-. 


38 


SENATE ELECTION CASES. 


lature to make a choice of a Senator constitutes the contingency in which a governor may 
appoint a Senator, the language of the Constitution being, ‘if vacancies happen, by resig¬ 
nation or otherwise, ’ ’ &c. ’ 

“It is said, and conspicuously by the Senator from Massachusetts [Mr. Hoar], that the 
quotation in the National Intelligencer and in the book by Gordon showed that the Lan- 
man case decided in 1825 did not touch this question, did not determine it, and that the 
Lanman case, a case from Connecticut, went off on the power of the governor to make an 
appointment before the vacancy existed. Niles’s Register asserts emphatically that the 
very point now at issue before the Senate was decided in 1825. I know that other cases 
were decided antecedent to the Lanman case, but they were decided, I affirm, without 
discussion, without debate. 

“In 1825 this precise case was brought before the Senate of the United States, and it was 
decided then that the governor could not appoint as to a full term. In 1825 for the first 
time this question was elaborately and exhaustively debated by the ablest lawyers then 
in the United States, and it was decided that the governor did not have the right to make 
such an appointment; and I say to-day, as was said in the Bell discussion, that from 1825 
to the decision of the Bell case in 1879 not one solitary utterance was ever heard upon 
this floor or elsewhere which questioned the accuracy of the position I take here now. 

“I know it is said that the Sevier case from Arkansas, decided in 1837, antagonizes this 
view; but the report of Mr. Felix Grundy on the Sevier case asserted that that decision 
was not in antagonism to the Lanman decision, but that it was made upon the express 
ground that Sevier had drawn his seat by lot, and that therefore the term “happen” 
applied to that case; but Mr. Grundy expressly says, and I have his report before me as 
chairman of the Judiciary Committee, that the Lanman case was the precedent; that it 
decided the correct doctrine, and it was held so invariably until the decision of the Sen¬ 
ate in 1879. 

“Mr. Wadleigh, from New Hampshire, in discussing this very question admitted that 
the Lanman case was decisive of the whole matter. Says Mr. Wadleigh: 

“ ‘ The Senator from Ohio ’— 

“Referring to Mr. Thurman— 

“ 4 The Senator from Ohio would have us believe that there is some doubt as to whether 
this legislature or the next is entitled to elect. That is a matter which greatly concerns 
the people of New Hampshire. It is desirable that that question should be settled at once, 
so that they may not put themselves in a position from which they cannot be extricated 
without great embarrassment. Accordingly a bill was presented to this body by the Sen¬ 
ator from Wisconsin [Mr. Cameron] and referred to the Committee on Privileges and Elec¬ 
tions, which reported unanimously that this legislature cannot elect the Senator, that 
the next legislature must elect. That shows to us clearly that unless this bill passes 
there must be a vacancy in this Senate from the State of New Hampshire for three months 
in the next Congress. ’ 

“ In other words, that the governor could not fill the vacancy; and there is upon the 
other side of this Chamber a succession of weighty authority in the same direction. Mr. 
Thurman asked: 

“ ‘ Is there any probability of Congress being in session during those three months? 

“ ‘ Mr. Wadleigh. I do not know about that. 

“ ‘ Mr. Whyte. I ask the Senator from New Hampshire why the governor of New 
Hampshire cannot appoint for the vacancy until the legislature meets in June? 

“ ‘Mr. Blaine. He cannot do that if the previous term has fully expired.’ 

‘ ‘ Which is the very case here. 

“ ‘ Mr. Whyte. Suppose this legislature has power to elect and does not elect, is not 
that a vacancy? 

“ ‘ Mr. Blaine. Then the power of the governor does not come in. 

“ ‘ Mr. Whyte. It does, apparently. 

“ ‘ Mr. Blaine. Not at all. 

“ ‘ Mr. Dawes. Every precedent of the Senate is against that. 

“ ‘ Mr. Blaine. The Senator from Maryland is too good a lawyer to make that asser¬ 
tion. 

“ ‘ Mr. Wadleigh. Having examined the precedents, I am inclined to think the gov¬ 
ernor cannot appoint. 

“‘Mr. Blaine. Of course the governor cannot appoint. Nothing is better settled 
than that. The honorable Senator from Ohio [Mr. Thurman] will give his assent to that 
if the term has fully expired. ’ 

“Never until the Bell decision by the Senate was any voice ever raised from 1825 to 
1879 which gave to the governor of a State the right to fill a full term. 

“ I remember very well in the Bell discussion when Senator Conkling, of New York 
put a question to Senator Hill, of Georgia, in regard to the power of the governor to fill 
the term. Senator Conkling said: ‘ If that power exists, the governor, by collusion 


HENRY W. BLAIR. 


39 


with a majority of the legislature, could from time to time put off an election and fill 
the vacancy out of his own creatures and to suit himself.’ Senator Hill replied to him 
that that was the identical argument which he proposed to make, and that that was the 
meaning of the constitutional provision, which did not give this power to the executive 
of a State. 

1 ‘ But if I had any doubt about the meaning of the Lanman decision, I find it in Mr. Ben¬ 
ton’s Thirty Years’ View, and he was the most accurate man who ever wrote in this 
c °untry in regard to the proceedings of this body or the other. Mr. Benton says: 

“ ‘ Mr. Lanman has served a regular term as Senator from Connecticut. His term of 
service expired on the 3d of March of this year, and the general assembly of the State 
having failed to make an election of Senator in his place, he received a temporary appoint¬ 
ment from the governor. On presenting himself to take the oath of office, on the 4th day 
of March, being the first day of the special Senatorial session convoked by the retiring 
President (Mr. Monroe) according to usage for the inauguration of his successor, his ap¬ 
pointment was objected to as not having been made in a case in which a governor of a 
State could fill a vacancy by making a temporary appointment. Mr. Tazewell was the 
principal speaker against the validity of the appointment, arguing against it both on the 
words of the Constitution and the reason for the provision. The words of the Constitu¬ 
tion are: “ If vacancies happen (in the Senate) by resignation or otherwise, during the 
recess of the legislature of any State, the executive thereof may make temporary appoint¬ 
ments, until the next meeting of the legislature.” “ Happen ” was held by Mr. Taze¬ 
well to be the governing word in this provision, and it always implied a contingency, 
and an unexpected one. It could not apply to a foreseen event, bound to occur at a fixed 
period. Here the vacancy was foreseen; there was no contingency in it. It was regu¬ 
lar and certain. It was the right of the legislature to fill it, and if they failed, no matter 
from what cause, there was no right in the governor to supply their omission. The Sen¬ 
ators voting in favor of the motion were, &c.’ 

1 ‘ Showing from the highest authority that in the Lanman case the identical point at 
issue here to-day was raised an$ decided and remained an unbroken precedent from 1825 
to 1879. 

‘ ‘ But, Mr. President, more than that, and I am speaking as rapidly as possible, for 
this question has been fully exhausted, and I think the decusion in the Bell case will 
be affirmed here again to-day; and I merely make this statement, as I said before, in 
order to affirm my own established opinion upon this question and the reasons which I 
have for it, it has always been held here, it has never been for one instant contradicted, 
that if the legislature of a State had been in session which could have filled the vacancy, 
and had the power to fill the vacancy, and refused to do it under the Constitution, then 
the governor could not possibly have the power to appoint. Now, the legislature of New 
Hampshire has been in session; the legislature of New Hampshire has had the power to 
fill this vacancy. The legislature of New Hampshire applied to the supreme court of that 
State, under the constitution of New Hampshire, to ascertain whether the power existed 
in the legislative assembly. The supreme court declared to them that the power did 
exist. They deliberately refused to exercise it; they adjourned; and now it is claimed, 
in view of these facts, that the chief executive of that State has the right, as I hold, in 
direct contravention of the terms and spirit of the Constitution, to fill a full term, and 
that that power exists not ex vi termini upon those terms, but according to the meaning 
of the Constitution itself. 

“ This is all I desire to say, sir. I shall vote against this gentleman’s admission, be¬ 
lieving the precedent in the Lanman case to be the correct one; and I shall do so the 
more cheerfully because I am not ashamed to be found as a lawyer in company with the 
memory of Carpenter, of Wisconsin, with the opinion of Judge Davis, of Illinois, who 
voted with me, and with the present Attorney-General of the United States, who made 
a learned and exhaustive argument upon the same side. I am not ashamed to assert the 
same opinion in that company and to give feebly the reasons which were then uttered.” 

[Extracts from remarks of Mr. Hoar, of Massachusetts, in support of the resolution submitted by 
him tl.at Mr. Blair be admitted to take the oath of office. Found in the proceedings of March 
10,1885, in the Congressional Record, vol. xvii, part 1, p. 17.] 

“Mr. President, I do not think it will be profitable to enter upon the very wide field 
of discussion which the question involved in this case opens. I think the Senate will 
prefer to rest its decision to-day upon the authority of one of the most authoritative 
precedents which have occurred in its history. 

“If a legislative body exercising quasi-judicial functions like that which is exercised 
when the Senate determines the right of a claimant to a seat here can ever be bound by a 
precedent, the Senate has bound itself by the precedent established in the case of Mr. Bell. 
It was established on full discussion by great lawyers and great Senators. It was estab¬ 
lished by a decisive majority, in which the division was totally non-partisan. The great 


40 


SENATE ELECTION CASES. 


debaters and lawyers to whom my honorable friend from Missouri alluded who differed 
with the majority of the Senate on that occasion put forth some of their ablest and best 
intellectual efforts, rendering it certain that the decision to which the Senate then arrived 
was a decision moved in view of every reason which could be suggested bearing upon 
the question. 

“The people of the State of New Hampshire have governed themselves and must 
govern themselves and had a right to govern themselves by the decision which the Sen¬ 
ate then made, and nobody can hope that if by a slight majority that decision should be 
reversed to-day it would stand reversed. Therefore the people of the State of New 
Hampshire and of all other States where like questions may arise would find themselves 
in the condition of being compelled to act one way one year and another another, as the 
changing majority or opinion of the Senate may decide this case and that as it should come 
up year after year. 

“When the question which now arises came up six years ago there were found voting 
in favor of the right, and of course of the duty and obligation, of the governor of a 
State to appoint a Senator in a case like this gentlemen on both sides of the Chamber. 
There was the distinguished gentleman who now sits at the left of my friend from Mis¬ 
souri, the Senator from Indiana [Mr. Voorhees], in that vote, relying, as I have no doubt 
he did, on the decision of one of the very ablest j udges then pronouncing the opinion of the 
supreme court of his own State on the intepretation of precisely or substantially similar 
language. There was found Mr. Bayard, the present Secretary of State; Mr. Gordon, of 
Georgia; Mr. Groome, of Maryland; Mr. Jones, of Florida, now occupying a seat in the 
Senate; Mr. McDonald, then representing also the State of Indiana; Mr. Randolph, ot 
New Jersey; Mr. Walker, of Arkansas, and Mr. W. Pinkney Whyte, of Maryland, who 
inherited both the name and blood and largely the capacity of one of the greatest consti¬ 
tutional lawyers who ever occupied a seat in this body. 

“Now, I think it is enough to rest this case upon the consideration that if the Senate 
can adjudge anything it has adjudged this; but perhaps it may not be improper to take 
a very few minutes, not in a discussion in detail, but in a*mere statement of the history 
of this constitutional question. 

“The Constitution of the United States contains this provision, which I submit is the 
controlling and governing provision, that the several States of the Union shall have au 
equal and constant power in the Senate of the United States by the representation with 
which two Senators are clothed. That is what the Constitution means to effect. There 
is not a full Senate, there is not a State represented and having its equal right and au¬ 
thority in the Senate when any single seat is vacant. To that end the Constitution 
provides as a mechanism for carrying out and accomplishing the purpose that these seats 
shall always be full, and that every State in this body shall be the equal of every other 
State. The provision is that the legislature shall choose their Senators— 

“ 'And if vacancies happen by resignation, or otherwise, during the recess of the legis¬ 
lature of any State, the executive thereof may make temporary appointments until the 
next meeting of the legislature, which shall then fill such vacancies. ’ 

‘ ‘ This language verbatim is repeated in the Constitution in another place, where it is 
provided that if vacancies happen in any executive office during a recess of the Senate the 
President shall have the power to make an appointment until the next session. Under 
that provision time out of mind, originally on the authority of William Wirt and I be¬ 
lieve John Marshall, the President of the United States has been held without dispute 
to have the right to appoint to an office the legal or constitutional term of whose incum¬ 
bency ends when Congress is not in session. 

“Here, therefore, are two sentences in the Constitution, one intended to preserve the 
continuance of executive power by the discharge of the duties of the subordinate ex¬ 
ecutive officer, and the other intended to preserve the continuance of legislative power 
by keeping the Senate full, in regard to which the Senator from Missouri is compelled 
to claim that there is a totally different meaning. If the executive office is vacant, the 
small, the subordinate, which does not affect the functions of the Government or the 
equality of the States, or the completeness of one of the two great legislative bodies of 
the country , it means that if there happen, or if it so be that there is no officer in exist¬ 
ence authorized to exercise those functions, then the President may appoint. And yet 
the Senator claims that the same language means a totally different thing in the case of 
the Senate. 

* * * * * * * 

“Well, Mr. President, I thank the Senator for his interruption. The Senator con¬ 
cedes that a vacancy has happened, within the constitutional meaning of that term, in 
the representation of the State of New Hampshire. Now, as I understand, he puts his 
argument solely on the ground that the words which were intended to mean, in my 
judgment, if a vacancy shall happen in any possible way, that is by resignation (which 
is one ordinary way of creating a vacancy) or in any other method whatever, then the 


HENRY W. BLAIR. 


41 


right of the governor to fill the Senatorial office by appointment exists, do not apply to 
this case. Now, it seems to me, and I submit to the good sense of that Senator himself, 
that it is utterly incredible, first that the founders of the Constitution should ever have 
intended to let the Senate be full if the vacancy happened during a term and that it 
should be vacant until a legislature should meet if a vacancy happened at the beginning 
of a term. It is utterly incredible that they should have entertained that purpose; but 
entertaining that purpose, it is still more incredible that any one of the learned lawers 
and able statesmen who framed the Constitution could have undertaken to effectuate it 
by such language as he has described. Just think of Mr. Madison desiring to provide 
that this power of the governor of a State to keep full the representation of his State in 
the Senate should have a limitation upon it that he should not exercise it at the beginning 
of a constitutional term, and having in mind the limitation and the restraint that he 
should have undertaken to express it, and to give legal and constitutional effect to it, by 
simply adding the words, ‘ by resignation or otherwise. ’ He would have said, ‘ by res¬ 
ignation, and not otherwise,’ if he had intended to give constitutional effect to that 
idea. 

‘ ‘ The Constitution using, I repeat, substantially the same language to provide for the 
two cases if a vacancy shall happen, the Senator is driven to say that ‘ happen ’ means 
one thing in case of the Senatorial office and another thing in the case of the executive 
office. But conceding that the words have the same meaning, he undertakes to resort 
to language intended to amplify, to make clear, to make universal in the important case 
of the Senator the existence of the power, and claims that that is used as a limitation or 
restriction ! 

“Mr. President, the framers of the Constitution, and the men who filled these seats 
from the beginning to the year 1825, beyond any question took the view of the matter 
which was taken by the Senate in the Bell case; and it is conceded, as the Senator from 
Missouri himself has conceded, that in ten instances Senators were appointed and took 
and held their seats in consequence of the exercise of the authority of the executives 
of their States at the beginning of a constitutional term, when the legislature for any 
reason had failed to provide by an election. These cases are all cited in the report which 
was made in the case ol Mr. Bell six years ago. 

“The first is the case of William Cocke, of the State of Tennessee. The State being 
admitted into the Union in 1796, Cocke having drawn the term which expired on the 
3d of March, 1797, he was appointed by the governor to be his own successor on the 22d 
of April, 1797. The second case was that of Uriah Tracy, a Senator from the State of 
Connecticut, whose term expired on the 3d of March, 1801, and under an appointment 
by the governor made on the 4th of March—precisely the case of Mr. Blair—he claimed 
his seat and was admitted after a very earnest and heated discussion by a party vote of 
13 to 10. This precedent was followed the next day by the admission of Mr. Hindman, 
of Maryland; by the admission of Mr. Condit, of New Jersey, in 1803; Mr. Anderson, of 
Tennessee, and Mr. Smith, of Maryland, in 1809; Mr. Cutts, of New Hampshire, in 1813; 
Mr. Williams, of Tennessee, in 1817; all executive appointments to fill places made 
vacant by the expiration of full terms of service during recesses of the legislature, and 
all were admitted without discussion and without objection. 

“ Then in the year 1825 came the case to which the Senator has referred, of James 
Lanman. Mr. Lanman was appointed by the governor during the recess of the legisla¬ 
ture of the State of Connecticut for the beginning of the full term which was to begin 
on the following 4th of March. The vacancy had not happened when the governor made 
the appointment, and by an unbroken series of precedents with but one exception it had 
been held that the governor had no authority to make the appointment under this con¬ 
stitutional clause in anticipation of a vacancy. In the first place it did not come within 
the letter of the Constitution; and in the next place not only did it not come within the 
letter of the Constitution, but it was impossible for the governor to know that the legis¬ 
lature would not assemble and fill the place before the constitutional term began. In one 
of the early cases the governor had made the appointment in anticipation. I think that 
was not noticed by the Senate; at least no point was made upon it, and the Senator was 
admitted without objection; but in no other case had that happened. 

“In the Lanman case, therefore, there was a clear, unquestionable objection. The 
debates are not reported. Who knows what the ground was upon which the majority of 
the Senate proceeded ? The National Intelligencer on the next day in a very clear article 
stated that the Senate had proceeded on the ground which I have stated, that the governor 
could not exercise his authority until the vacancy actually occurred. Mr. Gordon, of 
Pennsylvania, in his Digest of the Laws of the United States, who is referred toby Judge 
Story as a very able and accurate law writer cotemporary with that decision, and whose 
book was published a few years after, stated that the case went upon the ground that 
the governor had no right to appoint until the vacancy actually happened. Judge Story 
in his work on the Constitution of the United States, on the authority of Mr. Gordon’s 


42 


SENATE ELECTION CASES. 


Digest, Judge Story being a cotemporary of the Senators who made the decision, sitting 
here in court at the time it was made, undoubtedly hearing and knowing something per¬ 
sonally of so interesting a historic event, says that it was put by the Senate upon the 
ground that the governor had no right to appoint in anticipation of a vacancy. And the 
first suggestion, so far as I know—I do not remember the Niles’s Register statement which 
the Senator read—that anybody put the Lanman case upon any other ground than the 
clear, indisputable ground which I have stated is in Mr. Grundy’s report made twelve 
years after. Mr. Grundy, in distinguishing the Sevier case, undertakes to make his dis¬ 
tinction from the Lanman case by saying that the Lanman case went upon the ground 
that the governor could not appoint when the vacancy happened at the beginning of a 
term. 

******* 

“How weak a proposition—I do not now apply the adjective to my honorable friend’s 
statement, which is a very strong and clear one—but how weak a proposition that is, 
whoever made it, that a single man should undertake to pronounce the ground upon 
which forty or fifty Senators proceeded in determining a question of constitutional law, 
when only one or two of them engaged in the debate. Suppose it to be true that Mr. 
Tazewell agreed with my honorable friend from Missouri and with the gentleman whose 
high authority he has cited and so argued, and every other member of the Senate knew 
perfectly well that whether that was sound or unsound Lanman was not entitled to his 
seat for the clear and indisputable reason that his appointment had been made by the 
governor before the vacancy occurred. Does the Senator from Missouri doubt that every 
one of that majority would have voted against Lanman for the reason that the governor 
had made the appointment before he had the right to appoint, just as if Mr. Blair had 
been appointed six months ago by the governor of New Hampshire? That being the 
case, we are all ageeed that the majority of the Senate would have been constrained to deny 
the claim of Mr. Lanman. For that reason it seems to me that it is utterly preposterous 
to say that because one particular Senator made an argument stating another ground 
also, a majority of the Senate must of course have proceeded on that, and that is a judg¬ 
ment of the Senate of sufficient strength and weight to bear down an uninterrupted 
series of precedents coming down to the year 1825, and to bear down also the latest and 
gravest precedent bearing upon the question that happened six years ago. 

‘ ‘ Mr. President, this is the general history of this case. It will be found stated at 
greater length, with all the authorities, all the points as far as I could think of them, in 
the report made from the Committee on Privileges and Elections by the minority in the 
Bell case and in the discussion six years ago. If any Senator desires to refresh himself 
on the question he can look at that report and those debates. But it is, it seems to me, 
enough, in addition to what I have said, to remark that I cannot conceive it credible that 
the framers of the Constitution, having for their first and leading object the keeping of 
the Senate full, the rights of the people and the rights of the States preserved by their full 
and complete representation, and having given the governor of the State the right to 
provide for an exigency which would arise at any other period of the term, should have 
intended to deprive the people of that privilege and the governor of that authority, 
merely because the vacancy happened at the beginning of the term. 

“You have on one side the ten or twelve precedents made by the fathers of the Re¬ 
public; you have also the decision of the executive department acquiesced in from the 
foundation of the Government, supported by the authority of John Marshall and William 
Wirt, in regard to the meaning of precisely similar language in another part of the Con¬ 
stitution; you have the great judgment of the supreme court of Indiana, your own State, 
Mr. President, made by one of its most accomplished jurists, and you have in addition 
to that the necessity of preserving the rights of the people of these States; and the one 
thing opposed is a decision of the Senate, in regard to which no man can know that any 
single Senator but Mr. Tazewell or possibly Mr. Benton, who wrote about it twenty-five 
years after, put his decision on this ground, and a decision which the Senate would have 
been compelled to make on another ground if this ground had never existed; and it is 
that doubtful, questionable, uncertain precedent upon which the learned Senator and 
those who think with him rely to bear the weight of this case.” 


[Remarks of Mr. Pike, of New Hampshire, in support of the resolution submitted by Mr. Hoar that 
Mr. Blair be admitted to take the oath of office. Found in the proceedings of March 10, 1885 in 
the Congressional Record, vol. xvii, part 1, p. 23.] 

“Mr. President, inasmuch as some criticism has been made upon the legislature of New 
Hampshire, and it has been stated by some gentlemen that they had not acted in the 
choice of a Senator when they should have acted, I desire to say a few words. 

“We have a legislature once in two years—a biennial legislature. One was chosen in 
November, 1882, and another was chosen last November, or November, 1884. Now, the 
question is, which legislature has the right to elect? After our constitution was changed 


HENRY W. BLAIR. 43 

that became a mooted question in our State. We had the national law, to which I will 
ask the attention of Senators while I read: 

“ ‘The legislature of each State which is chosen next preceding the expiration of the 
time for which any Senator was elected to represent such State in Congress shall, on the 
second Tuesday after the meeting and organization thereof, proceed to elect a Senator in 
Congress. ’ 

By this national law of 1866 the legislature chosen next preceding the expiration of 
the term was the legislature to elect. Our legislature supposed that the legislature 
chosen last November in Mr. Blair’s case was the one next preceding the end of his term, 
which was to expire on the 4th of March. A large majority of them acted upon that 
idea. But precisely the same question arose six years ago at the expiration of Mr. Wad- 
leigh’s term, and at the time when Mr. Bell was appointed, about whom so much talk 
has been made. 

“That our legislature might put itself in harmony with the National Government, 
that it might act in obedience to the national law, application was made to the Congress 
of the United States, and the recent Senator from Wisconsin, Mr. Cameron, introduced 
a bill by which the national law that I have read might be so modified as to meet the 
condition of things in our State. The question came up here and was considered by the 
Committee on Privileges and Elections of this very Senate as to whether the legislature 
elected in the autumn before the expiration of Mr. Wadleigh’s term, or the legislature 
elected two years before, was the one that should choose the Senator to succeed him; and 
that bill and that question were considered by the Committee on Privileges and Elections, 
and Mr. McMillan, a Senator now upon this floor, made the unanimous report of that 
committee that the legislature elected immediately preceding the expiration of the term, 
that is, the legislature in Mr. Bell’s case, elected the autumn before, and the legislature 
in the present (Mr. Blair’s) case, elected last autumn, was the legislature that had the 
power, and the only legislature that had the power, to elect. 

“That report was submitted to this body, and by a unanimous vote, as the record 
shows, not a single Senator here dissenting upon adopting the report of that committee, 
the legislature of New Hampshire elected last autumn was the one and the only one that 
could elect a Senator for this term. Now, it seems to me that New Hampshire ought not 
to be very much criticised when she has made this effort to find what the national will 
was and to find what the will of the Senate was, because she has obeyed it and because 
she has not disobeyed it; more especially after the question as to whether the governor 
had the right to fill the vacancy at the end of Mr. Wadleigh’s term in 1879 was raised 
and it was decided that he had the power. 

‘ ‘ Mr. President, I hold a seat on this floor. I was elected two years ago last August 
by the legislature assembling in June, but my term commenced in the March before. 
Our legislature acted upon the idea that the national law as they understood required, and 
as the construction given it unanimously by the Senate required, that the legislature to 
elect, and the only one which could elect, was the one chosen immediately preceding 
the end of the term. 

“In a discussion six years ago in Mr. Bell’s case the then Senator from Delaware, Mr. 
Bayard, so recently here and so distinguished when here, submitted his views to the 
Senate, and upon the question what legislature has the right to elect in New Hampshire, 
whether it be the one elected in November preceding the end of the term or the one 
elected two years and a half before, said: 

“ ‘ By that law ’— 

‘ * Having quoted immediately before the national law which I have read— 

“ ‘ By that law was indicated the legislature and the only legislature which should fill 
vacancies in the Senate of the United States, whether occurring by expiration of the term 
or from any other cause. ’ 

‘ ‘ That was the opinion of the distinguished Senator from Delaware then, as it had been 
the unanimous opinion of the Senate only four years before. 

‘ ‘ Allusion has been made to the supreme court of our State. As I said, there has been 
considerable division of sentiment in our State, although our legislature has been very 
largely in favor of giving the construction to the national law that its plain terms seem 
to indicate it ought to have, and which the Senate has given to it, and which the seating 
of Mr. Bell affirmed. The opinion of the court was asked three years ago. My recent 
colleague and the gentleman who asks a seat here introduced this question into the Sen¬ 
ate by a resolution asking the Senate to reconsider and revise its opinion if it was erro¬ 
neous. There may be found in the Congressional Record, which I have here, the opinion 
of the court upon this question which he cited. The opinion of our court was read by 
him, and, as I said, it is printed in the Record with other opinions. But notwithstand¬ 
ing that, the Senate decided that the national law was too plain to be misunderstood; that 
it was necessary it should be construed as it had been construed, and refused to render 
any relief. 


44 


SENATE ELECTION CASES, 


•‘Mr. President, I have but little more to say. I am not only asserting the fact, but I 
have the conviction in my own mind that the clause in our National Constitution which 
says that ‘ when vacancies happen from resignation or otherwise, ’ instead of being words 
of limitation, ought to be construed to have a very different meaning. This is the only 
branch of the Government where States have an equality, where one State has just as 
much power as another. The framers of the Constitution were so much in earnest that 
that should be the fact that they prohibited any amendment to the Constitution depriving 
the States of their equality of suffrage in this body. My idea is that when the framers 
of the Constitution said ‘when a vacancy happens by resignation, or otherwise,’ they 
meant when it happens by resignation, or otherwise, from any cause whatever; that they 
are words of enlargement and explanation, so that there might not be any doubt upon 
the question that this body should have equal representation, that there should be equal 
suffrage on this floor, and that if a vacancy occurred from any cause the executive should 
have the right to fill it. 

“Now where do we stand on this question? The Government decided first by the 
national law, and the Senate has decided upon the McMillan report and upon the ad¬ 
mission of Mr. Bell, that the legislature having the right was the one elected immediately 
preceding the end of the term. Then they have settled in Mr. Bell’s case another ques¬ 
tion, as to filling the vacancy happening at the end of the term and before the meeting 
of the legislature, that the governor had the right to appoint, under which appointment 
Mr. Bell was seated; and that is precisely the question before us to-day.” 

[Extracts from remarks of Mr. Edmunds, of Vermont, in support of the resolution submitted by 
Mr. Hoar that Mr. Blair be admitted to take the oath of office. Found in the proceedings of 
March 10, 1885, in the Congressional Record, vol. xvii, part 1, p. 23.] 

“I wish to say one word, Mr. President, about what is called the act of Congress of 
1866. The Constitution provides that Congress may regulate the manner by which and 
the time at which the legislature of a State shall elect a Senator. That is all the author¬ 
ity which the Constitution of the United States reposes in Congress over that subject. 
It says in another place, but in the same connection, that the legislature of a State shall 
ordinarily—I am not now on the question of filling vacancies—elect a Senator for a term 
of six years. It names nothing but the legislature of a State to do that. 

“I was here when the act of 1866 passed, but I had just come into the Senate and I 
gave it no attention; I probably voted for it if there was a division, it being reported 
by a committee. But I have been of the opinion ever since I came to examine the sub¬ 
ject, and I am of opinion now, as I have stated before, I think, in this body, that the act 
of Congress, in so far as it undertakes to declare what legislature, whether chosen before 
or after the expiration of a term, or how long before or how long after, shall elect a 
Senator, goes beyond its constitutional power. I am also of opinion, and I state it delib¬ 
erately, and I believe I have stated it before, that when the Congress of the United 
States undertakes to create a body to elect a Senator which the constitution of the State 
has not created and which is not its legislature it has gone beyond its powder. 

“By the constitution, I think, of every State in the Union, certainly every one that 
I know of, the legislative power is vested in two separate and independent bodies, each 
one of which acts by itself and for itself, and that is the legislature of the State of which 
the Constitution of the United States speaks when it says that the legislature shall elect 
a Senator. Therefore I am of opinion that Congress has no more power to turn the two 
bodies, the senate and house of representatives of a State, formed under its own constitu¬ 
tion as two separate bodies of different numbers and of different constituencies, into one 
consolidated body voting per capita , than it has to declare that a town meeting in the State 
of Vermont may elect a Senator and call that a legislature, because it is not by the con¬ 
stitution of the State its legislature. But that is apart from this question, and I should 
not have referred to it only that the act of Congress has been spoken of. 

“Now let us come to the question. First, I will begin with the original Constitution, 
to which my friend from Missouri has made reference, as he supposes supporting his 
view of the meaning of the words “resignation or otherwise.” In the original draught 
of the Constitution submitted to the convention, as it appears on page 205 of volume 5 
of Elliott’s Debates, in the Madison Papers, the third section was: 

‘“On the death, removal, or resignation of any Senator, his place to be filled out of 
the district from which he came. ’ 

That was the first draught. The scheme ha ving been entirely changed and abandoned 
later on, at page 377, Mr. Rutledge, on the 6th of August, 1787, reported from the com¬ 
mittee of detail as follows: 

Art. V, Sec. 1. The Senate ol the United States shall be chosen by the legisla¬ 
tures of the several States. Each legislature shall choose two members. Vacancies may 
be supplied by the executive until the next meeting of the legislature. Each member 
shall have one vote. ’ 


HENRY W. BLAIR. 


45 


‘ There, as it stood in that final report in detail, final at that time but changed after 
ward, you will see that there was no limitation or qualification or restriction except 
‘vacancies.’ They might occur during the sitting of a legislature. Whenever they 
occurred the» executive was to fill those vacancies until the legislature should elect, not 
until its next meeting even; but in order to keep the representation of the States full, 
in order to create a national government which should have all its faculties and all its 
members in place to perform their duties, this draught reported by the committee of 
detail provided for a universal filling of a vacancy by the executive, and provided for his 
filling it if a vacancy happened or occurred or existed, whatever it was, even if the 
legislature were sitting. 

“ Now we come to the amendment of Mr. Madison. That draught was under consid¬ 
eration on the 9th of August. Article Y, section 1, the one I have read, was taken up, 
and I shall read the whole proceeding in connection, without any observation, so that it 
will appear just as it stands in these debates: 

“ ‘Mr. Wilson objected to vacancies in the Senate being supplied by the executives of 
the States. It was unnecessary, as the legislatures will meet so frequently. It removes 
the appointment too far from the people, the executives in most of the States being 
elected by the legislatures. As he had always thought the appointment of the executive 
by the legislative department wrong, so it was still more so that the executive should 
elect into the legislative department. 

“ ‘ Mr. Randolph thought it necessary, in order to prevent inconvenient chasms in the 
Senate. In some States the legislatures meet but once a year. As the Senate will have 
more power and consist of a smaller number than the other house, vacancies there will 
be of more consequence. The executives might be safely trusted, he thought, with the 
appointment for so short a time. 

“ ‘ Mr. Ellsworth. It is only said that the executive may supply vacancies. When 
the legislative meeting happens to be near the power will not be exerted. As there will 
be but two members from a State, vacancies may be of great moment. 

“ ‘ Mr. Williamson. Senators may resign or not accept. This provision is therefore 
absolutely necessary. 

“ ‘ On the question of striking out “vacancies shall be supplied by the executives”— 

“‘Pennsylvania, ay, 1; New Hampshire, Massachusetts, Connecticut, New Jersey, 
Virginia, North Carolina, South Carolina, Georgia, no, 8; Maryland, divided. 

“ ‘Mr. Williamson moved to insert, after “vacancies shall be supplied by the execu¬ 
tives,” the words, “unless other provision shall be made by the legislature” (of the 
State). 

* ‘ ‘ Mr. Ellsworth. He was willing to trust the legislature, or the executive, of a 
State, but not to give the former a discretion to refer appointments for the Senate to 
whom they pleased. 

“ ‘On the question on Mr. Williamson’s motion, Maryland, North Carolina, South Car¬ 
olina, Georgia, ay, 4; New Hampshire, Connecticut, Massachusetts, New Jersey, Penn¬ 
sylvania, Virginia, no, 6. 

“ ‘Mr. Madison, in order to prevent doubts whether resignations could be made by 
Senators, or whether they could refuse to accept, moved to strike out the words after 
“vacancies” and insert the words “happening by refusals to accept, resignations, or 
otherwise, maybe supplied by the legislature of the State in the representation of which 
such vacancies shall happen, or by the executive thereof until the next meeting of the 
legislature.” 

‘ ‘ ‘ Mr. Gouverneur Morris. This is absolutely necessary; otherwise, as members 
chosen into the Senate are disqualified from being appointed to any office by section 9 
of this article, it will be in the power of a legislature, by appointing a man a Senator 
against his consent, to deprive the United States of his services. 

‘ ‘ ‘ The motion of Mr. Madison was agreed to, nem con. ’ 

“Thus you will see, Mr. President, that the motive for inserting the words ‘ resigna¬ 
tion or otherwise ’ (which was afterward trimmed down by leaving out on the report of 
the committee on style the words ‘ refusal to accept; ’ so as to leave it only ‘ resignation or 
otherwise’) was distinctly stated by Mr. Madison to be, not that you were to classify a kind 
of vacancies by resignation, but they were put in expressly for the purpose of recognizing 
the power of a Senator to refuse to hold on to the office to which he had been appointed. 
***** * * 

“There never was any question in the debates in the constitutional convention but 
what it was of the highest importance, the very purpose of the Constitution which pro¬ 
vided two Senators from each State, that each State should have all the time, whenever 
this body met, its full representation, not only for the general benefit of all the people, 
but sometimes, as was then thought, for its own security, for the preservation of its own 
rights. 

“ I think, therefore, that this language of Mr. Madison and the action of the conven- 


46 


SENATE ELECTION CASES. 


tion clearly show that the argument of my friend from Missouri is a mistaken one in 
supposing that the introduction of the word ‘ resignation’ was for the purpose of giving 
a class, one of a kind of events that might happen, on the occasion of which the execu¬ 
tive might act and not otherwise; because Mr. Madison states the purpose to he exactly 
the other thing, by putting in one of the words of that kind and then putting in the 
word ‘otherwise,’ to make it clear that a Senator had a right to resign his place, and 
then, in order to carry on the whole operations of the Government according to the Con¬ 
stitution, providing that the executive, if the legislature were not sitting, should fill it 
until the legislature met. 

‘ ‘ There was nothing otherwise in the whole discussion, I repeat, from beginning to end; 
and as the draught originally stood it went to the extent, as every Senator will see, of 
authorizing the executive to fill a vacancy which happened when the legislature itself 
was sitting until it did fill it; and the only motive stated for the change, which they all 
agreed to unanimously, was to put in some one word that would affirm and recognize the 
right of a Senator to resign his place, and then to provide that the State should not go 
without being represented. 

“ Now let us come to the Constitution just for a moment, and I shall have done. The 
legislature shall elect for the term of six years. That is the power given to the legisla¬ 
ture. 

“‘The Senate of the United States shall be composed of two Senators from each State, 
chosen by the legislature thereof, for six years. ’ 

“If you stop there and give it a literal construction, not looking to the purposes of the 
Constitution—to have a full Senate—there would be no power in any State legislature 
in this Union to elect if they allowed the time to go by so that when they elected they 
could not elect under the Constitution for a term of six years. They must elect for a 
shorter term; they must in New Hampshire; they must in the hundred cases almost 
which have happened, when the legislature has failed to make provision in advance, so 
that the election was for six years. Nobody maintains any such proposition, because it 
defeats the object the Constitution had in view, which was that each State should have 
two Senators. Now we come to this language about the executive, and see where we 
are upon the construction of my friend from Missouri: 

“ ‘And if vacancies happen by resignation or otherwise, during the recess of the legis¬ 
lature of any State, the executive thereof may make temporary appointments until the 
next meeting of the legislature, which shall then fill ’— 

“What?— 

“ ‘such vacancies.’ 

‘ ‘ The very ones that are named in the preceding line. Therefore, if the authority of 
an executive is only to fill a vacancy which occurs by resignation or death or expulsion— 
the only three ways that I can think of, because a refusal to accept does not create a va¬ 
cancy, it leaves the old vacancy just where it was—if that is the meaning, then the only 
authority which is left to the legislature is to fill the very vacancy that the governor had 
a right to fill temporarily, and no other. So if the governor of New Hampshire at this 
moment has not the power to fill this vacancy, by the very same sign and on the very 
same words the legislature of New Hampshire when it meets next June cannot fill it 
even, for the Constitution says in language as plain as words can make it that the va¬ 
cancy which the legislature is to fill is ‘ such ’ vacancy, that is, a vacancy which occurs by 
resignation or otherwise, that the executive of the State may fill if it happens during the 
recess of the legislature. We cannot stand on that construction; nobody pretends that 
we can. 

“ By what authority of logic or law is it, then, that we hold that the very same words 
three lines before limit the power of the executive to a particular class of cases, and that 
the very same words three lines afterward expand the power of the legislature to every 
kind of vacancy that may exist? ‘That won’t do,’ to use a phrase of a late eminent 
Senator of this body. We cannot stand on it. 

“ We hear much of the word ‘otherwise.’ If Mr. Madison by proposing, or the con¬ 
vention by adopting, the words ‘resignation or otherwise ’ had meant to classify a series 
of cases like resignation, why would not Mr. Madison, eminent in his knowledge of the 
English language and clear in its expression, have said ‘ likewise ’? That is the adverb 
which would suit the class of cases to which my friend from Missouri refers. ‘ Other 
things happening in like manner ’ is the definition of ‘ likewise, ’ while ‘ otherwise ’ means 
things happening in any other manner than by resignation. That is the dictionary and 
the common sense and the universal knowledge of everybody who knows the English 
language. 

“What was the object of the Constitution? It was that the representation of each 
State should be full, and the Constitution provided two means of keeping it full. First, 
by the legislature for the full term electing in advance before any vacancy occurred! 
That would provide for all that. Then both the executive and the legislature, after a 


HENRY W. BLAIR. 


47 


vacancy did happen at a time when the legislature was not in session, could fill it then 
and there, by providing that instantly the governor in the first instance and the legisla- 
tnre at its next meeting should fill up that vacancy so as to carry out the great objects 
of the Constitution. 

‘‘Wherefore, then, upon any principle of patriotism, or law, or justice, should we en¬ 
deavor by construction to narrow down the franchise of a State, if I may call it that, and 
endeavor to find some class of cases where for some period of time a State shall go unrep¬ 
resented? I am unable to see it; and this report of the debates in the convention shows 
clearly to my mind, and I think even to that of my friend from Missouri and my friend 
from Delaware, that the word ‘ resignation ’ was not put in with the object that my friends 
think it was, but for an entirely different object, as was stated by Mr. Madison himself. 

‘ ‘ This question was fairly debated when the gentlemen on the other side were in a 
majority in this Chamber. Without a party division, gentlemen on both sides, voting 
according to the light they had and not dividing upon party lines, settled this identical 
question. The Senate in sitting upon such a question sits as judges. The Constitution 
says so. We are not defining policies; we are not setting up expediencies; we are not 
carrying on party warfare; we are sitting as the solemn judges sworn to try and determine 
the election and qualification of a gentleman who presents himself to be a member of this 
body. We have come to a decision, just as the Supreme Court of the United States sit¬ 
ting two hundred feet from us comes to a decision in a great variety of cases where the 
judges differ—five one way four another or whatever it may be, a difference of opinion. 
The decision of the court is announced. What would become of that court if the next 
time a similar question came up the whole thing was opened again and the contest was 
gone over repeatedly from year to year and time to time in order to see which should get 
in the ascendency upon all questions? Nothing would be settled, and the court would 
be destroyed, and justice, too, for that matter. 

“How is it different here ? When we have come to a decision, even in a case of doubt, 
having come to it fairly, not in a time of party heat, or by a party vote, when we, after 
full deliberation, have come to a decision which carries out confessedly the objects of the 
Constitution to keep the representation of a State full, should we not stick to it; or are 
we, every time a similar question comes up about elections, to reverse our decisions, retry 
them, hold them of no force, and thus keep this body continually in a turmoil over ques¬ 
tions of representations in it that come from the States ? However doubtful it might 
have been—it did not seem to me so, to be sure, but however doubtful it might appear 
to the minds of gentlemen who voted in the minority—it appears to me that, once de¬ 
cided and decided in favor of representation, it would be better to follow that as an estab¬ 
lished precedent which carries out the objects the Constitution has in view.” 


43 


SENATE ELECTION CASES. 


[Fifty-second Congress—First Session.] 

HORACE CHILTOjST, 
of Texas. 

Mr. Reagan, elected Senator from the State of Texas for the term of six years from the 4th of 
March, 1887, resigned his office, the resignation to take effect on the 10th day of June, 1891. The 
executive of the State of Texas, after the receipt of the resignation of Mr. Reagan, appointed Mr. 
Chilton to till the vacancy occasioned by said resignation, the appointment to take effect on the 10th 
day of June, 1891. The certificate bears date April 25, 1891. December 7, 1891, Mr. Chilton appeared 
and took his seat and on the same day his credentials were referred to the Committee on Privileges 
and Elections. That committee reported January 25, 1892, that— 

“So far as the precedents are concerned, it appears that in three cases persons so appointed have 
been admitted to their seats without question; that Mr. Tracy was admitted and Mr. Lanman rejected, 
where the executive made the appointment in anticipation of a vacancy, there being a discussion in 
the Senate, but no satisfactory evidence of the grounds of the judgment; that in one case, that of Mr. 
Sevier, a person so appointed has been admitted, when the validity of the appointment was ques¬ 
tioned, upon other grounds, without raising this question specifically; and that in modern times the 
practice has been uniform for the State executive to delay appointment until the actual happening 
of the vacancy. * * * that where the power is given to fill vacancies in public offices it has been 
the uniform practice to permit resignations of such offices to be made, to take effect at a future 
day, and to hold that the appointing power is entitled to make the appointment in advance to fill the 
vacancy, to take effect when the resignation becomes operative, unless the language of the constitu¬ 
tional or statute provision under which the authority is exercised forbids such construction; ” that the 
same rule should be applied to the case of resignations and vacancies in the Senate, and that, there¬ 
fore, Mr. Chilton was entitled to retain his seat. 

January 27, 1892, the resolution reported by the committee was agreed to. 

The history of the case here given consists'of a transcript of the journal of the Senate relating to 
it, with th» report of the committee. (Sen. Rep. No. 105, 1st Sess. 52d Cong.) 

Monday, December 7, 1891. 

The Vice-President laid before the Senate the credentials of Horace Chilton, ap¬ 
pointed a Senator by the governor of the State of Texas to fill the vacancy occa¬ 
sioned by the resignation of John H. Reagan in the term expiring March 3, 1893; 
which were read and placed on file. 

On the same day Mr. Chilton appeared. The oath prescribed by law was adminis¬ 
tered to him, and he took his seat. 

On motion by Mr. Hoar, 

Ordered, That the Committee on Privileges and Elections be directed to inquire 
into the circumstances and validity of the appointment of Horace Chilton as a Sen¬ 
ator from the State of Texas. 

[The debate on this order may be found Cong. Record, 1st sess. 52d Cong., n. 3, 
daily edition.] 


Monday, January 25, 1892. 

Mr. Hoar, from the Committee on Privileges and Elections who were instructed 
to inquire into the validity and circumstances of the appointment of Horace Chil¬ 
ton as a Senator from the State of Texas, submitted a report (No. 105) accompanied 
by the following resolution: 

Resolved, That Mr. Horace Chilton, appointed by the executive of the State of 
Texas, on the 25th day of April, 1891, to fill the vacancy occasioned by the resigna¬ 
tion of Hon. John H. Reagan, which had previously been made to take effect on the 
10th day of June, 1891, is entitled to retain his seat. 

REPORT OF THE COMMITTEE. 

[The committee consisted of Messrs. Teller (chairman), Hoar, Mitchell, Chandler 
Higgins, Vance, Pugh, Gray, Turpie.] } 

In the Senate of the United States. 

January 25, 1892.—Ordered to be printed. 

Mr. Hoar, from the Committee on Privileges and Elections, submitted the following 
report: & 

The Committee on Privileges and Elections, who were directed by resolution of 
December 12, 1891, to inquire into and report upon the circumstances and validity 
of the appointment of Mr. Chilton to a seat in the Senate from the State of Texas 
have complied with said resolution and respectfully report: 

Mr. Reagan, elected Senator from the State of Texas for the term of six years from 
the 4th of March, 1887, resigned his office, the resignation to take effect on the 10th 
day of June, 1891. The executive of the State of Texas, on the 25th day of April 
1891, and after the receipt of the resignation of Mr. Reagan, appointed Mr Chilton 
to fill the vacancy occasioned by said resignation. Mr. Chilton's credentials set 
forth the resignation of Mr. Reagan, and further declare— 

“Now, therefore, I, J. S. Hogg, governor of the State of Texas, by virtue of the 


HORACE CHILTON. 


49 


authority vested in me by the Constitution and laws of the United States and of Ihe 
State ot Texas, do hereby appoint Horace Chilton, of Smith County, Texas, Senator 
in the Congress of the United States from the State of Texas, to fill the vacancy 
occasioned by the resignation of the Hon. John S. Reagan. This appointment to 
take effect the 10th day of June, A. D. 1891.” 

The certificate bears date April 25, 1891. 

Mr. Chilton is in all other respects duly qualified to be a Senator from the State of 
Texas. The only question is whether the governor might lawfully make this ap¬ 
pointment before the resignation of Mr. Reagan actually took effect. 

The provision of the Constitution affecting the question is as follows: 

“Art. I, Sec. 3. The Senate of the United States shall be composed of two Sena¬ 
tors from each State, chosen by the legislature thereof for six years, * * * and 

it vacancies happen, by resignation or otherwise, during the recess of the legislature 
of any State, the executive thereof may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancies.” 

A similar state of facts has arisen in a number of instances since the Constitution 
went into operation. 

The term of Uriah Tracy, Senator from Connecticut, expired March 3, 1801; he was 
appointed by the governor of Connecticut February 20, 1801, “ f om ihe 3d of March 
next until the next meeting of the legislature of said State,” the legislature of the 
State not being in session at the time of said appointment or thereafter until after 
said 4th of March. Exception being taken to his credentials, he was admitted to the 
seat by a vote of 13 yeas to 10 nays, and held the seat during tlie special session of 
the Senate, March 4 and 5. 

Joseph Anderson, of Tennessee, was appointed by the executive February 6, 1809, 
to fill the vacancy which would result from the expiration of his term, March 3, 
1809. He held the seat under these credentials during the special session of the 
Senate, March 4 to March 7, 1809. 

John Williams, of Tennessee, was appointed by the executive to fill the vacancy 
which would result from the expiration of his own term, March 3, 1817. Under 
these credentials he held his seat from March 4 to 6, 1817. 

John McPherson Berrien, of Georgia, resigned by letter dated Washington, May 
28, 1852, addressed to the President pro tempore , and read in Senate same date. 
(Globe, first session Thirty-second Congress, p. 1493.) 

Robert M Charlton, liis successor, appeared June 11, 1852, with credentials signed 
by the governor of Georgia, and dated May 18, 1852, to take effect from and after 
May 31, 1852. He was sworn and took his seat without objection. (Senate Journal, 
first session. Thirty-second Congress, p. 468.) 

March 4, 1825, James Lanman, of Connecticut, presented credentials showing an 
appointment made February 8, 1825. by the governor of the State to fill the 
vacancy about to result from the expiration of his term, March 3, 1825. Objec¬ 
tion being made, Mr. Lanman was refused a seat a a vote of 23 to 13. There is 
no historical evidence from which we can determine on what ground the Senate re¬ 
jected Mr. Lanman, whether it was on the ground that the governor could not fill 
a vacancy happening at the beginning of a term, or on the ground that the governor 
could not lawfully make the appointment in anticipation and before a vacancy oc¬ 
curred, and before he could possibly know whether the legislature might not be 
called together before that time. Judge Story (Const., sec. 727, n. 2) says: 

“ In the case of Mr. Lanman, a Senator from Connecticut, a question occurred 
whether the State executive could make an appointment in the recess of the State 
legislature in anticipation of the expiration of the term of office of an existing Sen¬ 
ator. It was decided by the Senate that he could not make such an appointment. 
The facts were that Mr. Lanman’s term as Senator expired on the 3d of March, 1825. 
The President had convoked the Senate to meet on the 4tli of March. The governor 
of Connecticut, in the recess of the legislature (whose session would be in May), on 
the 9th of the preceding February appointed Mr. Lanman as Senator, to sit in the 
Senate after the 3d of March. The Senate by a vote of 23 to 18 decided that the 
appointment could not bo constitutionally made until after the vacancy had actually 
occurred.” 

The following statement appears in the National Intelligencer of Tuesday, March 
8, 1825: 

“An important constitutional question was yesterday decided in the Senate by the 
refusal to admit Mr. Lanman to a seat in the Senate under a commission from the 
governor, granted before the expiration of Mr. Lanman’s late term of service. This 
is the first time this question has been adjudicated under such circumstances as to 
form a precedent; and we presume it may now be considered a settled construction 
of the constitutional provision that a vacancy must have literally ‘happened’ or 
come to pass before an appointment can be made to fill it. The case has once beeu 
questioned and decided differently, but it was in strong party times, all the Federal 
members voting for the member’s taking his seat and all the Democratic members 

S. Doc. 11-4 



50 


SENATE ELECTION CASES. 


against it, under which circumstances the decision has not been much respected an 
a precedent. So far as it was a precedent it is now reversed. ’’ 

Gordon’s Digest of the Laws of the United States, 1827, appendix, note 1 B, states 
the ground of the decision in the same way, hut manifestly bases the statement on 
the authority of the National Intelligencer. 

On the other hand, Mr. Grundy, in his report from the Committee on the Judiciary 
in the case of Mr. Sevier, Senator from the State of Arkansas, who was appointed 
by the governor of Arkansas January 17, 1837, to fill the vacancy which would occur 
on the 3d of March following, by the expiration of Mr. Sevier's previous term, de¬ 
clared that the decision in the Lanman case was on the ground “that the legisla¬ 
ture must provide for all vacancies, which must occur at stated and known periods, 
and that the expiration of a regular term of service is not such a contingency as is 
embraced in the second section of the first article of the Constitution." He distin¬ 
guished Mr. Sevier’s case from the Lanman case by the fact that the time that Mr. 
Sevier was to go out of office was decided by lot, he having been one of the Sena¬ 
tors appointed by the State on its admission. 

Niles’s Register of Friday, March 12, states the question iu regard to the Lanman 
case: 

“The question was whether the failure by the legislature to make a choice of 
Senator constitutes the contingency in which the governor may appoint a Senator.’’ 

Mr. Benton, in his Thirty Years’ View, states that the principal argument against 
the admission of Mr. Lanman was made by Mr. Tazewell, that argument being that 
the word “happen’’ in the Constitution could not apply to a foreseen event, bound 
to occur at a fixed period, and that therefore it was the right of the legislature only 
to fill a vacancy which was foreseen, regular, and certain, and that there was no 
right in the governor to supply that omission. 

Mr. Lanman was not admitted to the seat. There is nothing in the contemporary 
record of the debates or in the resolution which enables us to determine whether the 
majority of the Senate based its action on the ground stated by Mr. Benton to have 
been maintained by Mr. Tazewell, or on the ground stated by Judge Story and by 
the National Intelligencer. The case, therefore, is not an authority on either side 
of the question. So that it is impossible to determine whether the Senate meant to 
overrule the Tracy case on one ground or the other. 

On the other hand, an examination of the very numerous cases where the execu¬ 
tives of States have made appointments when the legislature was not in session 
shows that in a great many of them the executive has postponed action, where the 
resignations were made to take effect at a future time or where the previous term 
had expired by its own limitation, until after the vacancy existed. In all proba¬ 
bility this postponement was caused by a belief on the part of the executive that he 
had no authority to provide for filling a vacancy until it actually occurred, or at any 
rate, that the question was so far in doubt that it would be unsafe to make the 
appointment in anticipation. 

So far, then, as the precedents are concerned, it appears that in three cases per¬ 
sons so appointed have been admitted to their seats without question; that Mr. 
Tracy was admitted and Mr. Lanman rejected, where the executive made the appoint¬ 
ment in anticipation of a vacancy, there being a discussion in the Senate, but no 
satisfactory evidence of the grounds of the judgment; that in one case, that of Mr. 
Sevier, a person so appointed has been admitted, when the validity of the appoint¬ 
ment was questioned, upon other grounds, without raising this question specifically; 
and that in modern times, the practice has been uniform for the State executive to 
delay appointment until the actual happening of the vacancy. 

Under these circumstances, it seems to us that the Senate may now determine the 
question, unhampered by any precedents of its own. 

We suppose that where the power is given to fill vacancies in public offices, it has 
been the uniform practice to permit resignations of such offices to be made, to take 
effect at a future day, and to hold that the appointing power is entitled to make the 
appointment in advance to fill the vacancy, to take effect when the resignation 
becomes operative, unless the language of the constitutional or statute provision 
under which the authority is exercised forbids such construction. 

The Constitution of the United States, Article n, section 2, in providing for the 
appointing power, enacts: 

“The President shall have power to fill all vacancies that may happen during the 
recess of the Senate, by granting commissions which shall expire at the end of their 
next session.’’ 

We believe it has been the uniform practice of the Executive from the beginning 
to accept resignations which are to take eflect in the future, and to make appoint¬ 
ments, also to take eflect in the future, to fill them. We suppose that a like prac¬ 
tice also prevails in regard to the heads of Departments in the exercise of the 
appointing power conferred by law upon them. The language of the provision of 
the Constitution under consideration, that “ if vacancies happen by resignation or 
otherwise during the recess of the legislature of any State, the executive thereof 


HORACE CHILTON. 


51 


may make temporary appointments until the next meeting of the legislature,” seems 
to ns to admit easily oi a like construction, We do not suppose that it was the inten¬ 
tion of the framers of the Constitution to establish different rules for these two cases. 

The Senate has recently, after full consideration, determined that the constitu¬ 
tional provision that the Senate shall choose a president pro tempore in the absence 
of the Vice-President permits the choice of an officer in advance of the actual occur¬ 
rence of the contingency referred to, who may take the chair whenever the Vice- 
President may bo absent, until the Senate otherwise order. In all these cases, 
including that which we are now considering, the important consideration is that it 
must have been the purpose of the framers of the Constitution, as it is clearly for 
the public interest, that the office as far as possible should always be filled. This 
consideration applies with peculiar force to the office of Senator. We should be 
very unwilling to establish a construction of the Constitution which would make it 
certain that in no case of the resignation of a Senator, however necessary that 
resignation might be, there should be a succession without a considerable interval. 

This would bear with peculiar hardship upon States remote from the seat of 
government, and might determine the policy of the country in great emergencies 
and in matters peculiarly affecting particular States, when such States were but 
partially represented, or possibly not represented at all. The tendency of the 
opinion of the Senate, as evidenced by its more recent decisions, has been more and 
more to lean to a construction which, as far as possible, secures that the seats in the 
Senate should be filled without any interruption in the representation of the State. 
Thus, in the case of Mr. Bell and Mr. Blair, Senators from the State of New Hamp¬ 
shire, it has been held that the executive might till the vacancy occurring at the 
beginning of the constitutional term in consequence of the failure or the inability of 
the legislature to elect a Senator for that term, in compliance with the statute of 
1866 (Revised Statutes, sections 14 and 19), in spite of very weighty and influential 
opinions to the contrary. 

So it has been held and is now the settled construction, that if a vacancy occur 
during the recess of the Senate, and a person be regularly nominated to the Senate 
at its next session to fill it, and be rejected, and the Senate adjourn without the 
office being filled, the President is entitled to make a new appointment in the next 
vacation. So, if the officer died during the session, and his death be not known 
until after the adjournment, as is said by the Attorney-General Taney, in his able 
report (Opinions of Attorneys General, Vol. 2, p. 523): 

“It is admitted by everyone that the President may appoint in such cases, and 
the practice of the Government has continually conformed to that construction.” 

“It was the intention of the Constitution,” Mr. Taney further says, “that the 
offices created by law and necessary to carry out the operations of i he Government 
should always be full, or, at all events, that the vacancy should not be a protracted 
one.” (See also, to the same effect, the opinion of William Wirt, 1 Op. Att’ys- 
Gen., 631.) 

It has been suggested that if this construction be established it will be in the 
power of the governor of the State to provide by appointment for the filling of 
future vacancies long before they occur, and, therefore, the will of the people of 
the State, as it exists at or near the time of filling the vacancy, fail of being carried 
into effect. But the instances must necessarily be very rare indeed where the 
vacancy can be anticipated beforehand under circumstances which will create such 
temptation to the execu tive. Against that, as against many other evils which are possi¬ 
ble under a popular government, as under other governments, the protection in 
general must be in the character and integrity of the persons clothed with high 
public office. 

We, therefore, are of the opinion that Mr. Chilton was lawfully appointed by the 
executive of the State of Texas to the seat which he now holds, and recommend 
the adoption of the following resolution: 

Resolved, That Mr. Horace Chilton, appointed by the executive of the State of 
Texas on the 25th day of April, 1891, to fill the vacancy occasioned by the sesigna- 
tion of the Hon. John H. Reagan, which had previously been made, to take effect 
on the 10th day of June, 1891, is entitled to retain his seat. 

Wednesday, January 27, 1892. 

On motion by Mr. Hoar, 

The Senate proceeded to consider the report of the Committee on Privileges and 
Elections on the circumstances and validity of the appointment of Mr. Horace 
Chilton as a Senator from the State of Texas; and 

The resolution reported by the committee was agreed to, as follows: 

Resolved, That Mr. Horace Chilton, appointed by the executive of the State of 
Texas, on the 25th day of April, 1891, to till the vacancy occasioned by the Resigna¬ 
tion of the Hon. John H. Reagan, which had previously been made to take effect on 
the 10th day of June, 1891, is entitled to retain his seat. 

[The debate will be found in Cong. Record, 1st sess. 52d Cong., p. 635, daily edi¬ 
tion.] 


52 


SENATE ELECTION CASES. 


[Special session of the Senate, March4, 1893, and first session Fifty-third Congress.] 

LEE MANTLE, of Montana. 


The term of Wilbur S. Sanders, a Senator from the State of Montana, expired March 3, 1893. The 
legislature of said State, which was elected next preceding the expiration of the term of Mr. Sanders, 
adjourned March 3, 1893, after a full session, without electing a Senator. On the 4th day of March, 
1893, John E. Richards, the governor of Montana, appointed Lee Mantle to fill the vacancy caused by 
the expiration of the term of Mr. Sanders. On the 9th day of March, 1893, the Senate of the United 
States having been convened in special session, the credentials of Mr. Mantle were presented and 
ordered to lie on the table, and were afterwards referred to the Committee on Privileges and Elec¬ 
tions. March 27, 1893, the committee submitted a report, which was chiefly devoted to a discussion 
of the question of the right of the executive of a State to appoint a Senator to represent the State in 
the Congress of the United States at the expiration of the term of a Senator in case the legislature 
having authority to choose a successor to the Senator whose term so expires fails to do so. The con¬ 
clusion of the committee was in favor of the right of the executive of the State to appoint under such 
circumstances. The report was accompanied by a resolution declaring Mr. Mantle entitled to be 
admitted to a seat as a Senator from the State of Montana. 

From the views expressed in this report a minority of the committee dissented, affirming the view 
that where the legislature of a State has had an opportunity to elect a Senator and has failed to do 
so, it is not thereafter competent for the executive of the State to appoint a person to the United 
States Senate to fill the vacancy caused by the expiration of the term of a Senator. The views of the 
minority were also accompanied by a resolution that Mr. Mantle was not entitled totake his seat in 
the Senate as a Senator from the State of Montana. 

The question raised by the report of the committee and the resolutions thus submitted was debated 
in the Senate at considerable length, and on the 28th day of August, 1893, it was decided by a vote of 
32 to 29 that Mr. Mantle was not entitled to a seat in the Senate. 

The history of the case here given consists of a statement of the proceedings in the Senate in rela¬ 
tion thereto as published in the Congressional Record, the report of the Committee on Privileges and 
Elections, the views of the minority of the committee, a statement of the days on which the debate 
occurred with a reference to the record of the same, a portion of the remarks of Senators in such 
debate, the vote on the substitute for the resolution submitted by the committee, the record of the 
proceedings on the motion to reconsider such vote, and the proceedings on the final adoption of the 
substitute for the resolution submitted by the committee. 


PROCEEDINGS IN THE SENATE. 

Thursday, March 9, 1893. 

Mr. Teller presented the credentials of Hon. Lee Mantle, who had been appointed 
a Senator from the State of Montana by the governor of that State. He asked that 
the credentials be read and lie on the table until the Committee on Privileges and 
Elections should be formed, and then be referred to that committee. The cre¬ 
dentials were read as follows: 

“Whereas a vacancy hath happened in the office of Senator in the Congress of 
the United States from the State of Montana by the expiration of the official term of 
Wilbur S. Saunders, which said vacancy happened at noon on the 4th day of March, 
1893, which said date was during a recess of the legislature of said State, which said 
recess still continues and said vacancy still exists; and 

“Whereas by section 3 of the Constitution of the United States it is provided as to 
Senators in the Congress of the United States ‘if vacancies happen by resignation or 
otherwise during the recess of the legislature of any State the executive thereof may 
make temporary appointments until the next meeting of the legislature,’ and the 
exigency therein contemplated hath occurred. 

“Now, therefore, I, John E. Richards, governor of the State of Montana, by virtue 
of the power in me vested, have appointed and do hereby appoint Lee Mantle to be 
a Senator in the Congress of the United States from the State of Montana to fill such 
vacancy until the next meeting of the legislature of the State of Montana. 

“In witness whereof I have hereunto set my hand and caused the seal of the State 
of Montana to be hereto affixed, at Helena, in said State, at 12.30 o’clock on the 4tli 
day of March, in the year of our Lord 1893, and of the Independence of the United 
States of America the one hundred and seventeenth. 

“[seal.] “J. E. Richards, Governor. 

“By the governor: 

“L. Rotwitt, Secretary of State.” 

After a brief discussion the credentials were ordered to lie on the table 

(Cong. Rec., vol. 25, p. 5.) 


LEE MAJNTLE, OF MONTANA. 


53 


Monday, March 27, 1893. 

Mr. Hoar, from the Committee on Privileges and Elections, to whom was referred 
the credentials of Lee Mantle, claiming a seat in the Senate from the State of Mon¬ 
tana, submitted a report with a resolution accompanying the same, which resolution 
he asked to have read. The resolution was read as follows: 

‘ ‘ Resolved, That Lee Mantle is entitled to be admitted to a seat as a Senator from 
the State of Montana.” 

At the request of Mr. Vance and Mr. Hoar the report, with the accompanying 
resolution, was ordered to lie on the table to be printed with the views of the minor¬ 
ity, when submitted. (Cong. Rec., vol. 25, pp. 32 and 33.) 


REPORT OF THE COMMITTEE. 

[The committee consisted of Messrs. Vance (chairman), Gray, Pugh, Turpie, 
Palmer, Hoar, Mitchell of Oregon, Chandler, and Higgins.] 

In the Senate of the United States. 

March 27, 1893.—Ordered to be printed. 


Mr. Hoar, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report to accompany Senate resolution relative to admitting Lee Mantle, of 
Montana, to a seat as a Senator: 

The Committee on Privileges and Elections, to whom were referred the credentials 
of Lee Mantle, claiming a seat in the Senate from the State of Montana, respectfully 
report: 

The term of Mr. Sanders, Senator from Montana, ended March 3, 1893. The legis¬ 
lature of said State, who were, under Revised Statutes, sections 14, 15, entitled to 
elect his successor, had adjourned without an election. Thereupon the governor of 
Montana, on the 4th day of March, 1893, appointed Mr. Mantle to hold the office of 
Senator until the next meeting of the legislature. 

We think said appointment valid. 

The provisions of the Constitution under which the question arises are as follows 
(Art. I, sec. 3): 

“The Senate of the United States shall be composed of two Senators from each 
State, chosen by the legislature thereof, for six years; and each Senator shall have 
one vote. 

‘ ‘ Immediately after they shall have assembled in consequence of the first election, 
they shall be divided as equally as may be into three classes. The seats of the Sena¬ 
tors of the first class shall be vacated at the expiration of the second year, of the 
second class at the expiration of the fourth year, and of the third class at the expi¬ 
ration of the sixth year, so that one third may be chosen every second year; and if 
vacancies happen by resignation, or otherwise, during the recess of the legislature 
of any State, the executive thereof may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancies.” 

In the construction of every contract the leading purpose which it was intended 
to accomplish is to be kept constantly in mind. This purpose is to be appealed 
to to supply all omissions, to reconcile all inconsistencies, to give a meaning 
to all ambiguities, and even, in clear cases, to compel a construction opposed 
sometimes to a clear meaning of particular words and phrases. Human language is 
imperfect and human intellects differ in respect to the meaning which they attach 
to language of ordinary clearness. Without this principle of construction it would 
be impossible for men to deal with each other with any security or to be held justly 
and reasonably to any obligation whatever. 

This principle is of tenfold more importance in a construction of a constitution of 
government. Without it the grossest injustice and oppression must be wrought under 
the fundamental law of the State, to be followed inevitably in their turn by revolu¬ 
tion, disorder, and anarchy. “Never forget,” said Chief Justice Marshall in 
McCulloch v. Maryland, “that it is a constitution we are construing.” What is the 
great and leading purpose which the provision now under consideration was designed 
to accomplish? It is that the Senate of the United States shall be full, always full. 
Each State was to be represented there by two Senators. No State was ever to be 
deprived of its equal vote in the Senate except by its own consent to a change in the 
Constitution itself. This consideration was held to be of infinitely more importance 
than the question whether the appointment should be made by the legislature or by 
the executive. Indeed, the latter plan had many advocates in the convention itself. 


54 


SENATE ELECTION CASES. 


The executive is supposed to be the foremost citizen of the State. He at that time 
made all appointments of the States’ officers, both judicial and administrative, except 
a few which the people reserved to themselves, and a still smaller number which 
were committed to the legislatures. It can not be doubted that if the question had 
been submitted to the men who framed the Constitution or to the people who 
adopted it of a choice between a vacancy in the Senate and an appointment for lim¬ 
ited periods by the executive, the answer in favor of the latter arrangement would 

have been unanimous. . , 

The equality of the State representation m the Senate, which can only be secured 
by keeping both seats full, is of first importance.. But the presence of two Senators 
instead of one is a consideration of very great importance indeed. There are few 
members of that body whose party feeling would carry them so far as to induce them 
to prefer the absence of a colleague to the presence of one of opposite political faith. 
There are a thousand occasions when the power of consulting with an associate devoted 
to the interests of the same community and conversant with its wishes is of inesti¬ 
mable importance. The author of the Christian religion, when he sent forth his 
apostles to convert mankind, sent them two and two. 

The possibility of vacancies by refusal or resignation of the office of Senator, as well 
as by the ordinary contingencies of human life, seemed much more important to our 
fathers than is does to us. There was not such eager desire for public office in their 
generation as is now unhappily prevalent. If you look over the list of early Senators 
you will be surprised at the number of resignations. If you read the biography of 
the men of that day, you will be surprised at the number of men to whom the oppor¬ 
tunity of serving in this body was open who refused it. Massachusetts before the 
Revolution made provision by law for imposing a fine upon persons who declined to 
serve in the legislature. 

Mr. Webster, in his great debate with Mr. Calhoun, considered very seriously 
and at some length the possibility that the States might refuse to continue their 
representation here. He appealed to the sense of duty of the members of the State 
governments and to the obligations resting upon their consciences from their oaths to 
support the Constitution of the United States. He says: 

“The Constitution utters its behests in the name and by authority of the people, 
and it does not exact from States any plighted public faith to maintain it. On the 
contrary, it makes its own preservation depend on individual duty and individual 
obligation. Sir, the States can not omit to appoint Senators and electors. It is not 
a matter resting in State discretion or State pleasure. The Constitution has taken 
better care of its own preservation. It lays its hand on individual conscience and 
individual duty. It incapacitates any man to sit in the legislature of a State who 
shall not have first taken his solemn oath to support the Constitution of the United 
States as they are to support their own State constitution. Nay, sir, they are as sol¬ 
emnly sworn to support it as we ourselves are, who are members of Congress. 

“No member of a State legislature can refuse to proceed, at the proper time, to 
elect Senators to Congress, or to provide for the choice of electors of President and 
Vice-President any more than the members of this Senate can refuse, when the 
appointed day arrives, to meet the members of the other House to count the votes 
for those officers and ascertain who are chosen. In both cases the duty binds, and 
with equal strength, the conscience of the individual member, and it is imposed on 
all by an oath in the same words. Let it then never be said, sir, that it is a matter 
of discretion with the States whether they will continue the Government or break it 
up by refusing to appoint Senators and to elect electors. They have no discretion 
in the matter. The members of their legislatures can not avoid (loing either, so often 
as the time arrives, without a direct violation of their duty and their oaths; such a 
violation as would break up any other government.” 

We therefore begin our inquiry with the primal and controlling mandate of the 
Constitution resting upon us, that this body should be kept full, and that the separate 
representation therein of each State is the most important and unchangeable single 
obligation which the instrument creates. 

It is said that it can not have been the purpose of the Constitution that the seats 
in the Senate are to be kept full regardless of the authority by whom the appoint¬ 
ment is to be made; and this is undoubtedly true. The Senators appointed to repre¬ 
sent the sovereignty of a State were of course to be appointed by some authority that 
should itself duly and adequately represent that sovereignty. The executive power 
of the State clearly is such an authority. The executive of “the State was, when the 
Constitution was framed, intrusted with the appointment of many important State 
officers, judicial and executive. 

As has been said, many persons favored the plan of conferring the appointment of 
Senators wholly upon the State executives, who in those days, almost without excep- 


LEE MANTLE, OF MONTANA. 


55 


tion, appointed the judicial and military officers of the State. It can not be doubted, 
as we have already said, that if the alternative had been directly submitted to the 
framers of the Constitution, of the continuance of a vacancy or that it should be filled 
by appointment by the State executive whenever and however it happened, they 
would, without hesitation, have preferred the latter. There can be no considerable 
reason given for supposing if a vacancy happen at the end of a term by death, resig¬ 
nation, or otherwise, that they desired it to be filled by the executive, the legislature 
not being in session, and that the same desire would not apply with equal force to a 
vacancy happening at the beginning of a term, the legislature not being in session, 
and having for any reason failed to make an appointment. 

It is said that a failure by the legislature to elect a Senator is a refusal by the State 
to be represented. The answer to that is twofold: 

First. That the Constitution of the United States did not mean to permit a State to 
refuse to be represented, and this constitutional purpose has been carried out as far 
as possible by the statute of 1866. 

Second. The inability of the majority of a State legislature, where there is more 
than one candidate, to agree upon a Senator is by no means equivalent to a refusal 
of a State to elect one. The election, until the recent statute of 1866, was ordinarily 
made by two separate bodies, each counting one and each requiring a majority for 
its action. The majority in one branch might consider the election of a particular 
person or some one entertaining like political views most essential to the public wel¬ 
fare, while a majority in the other branch might as conscientiously hold to the belief 
that the election of such a person or one of like opinions would be a great public dis¬ 
aster. Both bodies might be equally eager to elect, but in the case supposed an 
agreement becomes a moral impossibility. The same condition of things may fre¬ 
quently take place, and has frequently taken place since the method of electing by 
joint ballot was established in States where there are more than two political parties, 
every one of them zealously holding to its own political opinions. The only solution 
of this difficulty is the power to appoint by the executive. 

We set out, then, in the argument with the clear, unquestionable purpose of the 
Constitution to keep the Senate full, and the fact that every other purpose of the 
Constitution relating to such matters is accomplished by holding that the power in 
question resides in the governor. 

It is next to be observed that the language of the Constitution is quite as well 
suited to confer the power upon the governor of appointing to a vacancy occurring at 
the beginning of a term, or to a vacancy which began to exist when a legislature was 
actually in session and continued after the adjournment of the legislature, as any 
language likely to be used. The language of the Constitution is: “If vacancies hap¬ 
pen by resignation, or otherwise, during the recess of the legislature of any State the 
executive thereof may make temporary appointments until the next meeting of the 
legislature, which shall then fill such vacancies.” Now an ordinary and well- 
established meaning of the word “happen” is “take place,” “occur,” “come to 
pass.” It is frequently applied, according to the best usage, to things into which 
the element of accident or uncertainty does not in the least enter. The definition of 
the Century Dictionary, edited by one of our most accomplished philologists, Pro¬ 
fessor Whitney, is as follows: “To occur by chance; occur unexpectedly or unac¬ 
countably; in general, to occur; take place. ” The definition of the Imperial Diction¬ 
ary is as follows: “To chance; to be or to be brought about unexpectedly or by 
* chance; to take place; to occur; as, I happened to be there; this happens often.” 

“There shall no evil happen to the just.” Proverbs xii, 31. 

Johnson’s: “To fallout; to chance; to come to pass .” “Bring forth your strong 
reasons * * * and shew us what shall happen .” Isaiah xli, 21, 22. 

“Say not I have sinned, and what harm hath happened unto me?” Eccles. v, 4. 

Starmouth: “To come by chance; to fall out; to befall; to light upon; to occur ” 

Webster: 1. “To come by chance; to come without previous expectation; to fall 
out.” 2. “To take place; to occur.” “They talked together of these things which 
had happened .” Luke xxiv, 14. 

Worcester: 1. “To fall out; to chance; to come to pass; to take place; to befall; to 
betide; to occur .” “Shew us what shall happen.” Isaiah xli, 22. 

There are plenty of familiar instances of this use of the word “ happen”—if the 
Fourth of July happen on Sunday, if it happen to be high tide—so that, as it seems 
to us, the words of the Constitution convey to an ordinary apprehension the simple 
meaning if there he a vacancy, by resignation or otherwise, the executive may make 
temporary appointments, etc. 

It is noticeable that the word “vacancies” is in the plural. “The seats shall be 
vacated, ’ ’ etc. ‘ ‘ If vacancies happen by resignation or otherwise during the recess of 
the legislature of any State the executive may make temporary appointments ”— not 
a single appointment—“until the next meeting of the legislature, which shall then 


56 


SENATE ELECTION CASES. 



the Constitution, may be provided for by temporary appointments. 

Is it not the very subtlety of refinement, when the Constitution declares that seats 
shall be “vacated” in two, four, and six years and that vacancies shall be filled by 
executive appointment until the legislature meets, to hold that the words “vacate” 
and “vacancies” have a totally different meaning? 

We have, then, a constitutional purpose which can only be completely effected by 
the construction which we contend should be given. We have also language in the 
Constitution adapted, without any forced or strained construction, to effect or accom¬ 
plish that purpose. 

We find next that where the same language is used in other places in the Constitu¬ 
tion the settled construction is that upon which we now insist. Section 2, in providing 
for the House of Representatives, declares that: “When vacancies happen in the 
representation from any State, the executive authority thereof shall issue writs of 
election to fill such vacancies.” Is there any question, when under the old rule it 
required elections by the people to be by majorities, and there was a failure to choose 
a Representative by reason that there were three candidates, neither of which had a 
majority over the other two, that it was the duty and prerogative of the executive 
authority of the State, under this clause of the Constitution, to issue a writ of election 
to fill the vacancy? 

Article 2, section 2, of the Constitution, in providing for the appointment of execu¬ 
tive officers, declares: “The President shall have the power to fill up all vacancies 
that may happen during the recess of the Senate by granting commissions which 
shall expire at the end of their next session.” 

It is well settled, in accordance with the opinion of Attorneys-General Wirt, Taney, 
Legare, Mason, Cushing, Bates, Stanberry, Evarts, and Devens, that where an office 
becomes vacant during the session of the Senate, and the Senate adjourns before it 
has been filled, that a vacancy happens during the recess of the Senate, within the 
meaning of this clause of the Constitution; and that the President’s power to fill the 
vacancy comes into life. 

Upon this construction of the Constitution the late Mr. Justice David Davis received 
a commission and sat upon the bench of the Supreme Court of the United States by 
virtue thereof. 

Mr. Attorney-General Taney, in his opinion, cites the opinion of President John 
Quincy Adams to the same effect as his own. Indeed, all the opinions of the 
Attorneys-General before referred to were acted upon by the Presidents of the United 
States to whose administration they belonged, constituting together a vast weight of 
constitutional authority. All these opinions are cited in a very able discussion of 
this question by Attorney-General Devens. (Opins. Attys. Gen., vol. 16, p. 522.) 

In the case of the State ex rel. Yanceys. Hyde (121 Ind., 20), the act of the 
general assembly of Indiana having created an office to be filled by a director elected 
by the legislature, it was held, Berkshire, J., giving the opinion, that so much of the 
act as provided for the appointment of the officer by the legislature was unconstitu¬ 
tional and void, the appointment to office not being a legislative function—the Con¬ 
stitution vesting the appointing power in the executive. 

Second. That the appointment of such officer by the legislature being void, there 
was a vacancy in the office at the beginning of the term, which the governor was 
competent to fill, under the powers given him’ by the Constitution to fill vacancies 
in public offices. 

The following is the provision of the constitution of Indiana above referred to, sec¬ 
tion 18, Article V: 

“When, during the recess of the general assembly, a vacancy shall happen in any 
office the appointment to which is vested in the general assembly or when at any 



In the case of the State v. Gorby (122 Ind., 17), it was held as follows: 

V\ here an office is created by law, to be filled immediately, no legitimate mode 
being provided for filling the same, it is vacant on the taking effect of the law, and 
the governor may fill such vacancy by appointment. So, the legislature having 
created the office of director of the department of geology, an administrative State 
office, but havmg no power to fill it, the office was vacant and the governor had the 
right to fill the vacancy until a general election by the people.” 


LEE MANTLE, OF MONTANA. 57 

We have, then, first, a clear and controlling constitutional purpose that every State 
shall be at all times represented in the Senate by two Senators. 

Second. A declaration by the Constitution that that purpose is to be accomplished 
by the authority of the executive of the State when the legislature has failed to elect 
a Senator. 

Third. The use of language in the Constitution which, according to good and estab¬ 
lished usage, is sufficient in its ordinary meaning to confer this power on the executive 
in the case of a vacancy existing for any cause whatever, and at any time whatever 
while the legislature is not sitting, whether contingent or otherwise. 

Fourth. Where like phraseology is used in the Constitution in regard to other offices 
it has been uniformly held to have the meaning we attribute to it here. 

Fifth. The construction given by the very able supreme court of Indiana to lan¬ 
guage substantially identical. 

Sixth. The Senate has for many years past invariably recognized the controlling 
obligation of this purpose of the Constitution, even where the language is doubtful or 
where a literal construction would lead to another result. 

(a) Where the Constitution says, “If vacancies happen by resignation or other¬ 
wise during the recess of the legislature of any State, the executive thereof may make 
temporary appointments until the next meeting of the legislature, which shall then 
fill such vacancies,” it is held that a Senator so appointed by the executive may sit 
until the legislature elects a successor or adjourns without such election, in order that 
the Senate may be full. (See the case of Mr. Winthrop; Taft, Senate Election Cases, 10.) 

( b ) Where the Constitution says, “That if vacancies happen, etc.,” it is held that 
the executive may appoint in advance of such vacancy, that the Senate may be full. 
(Case of Mr. Chisholm, Fifty-second Congress; case of Mr. Pasco, Fifty-third Congress.) 

(c) Where the Constitution says, “If vacancies happen, etc.,” this is held to cover 
the case of a vacancy by expiration of a term certain and to permit the executive to 
appoint for the beginning of the following term in case the legislature has not elected, 
that the Senate may be full. (Case of Mr. Bell; Taft, Senate Election Cases, 26; case of 
Mr. Blair, ib., 36; case of Mr. Marston.) 

( d ) Where the Constitution says that “ the Senate shall choose * * * a Presi¬ 
dent pro tempore in the absence of the Vice-President,” it has been held that the 
Senate may elect such officer in advance of such absence, that the office may be full. 
(Election of Mr. Ingalls; election of Mr. Manderson; election of Mr. Harris, March, 
1893.) 

( e ) Where the Constitution says, speaking of the appointment of civil officers, 
“ The President shall have power to fill up all vacancies that may happen during 
the recess of the Senate by granting commissions which shall expire at the end of 
their next session,” it is held that if a vacancy happen when the Senate is in ses¬ 
sion and continue after its adjournment, the President may fill up such vacancy, 
that the office may be full. 

(/) Where the Constitution says, “When vacancies happen in the representation 
from any State, the executive thereof shall issue writs of election to fill such vacan¬ 
cies,” it is held that if there should be a vacancy at the beginning of a Representa¬ 
tive’s term, by failure to elect under the majority rule, or by death, or refusal to 
serve, or otherwise, the executive of the State may issue such writ of election, that 
the office may be full. 

It has, moreover, been expressly held by the Senate, in the case of Mr. Sevier, of 
Arkansas—determined in 1837—that where the legislature of Arkansas, being in 
session when Mr. Sevier’s term ended, adjourned without electing his successor, the 
governor could appoint. The only distinction between that case and the present 
one is that Mr. Sevier, being a Senator elected by the State upon its admission, drew 
by lot a term which expired during the session of the legislature ami the legislature 
adjourned before the expiration of his term had come to its knowledge. 

The case of Lanman, Taft, Senate Election Cases, page 5, has been distinctly over¬ 
ruled by the Senate, either by the Bell case and those which followed it, or the 
cases of Chisholm and Pasco above cited. 

It is shown by an unbroken line of decisions, with one possible but doubtful 
exception, that the Senate has maintained the authority of the executive to appoint 
to a vacancy which occurs at the beginning of a Senatorial term by reason of the 
failure to elect. We do not think it necessary to insist upon the importance of an 
adherence by this high court to precedents in judicial matters such as the title to its 
seats. Unless the Senate, when acting judicially, adhere to its precedents, the rights 
of the States must depend upon the changing political majorities in this Chamber. 
It seems quite as important that the construction given by the Senate to the Con¬ 
stitution in proceedings of a judicial nature should be inflexibly adhered to, except 
in cases of clear error, in spite of the grave and serious temptation which must beset 
this tribunal beyond all others to depart from them in times of high political excite- 


58 


SENATE ELECTION CASES. 


ment. To do justice and declare the law and the fact, without respect of persons 
or parties, will be the peculiar glory of a tribunal which itself oonsis-ts of^ partiess 
deeply interested in the determination. We therefore recommend the adoption of 

That Lee Mantle is entitled to be admitted to a seat as a Senator from 
the State of Montana. 

Appendix A. 


The question has frequently arisen for judgment in the Senate. By a line of deci¬ 
sions unbroken, with one possible exception, it has been held that the governor oi a 
State is authorized to fill a vacancy existing at the beginning of a Senatorial term. 

April 27,1797, William Cocke was appointed a Senator from the State of Tennessee 
by the governor, his term having expired on the 3d of the preceding month. On 
the 15th of May, 1797, he presented his credentials, and was admitted to take the 
oath of office without objection or debate. 

March 3,1801, the seat of Uriah Tracy, of Connecticut, became vacant by the expi¬ 
ration of his term of office. On the 20th of February, 1801, the governor of Connecti¬ 
cut reappointed him a Senator. Objection being raised to his credentials, he was 
admitted to the oath by a vote of yeas 13, nays 10. 

William Hindman, of Maryland, was afterwards, on the next day, admitted to the 
oath on like credentials, without objection. 

John Condit, of New Jersey, November 14, 1803, appointed a Senator from New 
Jersey to fill the vacancy at the beginning of the term, was admitted to take the oath. 
Mr. Condit’s credentials had been presented October 17, previous. 

March 4,1809, Samuel Smith, of Maryland, appointed on that day by the governor 
of his State to fill the vacancy caused by the expiration of his own term, was admit¬ 
ted to his seat and sworn. 

March 4, 1809, Joseph Anderson, of Tennessee, took his seat by virtue of an 
appointment from the governor of that State. 

May 24,1813, Charles Cutts, of New Hampshire, appointed by the executive to fill 
the vacancy during the recess of the legislature, was, without question, admitted to 
take the oath. This vacancy was at the beginning of the term. 

March 4,1817, John Williams, of Tennessee, appointed a Senator by the executive 
of the State, to hold said appointment until the meeting of the next session of the 
legislature, w T as admitted. His credentials were filed on the 10th of the preceding 
February. 

March 24, 1825, James Lanman, of Connecticut, presented his credentials of his 
appointment by the governor of that State, “to take effect immediately after the 3d 
of March, 1825, and to hold the seat until the next meeting of the legislature.” Mr. 
Lanman was refused the seat by a vote of 23 to 13. The case was referred to a select 
committee, who report the facts, but state neither reason nor conclusion. The com¬ 
mittee say they have looked into the journals of the Senate, and that the cases of 
Cocke, Tracv, Anderson, and Williams are the only analogous cases they could find. 
There is a brief sketch of the debate in Niles’s Register, volume 28, page 32, but no 
statement of the reason on which any Senator proceeded. There is no historical evi¬ 
dence from w hich we can determine whether the Senate rejected Mr. Lanman on the 
ground that the governor could not fill a vacancy happening at the beginning of the 
term, or on the ground that the governor could not lawfully make the appointment in 
anticipation, before the vacancy occurred, and before he could possibly know whether 
the legislature might be called together before that time. All the precedents which 
the committee cite, except that of Mr. Cocke, were cases where the appointment was 
made not w hen the vacancy happened in the recess of the legislature, but only when 
the governor thought it might happen. In the case of Cocke the date of the appoint¬ 
ment is not given in the journals, although, in fact, it was after the vacancy. The 
committee do not cite the case of Hindman, Smith, or Condit, nor the then recent 
case of Cutts, in deciding which some Senators then in office took part, where the 
appointments were made after the vacancy existed. There is, therefore, nothing to 
show whether the Senate meant to overrule all the precedents, some of which were 
not brought to its attention, or only so many of them as recognized the right of the 
executive to appoint when a vacancy had not happened. 

Judge Story (Constitution, sec. 727, note 2) says: “ In the case of Mr. Lanman, a 
Senator from Connecticut, a question occurred whether the State executive could 
make an appointment in the recess of the State legislature in anticipation of the expi¬ 
ration of the term of office of an existing Senator. It was decided by the Senate 
that he could not make such an appointment. The facts were that Mr. Lanman’s 
term of service as Senator expired on the 3d of March, 1825. The President had 
convoked the Senate to meet on the 4th of March. The governor of Connecticut in 


LEE MANTLE, OF MONTANA. 


59 


the recess of the legislature (whose session would be in May), on the 9th of the pre¬ 
ceding February appointed Mr. Lanman as Senator, to sit in the Senate after the 3d 
of March. The Senate, by a vote of 23 to 18, decided that the appointment could 
not be constitutionally made until after the vacancy had actually occurred.” (See 
Gordon’s Digest of the Laws of the United States, 1827; Appendix, note 1, B.) 

In regard to the same case, the National Intelligencer of March 8, 1825, says in an 
editorial note: 

‘ ‘ An important constitutional question was yesterday decided in the Senate by the 
refusal to admit Mr. Lanman to a seat in the Senate under a commission from the 
governor granted before the expiration of Mr. Lanman’s late term of service. This 
is the first time the question lias been adjudicated under such circumstances as to 
form a precedent; and we presume it may now be considered as a settled construc¬ 
tion of the constitutional provision that a vacancy must have literally ‘happened,’ 
or come to pass, before an appointment can be made to fill it.” 

The State of Arkansas was admitted to the Union in 1836. In October, 1836, the 
legislature of that state elected Ambrose IT. Sevier and William S. Fulton Senators. 
On the allotment of the Arkansas Senators to their respective classes, as required by 
the third section of the first article of the Constitution, Mr. Sevier was placed in the 
class of Senators whose term of service expired on the 3d of March, 1837. The legis¬ 
lature of Arkansas had no opportunity to fill the vacancy, and were not in session 
after the result of the allotment was known in that State. January 17, 1837, the 
governor of Arkansas appointed Mr. Sevier to fill the vacancy which would take place 
on the 3d of March. When Mr. Sevier’s credentials were presented at the winter 
session, Mr. Webster suggested a doubt of the validity of the appointment, in which 
Mr. Sevier himself concurred. At the March session the credentials were referred to 
the Committee on the Judiciary. Mr. Grundy, from that committee, reported in favor 
of Mr. Sevier’s admission, and he was admitted. 

Mr. Grundy’s report states that it is not intended by the committee to call in ques¬ 
tion the correctness of the decison in the Lanman case; that that case proceeded on 
the ground ‘ ‘ that the legislature should provide for all vacancies which must occur at 
stated and known periods, and that the expiration of a regular term of service is not 
such a contingency as is embraced in the second section of the first article of the 
Constitution.” 

The report further says: “The case now under consideration is wholly different in 
principle. The time when Mr. Seiver was to go out of office was decided by lot.” 

From this review of the judgments of the Senate it appears that in every case in 
which a Senator has been appointed by the executive after the happening of a vacancy 
by the expiration of a term without an election of a successor by the legislature the 
person so appointed has been admitted to his seat. There is no indication that the 
Senate ever denied or doubted the correctness of this construction of the Constitu¬ 
tion, except the unsupported statement of Mr. Grundy of the ground of a decision 
made twelve years before, a statement which nothing in the journal of the debates con¬ 
firms, and which is opposed to the understanding of Judge Story and the contempo¬ 
raneous article in the Intelligencer. 

The second section of the first article of the Constitution provides: “ When vacan¬ 
cies happen in the representation from any State, the executive authority thereof shall 
issue writs of election to fill such vacancies.” In 1837 the law of Mississippi fixed the 
time for the election of Representatives in November. The President having called 
a special session of Congress to meet in September, the governor of Mississippi, on 
the 13th of June, issued writs for an election in July for two Representatives to 
Congress to fill said vacancy until superseded by the members to be elected at the next 
regular election in November. 

At this July election Messrs. Gholson and Clairborne were elected and claimed the 
seats. Their claim was referred to a committee, of which Andrew Buchanan was 
chairman, who reported in favor of their right to seats for the full term. They say 
in their report: 

“The Constitution authorizes the executive power of the States respectively to 
order the filling of all vacancies which have actually happened, in the mode therein 
pointed out, no matter how the vacancy may have happened, whether by death, 
resignation, or expiration of the term of members previous to the election of their 
successors.” 

In the debate, John Quincy Adams said he believed, in relation to offices, that 
every one happens to be vacant which is not full, and that, he believed, was the 
meaning and sense of the Constitution, whether the vacancy occurred from casualty, 
the regular course of events, expiration of term, or other cause. 

The claimants were admitted to their seats. In November following Messrs. Pren¬ 
tiss and Wood were elected for the same term. At the next December session the 
resolution declaring Gholson and Clairborne elected was rescinded, but a resolution 


60 


SENATE ELECTION CASES. 


was also adopted by the casting vote of Speaker James Iv. Polk that Prentiss and 
Wood were not members. So that no inference can properly be drawn from that 
case, and it is of no value, except so far as weight may be attached to the opinions ot 
John Quincy Adams and Janies K. Polk, both favoring the construction of the Con¬ 
stitution for which we contend. . . 

Appended to the report in the Mississippi case are opinions of two of the most 
distinguished Attorney s-General of the United States, Roger B. Taney and M illiam 
Wirt, in which they discuss the meaning of the phrase “vacancies that may happen 
during the recess” with reference to the power of the President to fill an office which 
is vacant in the recess, because the Senate adjourned without acting on a nomina¬ 
tion, the original vacancy having happened during the session. Both these eminent 
jurists agree that the term “happen” is equivalent to “happen to exist,” “if it come 
to pass that there be a vacancy.” Mr. Taney says: “The Constitution was formed 
for practical purposes, and a construction that defeats the very object of the grant of 
power can not be a true one. It was the intention of the Constitution that the offices 
created by law should always be full.” 

We submit, therefore, that the natural and ordinary meaning of the language 
employed, the purpose which the framers of the Constitution meant to accomplish, 
the unbroken current of decisions in like cases, and the uniform construction given 
to the same language when used elsewhere in the Constitution and in legislation in 
like cases, concur in supporting the interpretation which establishes Mr. Bell’s claim. 
The office of Senator is a continuous office. When the Senator is duly elected by 
the legislature beforehand no vacancy exists within the meaning of the Constitution. 
His taking the oath of office relates back to the beginning of the term and preserves 
the continuousness of the succession. He is when on his way to take the oath 
deemed to be a Senator and privileged from arrest. A vacancy happens, and only 
happens, when the legislature has failed to make due election or the person chosen 
declines the appointment or when the office once filled is vacated by death, resigna¬ 
tion, or otherwise. 

But if we adopt the narrowest possible construction imputed by Mr. Grundy in 
the Sevier report, the decision in the case of Lanman, the doctrine of the Sevier 
decision itself, is enough for the purpose of this case. If the failure of the Arkansas 
legislature to be in session after the expiration of Mr. Sevier’s term was decided by 
lot made the vacancy contingent in the narrowest sense of that term, so that the 
governor could appoint, certainly the fact that there is no legislature in the State 
able to act constitutes such a contingency. Whether it so happens that the person 
once chosen is unable to remain in office, or it so happens that the legislature can 
not meet and choose, the contingency of a vacancy in the office has occurred. The 
six months at the end of the term are no more important than six months at its 
beginning. The Constitution makes equally careful provision for either. 

VIEWS OF THE MINORITY. 

The undersigned, a minority of the Committee on Privileges and Elections, not 
being able to agree with the opinion of the majority, beg leave to set forth their 
reasons for their disagreement, as follows: 

Fortunately, there is no disagreement as to the facts in the case of Mr. Mantle, 
appointed a Senator by the governor of the State of Montana. The legislature of 
that State failed to elect, after a full session, a successor to the Hon. W. F. Sanders, 
whose term expired March 4, 1893. The session of the legislature of that State 
expired on the 3d of March and it adjourned sine die. The credentials of Mr. Mantle 
are dated March 4, and certify to his appointment to fill the vacancy which resulted 
from the expiration of the term of Mr. Sanders. 

Substantially the same facts, with the change of names snd dates, attend the 
appearing here as Senator of the Hon. A. C. Beckwith, of Wyoming, and, with the 
exception of a single circumstance, the same facts appear in the case of the Hon. 
John B. Allen, of Washington, who was appointed his own successor by the governor 
of that State under date of the 10th day of March, 1893. The fact that distinguishes 
this case from the other two is that the legislature of Washington was in session on 
the 4th of March, when Mr. Allen’s term expired, and remained in session until the 
9th of the same month, when it adjoured sine die, without having elected his suc¬ 
cessor. Unless, therefore, this circumstance should make a difference in the law 
of the case, they may all three be considered under one head. 

,^ e question in each case is, could the governor of the State appoint a Senator at 
the beginning of a new term, the legislature being in session and refusing or failing 
to elect? The Constitution of the United States pertaining to this subject Article I 
section 3, provides: ’ ’ 

“The Senate of the United States shall be composed of two Senators from each 


LEE MANTLE, OF MONTANA. 61 

State chosen by the legislature thereof, for six years; and each Senator shall have 
one vote. 

“Immediately after they shall be assembled, in consequence of the first election, 
they shall be divided as equally as may be into three classes. The seats of Senators 
of the first class shall be vacated at the expiration of the second year, of the second 
class at. the expiration of the fourth year, and of the third class at the expiration of 
the sixth year, so that one-third may be chosen every second year; and if vacancies 
happen, bv resignation or otherwise, during the recess of the legislature of any State, 
the executive thereof may make temporary appointments until the next meeting of 
the legislature, which shall then fill such vacancies.” 

In connection therewith and supplementary thereto, may be quoted the provisions 
of the act of 1866, which we conceive necessary to be considered in the same exami¬ 
nation. 

This act of Congress makes clear and gives constuction to two points not entirely 
clear by the express terms of the Constitution, namely, it provides what particular 
legislature shall elect a successor to one whose term is about to expire; and, secondly, 
it provides that a legislature in session, when a vacancy occurs, shall fill that vacancy. 
And this construction of the Constitution has been universally followed ever since. 

Its provisions are as follows: 

Section 14 of that act says: 

“The legislature of each State which is chosen next preceding the expiration of 
the time for which any Senator was elected to represent said State in Congress, shall, 
on the second Tuesday after the meeting and organization thereof, proceed to elect a 
Senator in Congress, etc.” 

Section 16 of the same act provides that— 

“Whenever on the meeting of the legislature of any State a vacancy shall exist in 
the representation of said State in the Senate, the legislature shall proceed on the 
second Tuesday after meeting and organization to fill such vacancy in the manner 
described in the preceding section for the election of a Senator for a full term.” 

We submit that according to the ordinary acceptation of this language, and by all 
the well-established rules of construction as laid down by the courts, its plain and 
obvious meaning can not be mistaken and must be obeyed. There are only two 
ways by which a citizen can be constituted a Senator of the United States. One, and 
the primary one, is by the election of the legislatures of the several States—no one 
doubts that. 

The original terms of the Senators of any State must begin by being chosen by the 
legislature. The other way of becoming a Senator is by appointment of the execu¬ 
tive to fill a vacancy which has happened by resignation or otherwise during a recess 
of the legislature, and which appointments it is provided may be made until the said 
legislature shall next assemble. These two methods of constituting a Senator were 
well described by Mr. Pettit in his report on the Phelphs case, as primary and con¬ 
tingent; and as there were two ways of constituting Senators, so there were, obviously, 
but two ways of creating vacancies; one, the primary way, by the expiration of the con¬ 
stitutional term for which the Senator was elected, the other the accidental, or unfore¬ 
seen, or unexpected “happening” of some casualty to or upon the incumbent, such 
as death before his term ended, resignation, expulsion, disqualification, or any other 
cause that should take him out of the office to which he was elected. 

Now, the Constitution having made specific and express provision for filling the 
original term of each Senator by the legislature, there remained nothing else to pro¬ 
vide for except those accidental interruptions of a term which should “happen” 
to create a vacancy. The manner of this happening and the kind of vacancy 
or of the cause which might create such a vacancy is signified by the example 
given, as by “resignation or otherwise.” The rule of legal interpretation undoubt¬ 
edly is that where specific words are used, followed by more general words, the 
general words are qualified by the specific words. It is thus stated by Willis, jus¬ 
tice, in Fenwick v. Schmaltz (L. R. 3, C. P. 315, cited in Endlich, p. 568): 

“A general word which follows particular and specific words of the same nature as 
itself takes its meaning from them and is presumed to be restricted to the same genus 
as those words; or, in other words, as comprehending only things of the same kind 
as those designated by them, unless, of course, there is something to show that a wider 
sense was intended.” 

Also see the language of Lord Cairns in Ashbury Company v. Rich (L. R. 7, H. L. 
653, cited by Sutherland, p. 352). The memorandum of the company said that it 
was formed for the purpose, among others, of carrying on the business of mechanical 
engineers and general contractors. A question arising, what was the scope of the 
concluding words, “general contractors,” Lord Cairns said: 

“Upon all ordinary principles of construction, those words must be referred to the 
part of the sentence which immediately precedes them; therefore the term ‘general 


62 


SENATE ELECTION CASES. 


contractors’ would be referred to that which goes immediately before, and would 
indicate the making, generally, of contracts connected with the business of mechan¬ 
ical engineers. If these words were not to be interpreted as I have suggested, the 
consequence would be that they would stand absolutely without any limit of any kind. 

In the Countess of Rothes v. Krikaldy Water Works Commissioners (L. R. 7 App., 
Cass 706), the doctrine was announced that “ when a specific enumeration concludes 
with a general term, it is held to be limited to things of the same kind. It is 
restricted to the same genus as the things enumerated.” (See Sutherland Statutory 
Construction, passim; Endlich on the Interpretation of Statutes, passim , and the 
cases there cited.) The books are full of them. There is no learning more familiar. 
To the same effect is the case of Ham v. The State of Missouri, in 18 Howard, page 
126. The plaintiff in error was indicted for a trespass on land belonging to the State 
of Missouri, which had been granted in 1820 to that State for school purposes, being 
every sixteenth section of certain boundaries of land. Ham pleaded that by another 
act in 1811 the Congress of the United States had reserved and set apart from entry 
and sale certain lands against which there were outstanding claims until said claims 
had been settled. The terms of the grant to the State of Missouri were of every six¬ 
teenth section, “ unless the same had been sold or otherwise disposed of.” Ham’s 
counsel argued that this reservation from public entry and sale was equivalent 
to having been “ otherwise disposed of,” but the court held to the contrary, in the 
following language: 

“The language and plain import of the sixth section of the act of the 3d of March, 
1820, confer a clear and positive and unconditional donation of the sixteenth section 
in every township; and, when these have been sold or otherwise disposed of, other 
and equivalent lands are granted. Sale, necessarily signifying a legal sale by a compe¬ 
tent authority, is a disposion, final and irrevocable, of the land; The phrase, ‘ or 
otherwise disposed of,’ must signify some disposition of the property equally efficient 
and equally incompatible with any right of the State, present or potential, as dedu- 
cible from the act of 1820 and the ordinance of the same.” 

Here is an unequivocal avowal by the highest court in the United States of the 
existence of the rule, that the general term must be restricted and governed by the 
particular term, the particular term here being “sale.” The court declared that 
the disposition “otherwise” must be equivalent and equally efficient in all its legal 
effects to a sale. 

The case of the Thames Insurance Company v. Hamilton was an action upon a 
policy providing for insurance against all the perils of the sea, and of ‘ ‘ all other 
perils, losses, and misfortunes that have or shall come to the hurt, detriment, or 
damage of the aforesaid subject-matter of this insurance or any part thereof.” The 
damage alleged was to a donkey engine, which was used in pumping water into the 
main boiler, and which burst, owing to a valve being closed which ought to have been 
open. 

In the course of the judgment Chancellor Hallsbury said: 

“If understood in their widest sense the words are wide enough to include the 
injury; but two rules, now fairly established as a part of our law, may be considered 
as limiting these words. One is that words, however general, may be limited with 
reference to the subject-matter in relation to wUich they are used. The other is 
that general w r ords may be restricted to the same genus as the specific words that 
precede them. (See Sutherland on Statutory Construction, p. 357.)” 

It is not necessary to give more illustrations from the authorities in regard to this 
rule. Now, apply it to the clause of the Constitution in question. 

The method of choosing Senators for a full term had already been provided for by 
the preceding clause of the section; there remained no other necessity of providing 
for the filling of Senators’ seats except in case of an accidental happening, and this is 
provided for by the words, “if vacancies shall happen by resignation or otherwise 
during the recess of the legislature,” etc. Plainly and unmistakably the manner in 
which such vacancies were to happen are exemplified by the word “resignation,” 
and the addition of the general words, “or otherwise,” referred only to the unenu¬ 
merated methods of a similar kind, by which such accidental vacancy might occur. 
If we apply the ordinary rules of construction there is no escape from this; but, if, as 
contended, the word “ otherwise ” embraces any possible vacancy, then it would be 
without any limitation or qualification whatever, and the word “resignation” would 
be eliminated and destroyed. It may be added also, without irreverence, that our 
respect for the learning and common sense of the framers of our Constitution w r ould 
be likewise destroyed. If they had intended to provide that the governors should 
fill every vacancy that could possibly happen during the recess of the legislature, then 
they w T ould have said so, as they did in the case of a similar provision for filling 
vacancies in the House which happen in the representation of any State, as provided 
in the fourth clause of section 2. 


LEE MANTLE, OF MONTANA. 


63 


But it is said that the word “ happen ” does not necessarily refer to a casualty or 
an unexpected event; that in our language we make use of that word indifferently 
for “ occur” “ or come to pass.” It is respectfully submitted that this is not true. 
An event that is provided for by law to take place at stated periods known to all 
men is not correctly spoken of by people of ordinary education as “happening,” 
because there is no element of uncertainty in it. The examples given of statutes 
providing for certain things to be done on a certain day of a month “ if it happen not 
on a Sunday,” etc., will not bear out the assertion. It is true that it might be known 
to all men who are astronomers, and would sit down and make calculations that a cer¬ 
tain date in a certain year would fall on Sunday; but the great masses of mankind do 
not think of it in that way. They speak as though the thing were absolutely uncer¬ 
tain. But we do not say, for instance, that any natural event, which all men know 
and look for, did “ happen” to come at the time on which it was expected; we do 
not say that the sun “ happened ” to rise on a certain day; wo do not say that water 
“ happens ” to flow down a descent by the force of gravity. That is a known law of 
nature. We do not say that Christmas “ happens ” to come on the 25th of Decem¬ 
ber—by the universal consent of Christendom that event comes on that day without 
peradventure. We do not say that a note “ happens ” to fail due on the day which 
is specified in the instrument, though it no doubt is often said that it “happened ” 
to fall due when the maker did not have the money to pay it. 

We do not say that Congress happened to meet on the first Monday in December— 
that is the law. We do not say that a Senator’s term in this body happened to 
expire on the 3d day of March, for that is the law written in the Constitution. We 
do say, per contra, that Senator A. B. “happened” to die before his term had 
expired; we do say that Senator C. D. “happened” to resign before his term had 
expired; we do say that Senator E. F. “happened ” to become disqualified by accept¬ 
ing an incompatible office or to be expelled before his term had expired, and so on. 
In the common acceptation of mankind these phrases are used and understood without 
controversy. So obvious is their meaning that those who contend for the power of 
the governor to appoint for any vacancy whatever occurring in the recess of the leg¬ 
islature of a State, are compelled to resort to the argument ab inconvienentl They 
say that the paramount purpose of the Constitution is to keep the Senate full, and 
they dwell upon the importance of the constitutional provision that no State, without 
its consent, shall be deprived of its equal suffrage in the Senate. 

If they mean by this that the purpose of the Constitution is to keep the Senate full 
by any and all means whatsoever, the statement is not correct. That the Constitu¬ 
tion expresses a strong or controlling purpose to keep the representation of each 
State full in the Senate is manifested by its specific provisions for filling regular 
terms both at the beginning and as they legally expire, and by providing for any 
accidental or unforeseen casualties by which seats thus filled might become vacant 
otherwise than by legal expiration of terms. Further than this no man can say that 
the Constitution makers intended to go. It can not for a moment be supposed that 
they contemplated or intended to provide for a case where either the legislature or 
the governor of a State should wantonly or with any other motive or for any reason 
either refuse or fail to perform their duty in the creation of Senators. This would 
have been to express a doubt and want of faith in the perpetuity of the structure 
which they were building. On the contrary, it is just and reasonable to suppose 
that, having invested each State with certain specific rights as to representation in 
this body, and imposed upon them the duty of exercising these rights in a certain 
specified way, patriotism and self-interest would combine to secure the enjoyment 
of these rights more effectually than any provision which they could possibly insert 
in the Constitution. 

The paramount purpose of the Constitution, if there be such a thing expressed in 
any one particular paragraph, we should say, was to keep the Senate full of Senators 
legally placed there according to the terms of this instrument; to establish a govern¬ 
ment in accordance with the provisions it lays down. It is illogical in the extreme 
to contend that the method of supplying a casual vacancy in the Senate contains the 
controlling purpose of the Constitution. If the frequency and emphasis of the words 
are considered, much stronger would be the argument that the election of Senators 
by the legislatures of the States is the controlling purpose. Look at the language: 
“The Senate of the United States shall be composed of two Senators from each State, 
chosen by the legislature thereof”—not appointed by governors or anyone else— 
“immediately after they shall be assembled in consequence of the first election”— not 
first appointment—“after dividing them into three” classes—the language is—“so 
that one-third may be chosen”—not appointed—“ every two years. And if vacan¬ 
cies happen by resignation, etc., the executive may make temporary appointment 
until the next meeting of the legislature, which shall then fill such vacancies.” 

The power of the executive is, “may make temporary appointments,” while the 


64 


SENATE ELECTION CASES. 


injunction to the legislature is “shall be chosen”—the one is mandatory and the 
other is permissive; and yet they say the permissive power controls and is para¬ 
mount to the mandatory power of the legislature to elect. This language clearly is 
only intended to give State executives a right to keep the Senate full by appoint¬ 
ments, and nothing more. . . , , , ,,, , , 

Again the next clause says, “that the Senator shall be an inhabitant of that State 
for which he shall be chosen”—not appointed.. In section 4, it is provided again, 

‘ ‘ The times and places and manner of holding elections for Senators and .Repre¬ 
sentatives shall be prescribed in each State by the legislature thereof; but the Con¬ 
gress may at any time by law make or alter such regulations, except as to the places 
of choosing Senators.” 

In every mention in the Constitution of the creation of Senators, but one, an elec¬ 
tion is contemplated. . 

Nor is the argument that no State without its consent shall be deprived of its suf¬ 
frage in the Senate of any greater force. It almost excites a smile to suggest the idea 
that a State is deprived by the action of Congress, in any possible way, of her equal 
suffrage in the Senate if her legislature refuses to elect a Senator and send him here, 
or if the governor, in the case of a failure of the legislature to elect, shall refuse to 
appoint a Senator and send him here. Both of these things have happened, and 
nine States at different times have been for one or more years with but one Senator 
in these Halls, and no harm happened to State or nation. If a man refuses to go 
to the ballot box and vote it can hardly be said with any show of propriety that he is 
“deprived” of his suffrage. He deprives himself. Much is said of the danger and 
inconvenience arising from the fact that a State would have but one ^Senator for a 
short period in this body. It is the opinion of the undersigned, deliberately and 
solemnly given, that the danger arising in such a manner is not for a moment to.be 
compared with the danger which comes from any departure from the Constitution 
of the country, in any form, or upon any pretext whatsoever. We know too well, that 
every one of these becomes the basis for a new and wider departure and a justifica¬ 
tion for any and all violations of the organic law. 

We can not but regard as monstrous the doctrine that, while in construing a simple 
instrument between individuals concerning property, you must give effect to every 
word, if possible, and make general terms to be limited and controlled by specific 
words, yet, in construing this great contract, this fundamental law, upon the observ¬ 
ance of which shall depend the perpetuity of a great nation, such construction may 
be given as shall defy all the canons of the courts and destroy specific words of plain 
and obvious meaning. No stab more vital could be inflicted upon the very exist¬ 
ence of the American Union. Nor can we tolerate the idea that we are in any case 
at liberty to compel a construction of the Constitution in a manner opposed to a 
clear meaning of particular words and phrases. It is fraught with the elements of 
tyranny and of destruction to the Government established by that Constitution, and 
can be justified by no supposed necessity whatever. 

The spectacle here presented of three States, at the same time, and in the same 
manner, and by the same or similar combinations, refusing to perform their consti¬ 
tutional duty of electing Senators to this body, for the purpose of throwing the 
appointment into the hands of the executive under the vicious precedents which 
have lately been established, is little short of a scandal upon constitutional govern¬ 
ment. It enables us to see with what ease a few ambitious and aspiring men in 
every legislature, by a combination with the executive, can defeat the will of the 
people and the plain purpose of the Constitution. 

In the case of Mr. Allen the vacancy existed while the legislature was in session. 
In the case of the others, Mr. Mantle and Mr. Beckwith, the legislatures of their 
States adjourned the day before the vacancies occurred, despite their sworn duty, 
both under the Constitution and the act of 1866, to provide for filling those vacan¬ 
cies during their sessions. 

If legislatures can thus be permitted to tamper with the Constitution and laws of 
their country and be rewarded with success and impunity, we respectfully submit 
that a great blow has been inflicted upon the good order and legal government of 
our country and the permanency of its institutions. 

In the discussion of this question in the debates hitherto much importance has 
been attached, to the meaning of the word “happen.” We deem it impossible to 
escape its original and plain meaning. That meaning is to be found in the dictiona- 
r \ e j ^ our ^ on & ue * According to Webster it is the intransitive verb based upon the 
old Saxon noun hap, defined to be “that which happens or comes suddenly or unex¬ 
pectedly; also, “ the manner of occurrence or taking place; chance; fortune; acci¬ 
dent; casual event; fate; lot.” The verb “to happen,” from the noun hap, defined 
by same, first, to come by chance; to come without previous expectation; to fall 
out; second, to take place; to occur,” and the example given under the second 


LEE MANTLE, OF MONTANA. 65 

definition is, “ They talked together of all these things which had happened.’’ (St. 
Luke.) 

To the same effect is the Century Dictionary, the noun “ hap ” being defined to be 
“chance; luck; fortune,” and the intransitive verb “happen” means by same, first, 
“to occur by chance; occur unexpectedly or unaccountably; in general, to occur; 
take place;” second meaning, “to chance; be by chance or unexpectedly; as, he 
happened to be at home.” 

The Imperial Dictionary says of the noun “ hap ” that it means “ that which takes 
place or comes suddenly or unexpectedly; ” also, the manner of occurrence or taking 
place; chance; fortune; accident; casual event; vicissitude; and the intransitive verb 
“ happen,” by this authority, “ to happen; to befall; to come by chance.” 

As apropos to this word it may be well to refer to another rule of construction, to 
the effect that the intent of a legislature is to be found in the ordinary meaning of 
the words of the statute. (Woodworth v. State, 26 Ohio.) 

It is thus clear by authority what is a matter of common knowledge, that the 
primary and ordinary signification of the word “happen” relates to that which is 
unexpected or accidental, and that its use as synonymous with “take place” or 
‘ ‘ occur ’ ’ is secondary. 

The accepted canons of construction require that unless there is an indication in 
the text construed that the meaning of a word therein used is other than the ordinary 
one, it must be taken to have been used in its ordinary sense. 

The majority insist that the word “ happen ” in the clause of the Constitution in 
question is used in its secondary meaning of “take place” or “occur.” 

But in this the undersigned can not concur. They feel constrained, inasmuch as 
the Constitution itself has not made clear that the word is used in any other than its 
ordinary sense, to attribute to it that ordinary meaning. That meaning of the word 
happen controls the scope of the word “otherwise,” so that the clause in question 
must be read according to the ordinary meaning of this word “happen,” thus: “And 
if vacancies unexpectedly occur by resignation, or otherwise, during the recess of 
the legislature of any State,” etc. It is obvious in this reading that the word other¬ 
wise refers to vacancies that unexpectedly occur. 

In applying these definitions and legal rules to the clause we are discussing, if the 
words “or otherwise” are not limited to vacancies occurring in a manner similar 
to a “resignation” of a Senator, it w r ould seem impossible to make an idea plain by 
the use of language. It can not refer to a vacancy occurring by the regular expira¬ 
tion of a term. That suggestion is excluded by the previous mention in special 
words of those terms, provision in like special w r ords being made for filling them; 
therefore the next clause is independent and entirely disconnected from that pre¬ 
ceding it, inasmuch as it refers and must refer to the filling of a vacancy happening 
otherwise than by the expiration of a regular term. The enlarging or general words 
used by the authorities must relate to the same kind of things to w hich the special 
words relate. They must be ejusdem generis , as the law says. Now the only possible 
kindred betw r een the accidental and the regular termination of Senatorial seat is that 
they are both vacancies , but they are not ejusdem generis , in that the one is a vacancy 
created by law r and the other is a vacancy created by accident, and are entirely differ¬ 
ent in their legal effects. The one is a basis for the exercise of executive power; the 
other is not. 

Apropos to the argument of the controlling purpose of the Constitution being to 
keep the Senate full—suppose the governor of a new State should appoint two Sena- 
ators to begin with and send them here with their credentials, alleging that there 
was a vacancy, and with or without an apology for the absence of a legislative elec¬ 
tion? Must we receive them because of the importance of keeping the Senate full; 
or because wdthout its consent we must not deprive a State of its equal suffrage in the 
Senate? Surely it w ill not be so contended. It has been decided, and we believe at 
the present moment the contrary is not contended by anyone, that if the governor 
of a State has exercised his power of appointment until the meeting of the legisla¬ 
ture, and the legislature has assembled and adjourned without filling that vacancy, 
that the governor can not again exercise the appointing power. 

This was decided in the case of Jared Williams, from New Hampshire, 1854, and 
so far as we can learn has never been overruled. 

Mr. Edmunds admitted this in the discussion of the Bell case. Mr. Wadleigh 
admitted this in the discussion of Mr. Cameron’s bill, which w r as intended to cure 
the defect caused by the adoption of the new constitution of New Hampshire, which 
prevented an election of a Senator at the proper time. • 

Mr. Blaine admitted it in the same discussion. Mr. Edmunds’s language is as 
follows: • 

‘ ‘ The Constitution is looking to have each State represented in this body all the time, 
and by some method that the Constitution provides and looks to to do it, and, there- 

S. Doc. 11-5 



66 


SENATE ELECTION CASES. 


fore, when it uses the word “otherwise,” it uses the comprehensive term, so that, n 
whatever way the State ceases to have opportunity to express its full voice here in 
this council of States, it shall be filled temporarily by the governor until the legisla¬ 
ture, the chief and sovereign power in the State, at its next meeting ran have an 
opportunity to fill it. Then, if they fail in their constitutional duty, the Constitution 
as it was made has not thought fit to give the governor any other power. That is the 
state of the case.” 

If this be true what becomes of the argument!* . . , 

The long and the short of it, as was stated by Mr. Carpenter in the discussion of 
the Bell case, is simply “that the Constitution of the Union guaranties to every State 
the right of perpetual representation in this body.” There is no other guaranty on 
the part of the Constitution toward a State representation in the Senate. If the State 
neglect or refuse to avail itself of that right there is no obligation on the part of the 
Senate or of any other authority to force or compel by forced construction or any 
other means to insure that perpetual representation than simply this plain provision 
of the Constitution. We can neither compel a legislature to elect, nor a governor to 
appoint. In a government based on the consent of the governed something must 
necessarily be left to the patriotism and common sense of those to whom the govern¬ 
ment is intrusted. 

The precedents set by this body upon the subject of executive appointments are 
quite numerous. The oldest case was that of Kensey Johns, of the State of Delaware. 
He was appointed by the governor to fill a vacancy occasioned by the resignation of 
George Read, in December, 1793. The legislature met in January, 1794, and 
adjourned in February of the same year without having elected a successor to Mr. 
Read. Mr. Johns was appointed by the governor on the 19th of March to fill said 
vacancy. He was refused his seat on the ground that since the occurrence of the 
vacancy a session of the legislature had intervened. The vote for the resolution 
refusing him his seat was 20 ayes to 7 nays. Among those participating in this early 
case in 1794 were several Senators who had taken part in the formation of the Con¬ 
stitution, as we are informed. 

The next case was that of Mr. Tracy, from Connecticut, whose term expired 
March 3, 1801, who was appointed his own successor by the governor of the State on 
the 20th of February, 1801, and appeared to take his seat on March the 4th follow¬ 
ing. He was admitted by a vote of 13 yeas to 10 nays. It appears that there was 
little or no debate. From 1799 to 1817 it appears that several Senators, by appoint¬ 
ment, were sw T orn in without objection. These, though fairly citable for the purpose 
of showing the opinion of the Senate at that time, can not properly be cited as adjudi¬ 
cated cases. This admitting, without objection, such Senators, received its death 
blow in 1814 by the discussion of Mr. Gore’s resolution concerning the President’s 
power to fill original vacancies. Although they were never finally acted on, the 
light thrown on the subject no doubt influenced the subsequent action of the Senate. 

The next, and perhaps the leading case, which was fully and ably discussed and 
solemnly decided, was that of James Lanman, of Connecticut, in 1825. Mr. Lan- 
man’s term expired March 3, 1825; on March 4 of the same year he was appointed 
by the governor to fill the vacancy. His credentials were dated February 8, but he 
appeared to take his seat at an extra session of the Senate convened by the President 
on March 4. His credentials upon objection were referred to a special committee, 
Senators Eaton, Edwards, and Tazewell, which committee reported the facts and 
precedents, but divided as to conclusions, the majority of the committee, Eaton and 
Tazew r ell, favoring the rejection of Lanman, the minority, Edwards, favoring his 
admission to a seat. Whereupon Edwards submitted, not as the report of the com¬ 
mittee, but on his own account, the following resolution: 

“ Resolved , That Hon. James Lanman, appointed a Senator by the governor of the 
State of Connecticut, be now admitted to the oath required by the Constitution.” 

And the vote being taken, after discussion, the resolution w r as rejected, yeas, 18; 
nays, 23; the majority of the select committee, Eaton and Tazewell, voting in the 
negative. 


The case of Ambrose H. Sevier, from the State of Arkansas, came up at a special 
session of the Senate in March, 1837. The State of Arkansas had been admitted to 
the Union in June, 1836, and in October of the same year the legislature elected 
Ambrose H. Sevier and William S. Fulton Senators. On the allotment of these 
Senators to their respective class, as required by the Constitution, Mr. Sevier was 
placed in the class whose term expired on the 3d of March, 1837. The legislature of 
Arkansas, though in session at the time, had no opportunity to fill the vacancy, 
having adjourned before the result of the allotment at Washington became known 
to them. Mr. Sevier was appointed to succeed himself and fill the vacancy occa¬ 
sioned by drawing that lot. His credentials were dated January 17,1837, and at the 


LEE MANTLE, OF MONTANA. 


67 


special session in March, after the occurrence of the vacancy, his credentials were 
referred to the Committee on Judiciary for special report. 

That committee decided that his case came fairly within the provisions of the Con¬ 
stitution contained in the third section of the first article, which declares “that a 
vacancy happened by resignation or otherwise,’’ and reported a resolution that he 
be permitted to take the oath required by the Constitution, which resolution was 
adopted—yeas, 26; nays, 19. The committee consisted of Messrs. Grundy, Chit¬ 
tenden, Morris, King of Georgia, and Wall, and they based their report upon the 
ground that the vacancy was occasioned by the lot which assigned the short term to 
Mr. Sevier, and, therefore, was a happening within the meaning of the Constitution. 
They reaffirmed and acquiesced in the doctrine laid down in the Lanman case, and 
declared that by making this decision they did not call its correctness in question. 
The principle asserted in that case is, said the committee, “that the legislature of 
the State, by making elections themselves, shall provide for all vacancies which may 
occur at stated and known periods, and that the expiration of a regular term of 
service is not such a contingency as is embraced in the second section of the first 
article of the Constitution.” 

This decision of the Lanman case was acquiesced in for about fifty years, being 
reaffirmed again and again. So well was it recognized and obeyed that in nine dif¬ 
ferent States between the years 1843 and 1859 the governors thereof refused to 
appoint Senators, the legislature having failed to elect. 

In 1879 the case of Charles H. Bell from New Hampshire came up for considera¬ 
tion. Mr. Bell was appointed by the governor to fill a vacancy happening during 
the recess of the legislature by the expiration of Mr. Wadleigh’s term on March 3, 
1879. By a change in the constitution of the State of New Hampshire, the date of 
the election of the legislature for that State, and of its subsequent assembling, was 
so changed as to render it impossible for the legislature last preceding the election of 
the Senator to fill the vacancy occasioned by the expiration of Mr. Wadleigh’s term, 
as required by the act of 1866, thus leaving a vacancy between the beginning of the 
new term and the assembling of the legislature which had been chosen next preced¬ 
ing the commencement of said term. Mr. Bell was appointed to fill this vacancy. 
After discussion he was admitted, but the undersigned contend that this was not an 
overruling of the long-established and acquiesced-in principle of the Lanman case, 
because the legislature of New Hampshire had not had the opportunity to elect a 
Senator. By the act of 1866 the outgoing legislature could not make the election 
because it was not the one elected next preceding the vacancy. The legislature elect 
could not choose the Senator because, by the constitution of New Hampshire, it 
could not assemble until June following the vacancy; so the legislature was in no 
fault. 

The case of Blair was on all fours with Bell, being appointed by the governor of 
New Hampshire under precisely the same circumstances, and, of course, followed 
the decision in the Bell case. It may be said, therefore, generally, that the first 
well-debated and solemnly decided case by those who were near to the framers of 
the Constitution, took decided ground against the power of the governor to appoint, 
where it was possible for the legislature to perform its duty; and with a few excep¬ 
tions between the year 1800 and 1817, the acquiescence in the doctrine established 
by the case of Kensey Johns was unbroken, down to the year 1879, if it was broken 
then, by the admission of Mr. Bell, and we insist it was not for the reasons above 
stated. 


The minority report of Senators A. P. Butler and J. A. Bayard in the case of 
Samuel S. Phelps, which was sustained, denying Mr. Phelps his seat, is well worthy 
of consideration. They say: 

“ The Senate of the United States is composed of organized constituencies—the 
State legislatures; to them belong the power primarily of electing their Senators 
when they are in session, at the happening of vacancies, at their first meeting when 
it happens in their recess, and on them devolves the exclusive jurisdiction of filling 
such vacancies. Their right and authority to fill or supply vacancies, which have 
been primarily filled by executive appointment, are as absolute and exclusive as was 
their right in an original election. When their power is brought into existence, it 
must supersede all others, with this qualification, and that according to precedent, 
they have a session to make the choice. In our view it does not depend on the 
actual exertion of the power to elect, but upon its existence. A Senator, under an 
executive appointment, may or may not represent the political views of his State. 
He may be the mere personal favorite of the governor. The Senate, as far as prac¬ 
ticable, should be made to represent its constitutional constituency, and in this 
respect should preserve the republican feature of our Union.” (See Taft Election 
Cases, p. 18.) . . 

The undersigned, therefore, asserting neither that the Constitution should be 


68 


SENATE ELECTION CASES. 


strictly constructed nor freely construed, but that it should be construed according 
to the usual and accepted rules of interpretation, so as to give effect to its plain 
and unmistakable meaning; and believing earnestly that an executive appointment 
to fill a vacancy caused by the expiration of a regular term of a Senator, the legisla¬ 
ture of the State being in session at the time when by law it should have filled such 
vacancy itself, and failing to perform that duty is not within the scope and meaning 
of the power granted to State executives by article 1, section 3, of the Constitution, 
submit the following resolution: 

Resolved , That the Hon. Lee Mantle is not entitled to take his seat in this body as 
a Senator from the State of Montana. 

Z. B. VANCE. 

GEORGE GRAY. 

JOHN M. PALMER. 

JOHN H. MITCHELL. 

PROCEEDINGS IN THE SENATE. 

The resolution reported by the Committee on Privileges and Elections in the case 
of Lee Mantle was the subject of debate in the Senate March 29, 1893 (Cong. Rec., 
vol. 25, pp. 38-47), March 30,1893 {Ibid., pp. 50-66), April 3,1893 {Ibid., pp. 68-74), 
April 4, 1893 {Ibid., pp. 75-79), April 5, 1893 {Ibid., pp. 80-89), April 6, 1893 {Ibid., 
pp. 93-96), August 7, 1893 {Ibid., p. 225), August 14, 1893 {Ibid., pp. 289, 290), 
August 15, 1893 {Ibid., pp. 332-337), August 16, 1893 {Ibid., p. 393), August 17,1893 
{Ibid., pp. 421-429), August 21,1893 {Ibid., pp. 540-545), and August 23, 1893 {Ibid., 
pp. 676-688). 

[Extracts from remarks of Mr. Pugh in support of the resolution that Mr. Mantle be admitted to a 

seat as a Senator from the State of Montana. Found in the Congressional Record, vol. 25, pp. 38-40.] 

“Mr. President, the importance of the question presented by the reports of the 
majority and minority of the Committee on Privileges and Elections will be con¬ 
ceded, and the necessity for a solution of it by the Senate that will be accepted here¬ 
after as final can not be questioned. The conditions and results inseparable from 
the discussion, consideration, and determination of the right of the appointee of a 
governor to fill the vacancy existing in the Senate have unfortunately been influ¬ 
enced more or less by the fact that the appointee was a Democrat or Republican, as 
is shown by the division of the votes of Senators on party lines; and when once 
committed it is difficult for the Senator, on reconsideration of the same question, to 
give due weight to arguments against the soundness of his former decision. The 
question as it is now presented is freer from political surroundings and in a better 
condition to be decided on its real merits than at any time when heretofore 
determined. 

“The first inquiry to which I direct the attention of the Senate is as to the facts 
in each of the three cases of the States of Montana, Wyoming, and Washington. In 
each of the cases the terms of the Senator elected by the legislature of his State 
expired on the 4th day of the present month. In each of the States the legislature 
had met and organized some time prior to the 4th of March, when the seat of one 
of the Senators from each State was vacated by operation of the Constitution. In 
each of the States the legislature, in accordance with the act of Congress of 1866, 
proceeded to elect a Senator to fill the vacancy, and continued in daily session to 
elect until the existence of the legislature was terminated by an express provision of 
the constitution of each State, and when thus terminated the power of the legislature 
in each State expired, leaving the seats of each of the Senators vacated and the 
three States without their constitutional representation. 

“In the case of Montana and Wyoming, the sessions of the legislature expired by 
constitutional limitation a few days before the 4tli of March, when the seats of the 
Senators were vacated. In the case of the State of Washington, the legislature 
expired by constitutional limitation after the 4th of March; so that in the former 
two States the vacancy occurred after the termination of the life of the legislature, 
and, of course, during its recess, while in the State of Washington the vacancy in 
the Senate occurred while the legislature was in session. 

“ The foregoing are the undisputed facts and all the facts upon which the question 
of constitutional law arises—whether the governors of the States are invested with 
the power of filling the vacancies in the Senate of the United States admitted to 
exist m the manner and under the circumstances I have stated. We can look 
nowhere for the power to fill these vacancies in the Senate except in the Constitution 
of the United States. 

11 ^he fi rs t article and third section of the Constitution we find the following 
words: 

‘ The Senate of the United States shall be composed of two Senators from each 


LEE MANTLE, OF MONTANA. 69 

State, chosen by the legislature thereof for six years, and each Senator shall have 
one vote. 

“ ‘Immediately after they shall be assembled in consequence of the first elec¬ 
tion, they shall be divided as equally as may be into three classes. The seats of 
Senators of the first class shall be vacated at the expiration of the second year, of 
the second class at the expiration of the fourth year, and of the third class at the 
expiration of the sixth year, so that one-third may be chosen every second year; 
and if vacancies happen, by resignation or otherwise, during the recess of the legis¬ 
lature of any State, the executive thereof may make temporary appointments until 
the next meeting of the legislature, which shall then fill such vacancies.’ 

“ The above quotations are all the provisions of the Constitution relating to filling 
and keeping the Senate full of two Senators from each State at all times. It will be 
observed that there are only two modes provided of securing to each State at all 
times a full representation of two Senators: (1) By having them ‘chosen’ perma¬ 
nently by the legislature of the State, and (2) when ‘vacancies happen, by resig¬ 
nation or otherwise, during the recess of the legislature of any State, the executive 
thereof may make temporary appointments until the next meeting of the legisla¬ 
ture, which shall then fill such vacancies.’ 

‘ ‘ How is the representation kept full in the House of Representatives? The second 
section of the Constitution provides for representation in the House on the basis of 
population, and that ‘ each State shall have at least one representative,’ and ‘ when 
vacancies happen in the representation from any State the executive authority 
thereof shall issue writs of election to fill such vacancies.’ 

“ ‘ Each House shall be the judge of the elections, returns, and qualifications of its 
own members.’ 

“ How are all the offices of the United States kept full so that the public service 
suffer no detriment? 

“The second section of Article II provides that the President ‘shall nominate, 
and by and with the advise and consent of the Senate shall appoint * * * all 
officers of the United States,’ and ‘the President shall have power to fill all vacan¬ 
cies that may happen during the recess of the Senate by granting commissions 
which shall expire at the end of their next session.’ 

“The foregoing extracts from the Constitution embrace everything in it relating 
directly or indirectly to every aspect of the questions before the Senate. The next 
source of information to which I call the special attention of the Senate is wffiat was 
said and done in the convention that framed the above provisions of the Constitution 
to shed light on their objects and true meaning. 

“In Elliott’s Debates, found in the Madison Papers, at page 377, Mr. Rutledge, 
on the 6th of August, 1787, reported from the committee of detail as follows: 

“ ‘Article V, section 1. The Senate of the United States shall be chosen by the 
legislatures of the several States. Each legislature shall choose two members. 
Vacancies may be supplied by the executive until the next meeting of the legislature. 
Each member shall have one vote.’ 

“This provision, reported by the committee of detail, was under consideration on 
the 9th of August. The whole proceeding on Article V, section 1, as I have quoted 
it, appears as follows, just as it stands in the debates: 

“ ‘ Mr. Wilson objected to vacancies in the Senate being supplied by the executives 
of the States. It was unnecessary, as the legislatures will meet so frequently. It 
removes the appointment too far from the people, the executives in most of the 
States being elected by the legislatures. As he had always thought of the appoint¬ 
ment of the executive by the legislative department wrong, so it was still more so 
that the executive should elect into the legislative department. 

“ ‘ Mr. Randolph thought it necessary in order to prevent inconvenient chasms in 
the Senate. In some States the legislatures meet but once a year. As the Senate 
will have more power and consist of a smaller number than the other House, vacan¬ 
cies there will be of more consequence. The executives might be safely trusted, he 
thought, for so short a time. 

“ ‘ Mr. Ellsworth. It is said that the executive may supply vacancies. When the 
legislative meeting happens to be near the power will not be exerted. As there will 
not be but two members from a State, vacancies may be of great moment.’ 

“ You will see that the word ‘ happens’ is used by Mr. Ellsworth in reference to 
the meeting of the legislature, which is always fixed by law. 

“ ‘ Mr. Williamson. Senators may resign or not accept. This provision is there¬ 
fore absolutely necessary. 

“ ‘ On the question of striking out ‘ vacancies shall be supplied by the executives, 
the vote stood—Pennsylvania, aye—1; New Hampshire, Massachusetts, Connecticut, 
New Jersey, Virginia, North Carolina, South Carolina, Georgia, no—8; Maryland, 
divided. 


70 


SENATE ELECTION CASES. 


‘“Mr. Williamson moved to insert after ‘ vacancies shall be supplied by the exec¬ 
utives,’ the words, ‘unless other provision shall be made by the legislature of the 

“ ‘ Mr. Ellsworth was willing to trust the legislature or the executive of a State, 
but not to give the former a discretion to refer appointments for the Senate to whom 
thev pleased. 

“ ‘On the question of Mr. Williamson’s motion, Maryland, North Carolina, South 
Carolina, and Georgia, aye—4; New Hampshire, Connecticut, Massachusetts, New 
Jersey, Pennsylvania, and Virginia, no—6.’ 

“Now Mr. Madison speaks, and I desire Senators to hear him: 
******* 


“‘Mr. Madison, in order to prevent doubts whether resignations by Senators, or 
whether they could refuse to accept, moved to strike out the words after ‘vacancies’ 
and insert the words ‘happening by refusals to accept, resignations, or otherwise, 
may be supplied by the legislature of the State in the representation of which such 
vacancies shall happen, or by the executive thereof until the next meeting of the 
legislature. ’ 

“Making the power of the legislature and the governor to fill vacancies that happen 
coequal. 

“Mr. Hoar. Will the honorable Senator from Alabama permit me to make a sug¬ 
gestion, which I dare say may be in his plan of remarks, that that difficulty arose 
from the rule in the English House of Commons, which is familiar to all Senators, 
which did not permit a member of the House of Commons to vacate his office by 
resignation. 

“Mr. Pugh. And thereby create a vacancy. 

“Mr. Hoar. To this day I believe the fiction is kept up, and when a member of 
the House of Commons desires to vacate his seat he accepts another office—the Chil- 
tern Hundreds; he gets out of it in that way. That was what made the language 
seem necessary to Mr. Madison. 

“Mr. Pugh. It was upon that state of facts that doubts arose as to the right of a 
Senator to resign and thereby create a vacancy. 

“‘Mr. Gouverneur Morris. This is absolutely necessary; as members chosen in 
the Senate are disqualified from being appointed to any office by section 9 of this 
article, it will be in the power of the legislature, by appointing a man as Senator 
against his consent, to deprive the United States of his services. 

“ ‘The motion of Mr. Madison was agreed to nem. con .’ 

“Here is proof as strong as language can make it that no opposition was ever 
expressed in the convention that framed the Constitution, except by one State, to 
granting power to the executives of the States to fill vacancies that happen in the 
Senate from any cause at any time. No mention is made of how a vacancy should 
happen, or that it should be of any particular kind or character, to be imparted to it 
by the cause or event or fact that produced it. There was no attempt to limit the 
executive power to fill vacancies. 

******* 


“ The existence of the vacancy from any cause was the crucial test of executive 
power to fill it. Then why were the words ‘ by resignation or otherwise ’ inserted? 
Plainly and undoubtedly for the purpose, as declared then and there by Madison, 
the author and mover of the language, and by Gouverneur Morris, the supporter of 
Madison’s motion, of removing all doubt as to the right of Senators to resign, and 
not doubts as to the power of the executives to fill vacancies to keep the Senate full 
to preserve the equality of representation. 

“The manifest and declared purpose of inserting the words ‘by resignation or 
otherwise ’ was to protect the rights of Senators, and not to interfere with or limit 
or qualify the power of the governors to fill all vacancies that happen to exist in the 
Senate. The word ‘ resignation ’ removed all doubts as to the rights of Senators by 
express specification, and the words ‘ or otherwise ’ were added to preserve the 
power of the executives to fill vacancies to the full extent that it would exist by the 
use of the words which eight States refused to strike out on the motion of a single 
State. 6 

“ Mr. President, I have read to the Senate every provision of the Constitution and 
all that was said by the authors of these provisions at the time they were adopted, 
it seems to me that there is nothing upon which to base a reasonable doubt, and 
all the minority of the committee can do is to turn the Senate into a college of phi¬ 
lologists, to teach each other etymology, syntax, and prosody, and speculate on what 
W ashmgton, and Franklin, and Madison, and Ellsworth, and Gouverneur Morris 
really intended that then existing and future generations who were to be governed 
under the Constitution to be submitted to each State for ratification should under- 


LEE MANTLE, OF MONTANA. 


71 


stand from the language of the Constitution, and where the power was invested to 
keep the Senate and House and executive offices full, so that each State should have 
two Senators in the Senate and at least one Representative in the House and every 
executive office an incumbent. 

“The language of the Constitution was not selected by philologists or technical 
lawyers, but by statesmen, who used plain, comprehensive words to give expression 
to their strong common sense and practical knowledge of the fundamental objects 
and uses of free representative government. 

“The words in the Constitution that give rise to all the contention and difference 
of opinion as to where the power resides to fill vacancies in the Senate are the 
following: 

“ ‘And if vacancies happen, by resignation or otherwise, during the recess of the 
legislature of any State, the executive thereof may make temporary appointments 
until the next meeting of the legislature, which shall then fill such vacancies.’ 

“I have shown all the history of the use of those words. It is an axiomatic rule 
of construction of words and sentences, wherever found, to ascertain the intention, 
purpose, and object of those using the language, and then, if practicable, to adopt the 
meaning that will execute the intention and accomplish the object of the authors. 

“There can be no controversy about the importance of the object intended to be 
accomplished by declaring that ‘ the Senate of the United States shall be composed 
of two Senators from each State, and each Senator shall have one vote. ’ How shall 
two Senators be assured to each State at all times? Was it considered possible under 
any circumstances or conditions existing or that could exist at any time that a State 
could be deprived of its full representation of two Senators? 

“If such a possibility could have been discovered by the framers of the Constitu¬ 
tion in the insufficiency or uncertainty in the meaning of the words used to provide 
against such a material and revolutionary probability or possibility, would they have 
failed to avoid it by the insertion of words that would have excluded all doubts as 
to the happenings of such possible consequences? It is a reflection upon the capacity 
and intelligence of the framers of the Constitution to charge that their paramount 
object to keep the Senate full is to be defeated by their intentional or careless or 
ignorant selection of words to carry out their main purpose that they ought to have 
known were wholly inadequate to accomplish such object. What language of the 
Constitution can be tortured into the discovery of the intention, desire, or anticipation 
of its framers that the power should exist anywhere in the framework of our dual 
system of government by action or nonaction of any of the agencies provided to keep 
the Senate full to deprive any State of equal representation in that great lawmaking 
body? 

“ It is claimed by the philologists in the Senate who deny the power of the gov¬ 
ernors of Montana, Wyoming, and Washington to fill the vacancies in the Senate 
from those States that no such vacancies exist in the Senate, because the vacancies 
there did not ‘happen’ in a constitutional sense; that the only ‘vacancies’ the 
governors can fill are those that ‘ happen ’ in the sense that word was used in the 
Constitution, and that is, that ‘ happen ’ is a descriptive term, used by the framers 
of the Constitution to define particular kinds of vacancies—vacancies having a spe¬ 
cific character imparted to them by the cause or event or fact that produced them; 
that the cause, event, or fact that produced the vacancies that ‘ happen ’ in a constitu¬ 
tional sense is an accidental cause, an accidental event, an accidental fact happening 
by chance, that no power of. foresight, forethought, or anticipation could discover, 
such as the resignation, death, or removal of a Senator. 

“The existence of vacancies in the Senate from those States mentioned must be 
admitted as a physical fact, shown by occular demonstration. Each of these States 
has only one Senator, w r hen the Constitution in mandatory language requires that 
each of them shall have two Senators. Neither is it denied that the constitutional 
right to two Senators is just as much impaired by a vacancy that exists from any 
cause as it is by a vacancy that happens by chance or accident. The framers of the 
Constitution must have known that any other vacancy was the same in effect as a 
vacancy that happens by chance or accident. They provided for a vacancy that 
happened by chance or accident, but a vacancy that was an anticipated certainty, 
like the termination of a six-year term on the 4th of March, they made no provision 
for filling except by an election by the State legislature. 

“A vacancy that happened by chance or accident pending a six-year term could 
be filled in two ways—by an election by the legislature or by an appointment by the 
governor. But vacancies that exist by operation of law, it is claimed by the minor¬ 
ity, can only be filled by the legislature, and that vacancies that happen in a six- 
year term by the occurrence of an unexpected fact can be filled by the governor or the 
legislature. * There is no conceivable reason for, and no possible evil to be remedied 
by, this difference in the power to fill vacancies in the Senate. There is about as 


72 


SENATE ELECTION CASES. 


much substance in the difference and reason for it as there is in the difference between 
tweedledum and tweedledee. . . , 

“If we take Washington and Franklin among the dictionaries, with which the 
philolgists in the Senate must presume these illustrious statesmen were familiar and 
must have frequently consulted to find fit and proper words to convey their exact 
meaning, we are unable to discover any word in the English language that could be 
preferred to the word ‘happen’ to give expression to their full meaning as to the 
‘vacancies’ the executives were to have power to fill in the Senate. 

“Mr. Whitney, the author of the Century Dictionary, has shown as much learn¬ 
ing and research in his analysis of English words to ascertain their derivation and 
most reliable meaning as any philologist who ever published a dictionary. He 
enjoyed the advantage of having studied the dictionaries and works of all his prede¬ 
cessors, and his Century Dictionary is established as among the highest standard 
authorities. 

“In the Century Dictionary the word ‘happen’ is defined in its particular and 
general meaning, land it embraces completely the accidental and chance causes and 
the causes that can be anticipated. ‘Happen,’ says the Century Dictionary: ‘1. To 
occur by chance; occur unexpectedly or unaccountably; in general, to occur; to take 
place.’ In other words, and unmistakably, the general difinition in the dictionaries, 
‘vacancies that happen to exist,’ as decided by every Attorney-General of the United 
States in analogous cases where the same words are used in the Constitution.” 


[Extracts from remarks of Mr. Mitchell, of Oregon, in opposition to the resolution that Mr. Mantle be 
admitted to a seat as a Senator from the State of Montana. Found in the Congressional Record, 
vol. 25, pp. 51, 54-57, 65.] 


“Mr. President, the question involved in the proposition now before the Senate is 
not only one of the highest privilege, but of transcendent importance. It is one the 
solution of which does not depend on the determination of any question of fact, but 
rests solely upon constitutional and statutory construction. It is, therefore, a ques¬ 
tion in the consideration and determination of which no element of partisanship can 
be permitted, and I am sure will not be permitted, to enter. It may seem somewhat 
strange that there should be, after the lapse of over one hundred years since the adop¬ 
tion of our Constitution, room for any serious differences of opinion as to whether the 
executive of a State has or has not the constitutional power in a given case to confer 
upon a citizen by appointment the right to a seat, temporarily or otherwise, in this 
body; and yet the report in the case under consideration and the debate now in 
progress clearly show that this is so. 

****** * 


“We are told with great confidence that the theory of the Constitution is that it 
was so constructed in its various provisions relating to the choosing of United States 
Senators that the Senate shall always have its full complement of members present 
in this body, so that, in the language of the report of the majority, the Senate ‘shall 
be kept full—always full.’ Grant, for the sake of the argument, that this is so; and 
grant further that it is always a matter of deep regret that there should be a vacant 
seat from any State for any considerable length of time; yet in all confidence I sub¬ 
mit that an occasional vacancy for a brief time in the representation of a State or two 
States, or a half dozen States for that matter, is an evil infinitesimal in degree and 
character, in importance and consequences, compared with that overshadowing evil 
which must necessarily result from the recognition of a construction or the approval 
of a doctrine that will eventuate in admitting to a seat in the Senate a single member 
who is lacking in the proper constitutional title. There is but one way, it is respect¬ 
fully submitted, by which Senators can be rightfully chosen under our present Con¬ 
stitution, either for a full term or to fill a vacancy, and that is by the legislatures of 
the States, respectively. 

“The executive of a State has no constitutional power to choose a Senator for a 
State; no, not for even the briefest possible period of time. That belongs alone and 
exclusively under the Constitution to the legislature. The executive, however, is, 
b y ^ certain carefully prescriped, clearly defined, limited constitutional grant, 
clothed with^ the prerogative which he alone can exercise, as I shall confidently 
contend, only after a Senator has been thus chosen by the proper constitutional 
authority the legislature and a vacancy in that Senator’s term so chosen subse¬ 
quently happens by resignation or otherwise’ by which he can, in the event such 
vacancy or vacancies happen ‘during the recess of the legislature,’ not choose a 
Senator, not even fill the vacancy, but make ‘temporary appointments until the 
meeting of the legislature, which shall then fill such vacancy ’ 

“The primary and constitutional power, therefore, both of choosing Senators for 
full terms, whether these terms be for two, four, or six years, and also of filling 


LEE MANTLE, OF MONTANA. 


73 


vacancies which may occur in those terms, belongs under the Constitution exclusively 
to the legislature of the State, and the only constitutional power inhering in the 
executive of a State in respect of this important function is not to choose a Senator, 
not to fill a vacancy, .because these are functions clearly vested by the Constitution 
exclusively in the legislature, but to make ‘ temporary appointments ’ in case vacan¬ 
cies happen by resignation or otherwise during the recess of the legislature. 

* ****** 

“In the light of these observations let us consider the provisions of the Constitu¬ 
tion under consideration and endeavor to arrive at a conclusion as to their correct 
interpretation. 

“The minority of the committee hold to the view that inasmuch as the Constitu¬ 
tion in plain and specific terms provides in the first instance for certain definite spe¬ 
cific terms of Senators—first of six years, then four, then two years—by virtue of the 
classification to be made immediately after assembling in consequence of the first 
election, and then provides— 

“ ‘ If vacancies happen by resignation or otherwise during the recess of the legisla¬ 
ture of any State’— 

that the vacancy contemplated and referred to is a vacancy occurring by resignation 
or otherwise in one or the other of these fixed and definitely described terms, and 
that it has no reference whatever to any condition that may exist at the expiration of 
any of these regular terms, and this is so for a great number of reasons; first, because 
it is the constitutional duty of the legislature of a State, not only in virtue of the pro¬ 
visions of the Constitution itself, but doubly so in virtue of the act of Congress of July 
25, 1866, to provide by election in advance of such a vacancy for a successor to a Sen¬ 
ator whose full term is about to expire; and it was never contemplated, as we sub¬ 
mit, that the legislature, no less than the executive, of a State would fail to perform 
this great constitutional function. 

“In other words, we confidently insist for the reasons already fully indicated that 
the vacancy referred to in the Constitution is a something that must be carved out of a 
term to which a Senator has been chosen. It is a vacancy that must ‘happen,’ not 
by a predetermined fact, not by the occurrence of something we all know long in 
advance of its occurrence is absolutely sure to occur at a certain date, but a vacancy 
which ‘happens by resignation or otherwise’—that is, which happens in some such 
manner as a resignation , in some like manner , some unexpected manner, in some man¬ 
ner that we did not anticipate, some manner we did not expect, some like unex¬ 
pected and unanticipated manner, such as death, abandonment, expulsion, or other 
like unexpected occurrence, and not only by resignation, but otherwise. 

“The able Senator from Alabama [Mr. Pugh] in his speech on yesterday, devoted 
considerable space to a consideration of the proceedings of the convention which 
framed the Constitution, and thought he could see in these an argument in favor of 
that construction of that portion of the instrument relating to temporary appoint¬ 
ments of Senators by the executives of States so ably contended for by him. A con¬ 
sideration of these proceedings is both interesting and instructive; but as I shall 
contend, and as I believe I can demonstrate, so far from furnishing any argument in 
favor of the construction for which he contends, they furnish a very strong argument 
against that construction. In the original ‘plan of a Federal constitution,’ sub¬ 
mitted to the convention by Mr. Charles Pinckney on the 29th day of May, 1787, it 
was provided that the Senate of the United States should be chosen by the House of 
Delegates. That plan contemplated assigning to each State, not an equal number of 
Senators, but to some States a greater and some a less number, and the provision in 
that plan relating to vacancies read as follows: 

“ ‘ As their terms of service expire the House of Delegates shall fill them up by 
elections for-years; and they’— 

“That is, the House of Delegates— 

“ ‘shall fill all vacancies that arise from death or resignation for the time of service 
remaining of the members so dying or resigning.’ 

“This plan, therefore, provided, as in the Constitution as it stands to-day, on this 
subject, a tribunal— not the legislature of a State, it is true, but the House of Dele¬ 
gates—as the House of Representatives was called at that time, whose constitutional 
duty it should be to not only choose the Senators originally, but their successors from 
time to time as their terms might expire, and then provided that that same tribunal 
should fill all vacancies occurring from death or resignation, thus keeping up clearly 
the distinction between the filling of a term originally and the filling of vacancies 
that might occur in such term precisely as we claim is the case in the Constitution as 
finally adopted. 

“In the report of the committee of detail submitted to the convention by Mr. 
Rutledge August 6, 1787, the clause on this subject read as follows: 


74 


SENATE ELECTION CASES. 


“ ‘The Senate of the United States shall be chosen by the legislatures of the sev¬ 
eral States. Each legislature shall choose two members. Vacancies may be supplied, 
by the executive until the next meeting of the legislature . Each member shall have one 

“ it will thus be seen that in the original draft from the committee of detail, the 
simple term ‘ vacancies ’ without any limitation or qualification whatever was 
employed. Neither the word ‘ happen ’ nor the words ‘ by resignation or other¬ 
wise ’ were included. It was simply, ‘ Vacancies may be supplied by the executive 
until the next meeting of the legislature/ 

“ When the matter came up for discussion in the convention Mr. Wilson, of Penn¬ 
sylvania, objected to vacancies in the Senate being supplied by the executives of the 
States. He said it was unnecessary, as the legislatures will meet so frequently. ‘ It 
removes/ said he, ‘the appointment too far from the people, the executives in most 
of the States being elected by the legislatures. As he had always thought the 
appointment of the executive by the legislative branch wrong, so it was still more so 
that the executive should elect into the legislative department/ 

“While Mr. Randolph argued that it was necessary in order to prevent, to use his 
own language, ‘inconvenient chasms in the Senate/ 

“ ‘True,” Mr. Williamson said, as stated by Senator Pugh in his argument yester¬ 
day, ‘that Senators might resign or not accept / He said that, but he did not say, 
‘true, a legislature may fail to elect / He did not state that as a reason why this power 
should be given to an executive. Nobody said that in the convention. They did 
say that a man chosen might die or might refuse to accept , but no one ever suggested 
in the convention a case where the legislature should fail to elect, and not one of the 
distinguished Senators who favor the report of the committee in this case can point 
it out. 

“Mr. Vance. If my colleague on the committee will allow me, I should like to 
ask him a question, which I think is pertinent in this connection. 

“Mr. Mitchell, of Oregon. Certainly. 

“Mr. Vance. Can the Senator point out any case in the Constitution where a duty 
is primarily imposed upon an officer therein named, the performance of that duty is 
conferred upon another officer contingent upon the failure of the first officer to per¬ 
form his duty? 

“Mr. Mitchell, of Oregon. There is no such case in the Constitution. It can not 
be found. I have been trying here for the last half hour or more to demonstrate 
that very thing. I have been trying to prove that the men who framed the Consti¬ 
tution, after having designated a tribunal to perform a constitutional function, never 
dreamed of providing a substitute to perform that constitutional function in the 
event of a failure upon the part of the tribunal thus constitutionally provided to do 
its duty. 

******* 

“Now, whatever may have been the intention of the committee of detail, whether 
they intended that the words ‘ vacancies shall be supplied by the executives’ 
should include a case of a vacancy occurring at the expiration of a term, it is abso¬ 
lutely clear beyond all question that the clause as reported by the committee of 
detail would, by proper construction, include a case such as that now before the 
Senate, and had the convention stopped in its attempt to reform this particular 
provision of the report of the committee of detail with the vote refusing to strike 
out these words ‘vacancies shall be supplied by the executives,’ then I, for one, 
would have no trouble whatever in agreeing with the majority of the committee. 
But, unfortunately for the argument of the committee and of the able Senators from 
Alabama [Mr. Pugh] and from Massachusetts [Mr. Hoar], the convention, while 
they determined by this decisive vote that the executives of States should be 
empowered to fill vacancies, determined later on that they would define and fix by 
appropriate language the character of the vacancies which should thus be filled by the 
executives of States. And several propositions were submitted looking to limiting 
and qualifying the words ‘vacancies shall be supplied by the executives.’ 

“One motion made by Mr. Williamson was to insert, after the words ‘vacancies 
shall be supplied by the executives,’ the words ‘unless other provision shall be 
made by the legislature,’ and this proposition was combated by Mr. Ellsworth, 
who declared that he was willing to trust the legislature of a State, but not to give 
the former the legislature—a discretion to refer appointments for the Senate to 
whom they pleased. Consequently the motion of Mr. Williamson was voted down 
by 4 ayes and b noes. Then it was that Mr. Madison moved to strike out of the 
clause, as reported by the committee of detail, all after the words ‘vacancies’ and 
insert in lieu thereof the words ‘happening by refusals to accept, resignations, or 
otherwise, may be supplied by the legislature of the State in the representation of 
which such vacancies happen, or by the executive thereof until the next meeting of 


LEE MANTLE, OF MONTANA. 75 

the legislature.’ True, this proposition of Mr. Madison was in the first instance 
agreed to nem. con. 

“Now, Mr. President, if we were to admit that if the clause had remained in that 
form, that then the construction contended for by the committee and by the Sena¬ 
tors from Massachusetts and Alabama would be the correct one; but this I deny and 
will conclusively show, I think, in a moment, unfortunately again for the argument of 
the committee and of the distinguished Senators who hold to that view, this portion 
of the Constitution was not left in this form, but as signed by the members of the 
Convention was remodeled and put in form as it stands to-day. 

“In other words, the clause ‘by refusals to accept,’ which was a part of Mr. 
Madison’s motion, was stricken out, so that while by the report of the committee of 
detail, as well as amended by the motion of Mr. Madison, the executives of States 
were authorized until the next meeting of the legislature to fill a vacancy that might 
occur, not only by resignation or some such like cause, but also by vacancy caused 
by refusal to accept on the part of a person theretofore duly chosen Senator by the legis¬ 
lature, the provision, as finally remodeled, was entirely changed in this respect. 
Whatever, therefore, may have been the intention originally, or even throughout, of 
some of the members of that Convention, it seems to me perfectly clear that the final 
action of the Convention—and that is what we must look to to get the final conclu¬ 
sion of the mind of the Convention—limited the vacancies which could be filled by 
the executive to those carved out of a term by resignation or some other like cause, 
such as death, abandonment, or expulsion. 

******* 

“And now, in attempting a construction of these constitutional provisions, it is 
worth while to inquire if it were the intention of the framers of the Constitution to 
confer authority on the executives of States to make temporary appointments in all 
cases of vacancies in a seat that might occur , or, if you please, happen, why were 
the four words ‘by resignation or otherwise’ inserted in the Constitution? 

“With these four words omitted there would be much reason for holding that the 
governor would have the power to temporarily appoint whenever there was a vacancy 
occurring during a recess of the legislature, no matter how happening, no matter 
how occurring—whether by death, resignation, expulsion, or the expiration of a 
term. In other words, in such a case one might well hesitate to deny that the clause 
would mean what the majority of the committee contend it now means with these 
four words in. All would agree that an authority to. fill vacancies occurring , if the 
word ‘occur’ instead of ‘happen’ had been used, would include all vacancies, no 
matter how occurring. 

“Most of us would, perhaps not all, agree that vacancies happening where there 
were no words of limitation upon the term ‘vacancies’ would include all vacancies 
in a seat, no matter how occurring, and this is my view. And I will here state, in 
giving construction to this clause of the Constitution, I do not personally, perhaps, 
place so much weight as some do on the word ‘happen’ as in and of itself, when 
unqualified by other words, as so distinctly controlling the interpretation, as I do on 
the words ‘by resignation or otherwise.’ The word ‘happen,’ I admit, may have 
different meanings, the meaning depending entirely on the sense in which it is used, 
on the connection in which it is employed, on the subject-matter to which it relates, 
on the event to which it is applied, and the qualifying words employed in connection 
with this word. 

******* 

‘ ‘ But what is the meaning of the word ‘ otherwise ’ in the connection in which it 
is employed in the phrase ‘ If vacancies happen by resignation or otherwisef ’ 

“The distinguished Senators from Massachusetts and Alabama, and other Senators 
who support the majority report, claim that the word ‘otherwise’ in this connection 
means ‘in any other manner ,’ while we of the minority contend that under the well- 
settled and universally recognized rules of constitutional and statutory construction 
it means ‘in like manner ,’ or some such manner as resignation. 

“It is a well-settled rule of judicial decision that where specific words are used, fol¬ 
lowed by more general words, the general words are qualified by the specific words. 
Innumerable authorities might be quoted to sustain this position. In Bishop on 
Statutory Crimes, page 246, we find this: 

“ ‘ Lord Bacon observed that “as exception strengthens the force of a law in cases 
not excepted, so enumeration weakens it in cases enumerated.” This doctrine is in 
part the foundation of the celebrated rule that where particular words are followed 
by general ones, as if after the enumeration of several classes of persons or things 
the words are added “ and all others ,” these general words are restricted in meaning to 
objects of the like kind with those specified. Therefore, under statute 29, Charles 
II, chapter 7, Section I, providing that no tradesman, artificer, workman, laborer, 


SENATE ELECTION CASES. 


76 


or other person whosoever should exercise his ordinary calling on the Lord’s Lav, the 
words ‘‘ other person” were held not to include a farmer, who is not a person of the 
like denomination with those persons specifically mentioned. For, as Bayley, J., 
said: “If all persons were meant, there was no need of the specific enumeration.” ’ 

“The books are full of illustrations similar in their nature and all tending to pre¬ 
cisely the same end. 

******* 

“But, Mr. President, I am done, and I do not fail to realize that notwithstanding 
the opinions held by the minority of the committee, of which I am an humble mem¬ 
ber, the die in all probability is already cast, and a majority of this Senate will prob¬ 
ably vote to admit to seats in this body the three appointees of the States respectively 
of Montana, Wyoming, and Washington. But let me, Mr. President, remind you 
and this Senate when you do this you vote to overturn the deliberate precedent 
established by this Senate, after full consideration, over sixty-eight years ago; you 
vote to reject the interpretation placed on the Constitution of the United States by 
such great constitutional lawyers and statesmen as Webster and Clay, as Butler and 
Cabot, as Ellsworth and Frelinghuysen, as Monroe and King, as Cass and Calhoun, 
as Douglas and Seward, as Underwood and Mason, as Badger and Bayard, as Car¬ 
penter and Conkling, as Davis and Lamar, as Garland and Eaton, as Kernan, Mor¬ 
gan, and James G. Blaine, of Maine. 

“You establish a rule by virtue of which the great fundamental principle of the 
Constitution, which vests in the legislatures of States the exclusive power of choos¬ 
ing Senators, will be subverted. You will establish a precedent which inside of ten 
years will, in my judgment, result in witnessing one-third of this great body seated 
here by no other title than that conferred by temporary appointments of the execu¬ 
tives of States; you will establish a precedent which will tend to demoralization in 
State legislatures, which will transfer the jurisdiction as to the election of United 
States Senators from the legislatures of the States respectively, where the Constitu¬ 
tion has vested it, to the governors of States, and you will inflict a fatal stab at the 
great structure of republican government under which we live, and encourage, pro¬ 
tect, and defend antagonisms to the best interests of the States respectively, and 
to the greatest and best of all the republics that has ever existed since the world 
began.” 


[Extracts from remarks of Mr. Vance in opposition to the resolution that Mr. Mantle be admitted to seat 
as a Senator from the State of Montana. Found in the Congressional Record, vol. 25, pp. 540-542.] 


“Mr. President, the question involved in this case, briefly as I can state it, is this: 
The term of Mr. Sanders, the late Senator from Montana, ended March 3,1893. The 
legislature of that State, whose duty it was to elect his successor, by the act of 1866, 
adjourned on the same day without an election. On the next day, March 4, 1893, 
Mr. Mantle was appointed to succeed Mr. Sanders. Is he entitled to a seat in this 
body? In other words, the regular term of a Senator expiring on a certain day, the 
legislature being in session, which by law should have elected his successor, and failed 
to do so, shall the governor appoint? The minority on the Committee on Privileges 
and Elections say he shall not. The majority say he may. 

******* 


“ I want to say, imprimis , that I deny there is any specially imposed constitutional 
obligation upon us to keep the Senate full, greater or more binding than there is in 
regard to any other department or offices of the Government. 

******* 


If there be any duty specially imposed as to keeping the Senate full, it is imposed 
upon those who are charged with the creation of Senators by the Constitution, and 
not upon us. We sit here only to judge of the election and qualification of those who 
come to us claiming to be Senators; it is in no sense our duty to supply the defects 
ai u vr Ure i e * a uures of constitutional Senator makers to perform their sworn functions. 

. e Senators to be chosen? That is set forth in Article I, section 
3, of the Constitution, as quoted above. Before applying the technical rules of con¬ 
struction to the words therein contained, let us look at them in a plain, common- 
sense light, as they would appear to any unprejudiced citizen of ordinary intelligence; 

view » us consider the circumstances under which this article 
of the Constitution was adopted. 

• suppose that the members of that convention had assembled and organ¬ 

ized and digested a skeleton outline of the form of government which they wished 
to establish. e will suppose that they had determined upon dividing its powers 
lr } t0 A hree branches—the executive, legislative, and judicial; that the legislature 
should consist of two houses or bodies, a Senate and House of Representatives; that 
the Senate should consist of two Senators from each State, with one vote each. That 


LEE MANTLE, OF MONTANA. 


77 


was brief and simple. The next question arose, How should they be chosen? It was 
decided that they should be chosen—that is, elected—by the legislature of each State 
for a term of six years. 

* ****** 

“This was the programme for establishing a complete, continuous body called the 
Senate of the United States, with a single exception—no provision had been made so 
far for the casual interruption of a term, such as death, or resignation, or expulsion, 
or any other change in the condition of a Senator which rendered his service impos¬ 
sible. Naturally, these accidental and unlooked-for circumstances were considered. 
The question was asked, Should any of these things happen to a senator when the 
legislature of his State was not in session, what then? Should that State have no 
representation in that body for no fault of its own? 

“Surely not; and so they provided that in such a case the governor of such a State 
may appoint temporarily, until the legislature meets, which shall then fill the 
vacancy. In all these contingencies it will be observed that the legislature was 
treated as the primary source of power in reference to the selection of Senators; the 
appointing power conferred upon the governor was only in case of accident or 
some mischance happening to the occupant of a term once filled which would deprive 
the State of a representative in the Senate. 

“It seems impossible to reasonably conceive that at this point there was anything 
else to provide for except these contingencies attending human life and the conduct 
of human affairs. They had already provided for the election of the first Senators, 
fixed their terms, and how and when in regular course their successors should be 
chosen; and it is a reflection upon their intelligence to say that they in the same 
breath added a clause giving the governor power to fill these identical vacancies 
without even the averment that the legislature had failed or refused to do its duty. 
To make sure they gave a sample of the kind of vacancy which might ‘happen.’ 

“There was death—no member doubted that was something which might happen 
to a Senator, and therefore need not be named. There was expulsion, which might 
also happen to a Senator—there was no doubt about that; but there was a doubt 
whether a Senator could resign his office on account of the doctrine which governed 
the British Parliament. To establish the contrary doctrine they mentioned ‘ resig¬ 
nation’ as one of the vacancies which might ‘happen,’ and added the words ‘or 
otherwise’ to include other contingencies, as death, expulsion, and the like, not 
needed to be named. 

“Surely, in the face of their express provisions for filling regular terms by the 
legislature, if they had intended to include the filling of such terms in the powers 
granted to the governors, they would have said so in plainer terms than the words 
‘or otherwise,’ and would not have left so important a grant of power to depend 
upon a construction, and a doubtful construction at that, and one in the face of the 
ordinary meaning of the words used and of well-established law. Nor can the plea 
of ignorance of the meaning of these words, or the usage of the law in the construc¬ 
tion of them, be for a moment considered. 

“The Senator from Virginia [Mr. Hunton] says technical rules ought not to be 
applied in construing the language of those who framed the Constitution, because 
many of them were not lawyers. If this be true, it is also true that many of them 
were lawyers, and as eminent as any in America. Mr. Madison himself was a member 
of the Committee on Style or Revision, and, we may assume, carefully scrutinized and 
corrected the language of the clauses as they were adopted. As they put it, it seems 
to me language could not be plainer. 

“If they had intended that the words ‘ or otherwise ’ should include every possible 
vacancy, they would not have used the words, ‘ which happened by resignation or 
otherwise’ at all, but would have simply said, ‘if vacancies occur’ the governor shall 
appoint, etc. Nor would they have used the word ‘happen’ as applied to a vacancy 
created by law on a given day, which had no element of chance about it; nor would 
they have used the word ‘if’ vacancies happen, because a regular term was sure to 
expire on a certain day, and create a vacancy. There was no contingency about it as 
is implied by ‘if.’ They would have simply said ‘when’ vacancies occur. As one 
would not say, ‘If the sun rises to-morrow I will do so,’ but, ‘When the sun rises 
to-morrow I will do so.’ 

* * * * * * * 

“I can not better close my remarks on this head than by quoting from the speech of 
George E. Badger, of North Carolina, delivered in the Phelps case in 1854. He was, 
perhaps, the greatest lawyer my State has produced, and was possessed of an intellect 
as profound as that of Bacon, analytic as that of Fearne, and acute as that of Pascal: 

“‘The vacancies which the executive is authorized to fill are never vacancies 
which happen by the efflux of time. They are not foreseen vacancies; they are 


78 


SENATE ELECTION CASES. 


vacancies that happen by resignation or otherwise. Mr. President, from an exceed¬ 
ing desire to give this clause of the Constitution such a construction as would keep 
the Senate always full, I labored hard a year or two ago, when we had questions of 
this kind before us, to find out some method of supporting in my own mind a con¬ 
struction that a vacancy happening by efflux of time, and not filled beforehand by 
the legislature, might be brought within this limited power conferred on the 
executive. 

“‘But, sir, I have been obliged to abandon it. “By resignation or otherwise,” 
is the language. We must expound the word “otherwise” to apply to vacancies 
happening by similar events; that is, unforeseen events—death, resignation, appoint¬ 
ment to an office which disqualifies; but it can not be applied to the expiration of a 
term of a Senator which leaves a seat vacant on this floor. My opinion, therefore, 
is that the governor of a State has no power to fill a vacancy in this body which is 
brought about by the expiration or efflux of the time for which the Senator was 
elected—in other words, at the termination of his term in the Senate. It must be a 
vacancy in the term happening during the recess of the legislature; it must be a 
vacancy in the term hapj ening by resignation or other casualty. That I understand 
to have been the express and solemn decision of the Senate in Lanman’s case in 1825, 
overruling one or two earlier decisions which had passed, perhaps, without full 
consideration. ’ 

“The danger of the inconvenience supposed to arise from the Senate not being 
‘ always full ’ is not to be compared for a moment with the danger which would ensue 
if the practice were followed of filling the Senate with members who are not entitled 
by the prescriptions of the Constitution to sit here. Into this temple of our liberties 
no man should be permitted to enter except by the door of the Constitution. 

“Doubtless, when providing the way by wnich it might be entered, our fathers 
had in mind the divine Wisdom, which saith: 

“ ‘ Verily, verily, I say unto you, he that entereth not by the door into the sheep- 
fold, but climbeth up some other way, the same is a thief and a robber. But he that 
entereth in by the door is the shepherd of the sheep.’ 

“ There should be no politics in the decision of this question. No other considera¬ 
tion should enter into it but that of a sincere desire to maintain the letter and the 
spirit of the Constitution. Doubtless many of the complicated decisions which this 
body has made have arisen from the pressure of temporary circumstances of one kind 
or another. It is a great question which should be decided with proper solemnity. 
The ambition of men which leads them often to the obstruction of the proper and 
legal election of Senators to this body in the hope of securing favor from a single 
man—the executive—should be rebuked, and they should be taught to know that 
this great tribunal will not make itself an accomplice in their schemes and combina¬ 
tions, if we wish to avoid scandals and to preserve the character and dignity of the 
United States Senate.” 

[Remarks of Mr. Hoar in support of the resolution that Mr. Mantle be admitted to a seat as a Senator 
from the State of Montana. Found in the Congressional Record, vol. 25, pp. 687, 688.] 

‘ ‘ Mr. President, this seems to me as simple and plain a question as ever was con¬ 
fused by metaphysics or clouded by legal argument. The Constitution of the United 
States says that when there is a vacancy in this body by death, resignation, or 
otherwise- 

Mr. Mitchell, of Oregon. “ It does not say that. The word ‘death’ is not in the 
Constitution.” 

Mr. Hoar. “Well, ‘resignation or otherwise,’ then. It may be filled when 
caused by resignation or otherwise. As my friend says, ‘death’ is not mentioned; 
and if the word ‘otherwise’ means ‘in the same way as resignation,’ you can not 
fill the vacancy when a Senator dies, according to his suggestion. 

“Mr. President, one of two things is true; either when the framers of the Consti¬ 
tution said ‘otherwise’ they meant ‘in any other way,’ and intended to provide for 
all kinds of vacancy; or the framers of the Constitution meant to provide that there 
should be certain cases, naturally to be expected, easy to be foreseen, impossible not 
to have been thought of by them, in which the States should not be equally repre¬ 
sented in the Senate. 

1 Will anybody doubt that those circumspect and wise and experienced men knew 
very well that State legislatures, bodies who, if their two branches acted separately, 
were to record the action of two artificial beings who were very likely to differ, and if 
they acted as they have done since 1866, in joint convention, were to be composed of 
a number of men who might be divided into three or four parties, and so could not 
agree—is there a member of the Senate who will stand up here and say that he 
doubts seriously that the framers of the Constitution did not mean to anticipate and 
provide for that condition of things? 


LEE MANTLE, OF MONTANA. 


79 


“If they did mean to provide for it, is there a man bold enough to justify his vote 
on this question by announcing that he believes in that case our fathers did not 
mean to have the Senate filled? They provided that ninety-nine one-hundredths of 
the American people could not for ninety-nine hundred or ninety-nine thousand 
years, if this nation should endure so long, under any conceivable circumstance or 
for any conceivable reason, have two Senators for forty-three States and the forty- 
fourth State have but one. The one constitutional impossibility, so far as the wit of 
man could devise, and the power of a national constitution could enact, was that 
when this Senate was to act on the important questions affecting the rights of the 
States and the people two voices should answer for each. 

“Now, that is the whole of it; and when there is a vacancy by resignation or 
‘otherwise,’ a word comprehending every possible or conceivable ease, the governor, 
if the legislature has not done it, is to appoint. Upon the meaning of the word 
‘otherwise’ and upon the truth of these two simple propositions this whole debate 
has, in fact, turned. There have been winding and turning and searching of prece¬ 
dents and splitting of hairs; but when any Senator objecting to the admission of 
Mr. Mantle is asked: Do you admit that the decision in the New Hampshire case 
was right? he is obliged to answer as the Senator from Connecticut [Mr. Platt] 
answered, ‘I voted for it because I thought it would be a hard case, but I have now 
concluded it w$s wrong.’ This is the substance of what the Senator says. 

“Why, Mr. President, the Senator from Connecticut and, I think, one other Sena¬ 
tor sought to convict me of an inconsistency because when in the middle of the 
debate, the question not being before the Senate, when we were discussing some¬ 
thing else (as he thinks, when we were discussing the New Hampshire case), Mr. 
Carpenter, of Wisconsin, asked me if I claimed or thought that if the legislature met 
and separated the governor could then appoint. It was such a case as every lawyer 
in this body is familiar with. Somebody comes up to you when your head is full of 
something else, in the street or in the town meeting, and says: ‘Squire, how would 
it be, supposin’?’ I never heard of the lawyer who admitted that the opinions he 
gave under such circumstances were of much value. Almost as soon as I took my 
seat after that speech, on reflection, I came to the conclusion that I had made an 
erroneous answer, and I have acted on another principle in the Senate ever since. 

“If my honorable thinks that I am to be held in law, or in morals, or in consist¬ 
ency, or in responsibility to public opinion by the answer which I gave to that 
shrewd question put by that shrewd gentleman at that time, what is his condition, 
who comes in here to take back four solemn votes of his own on cases before the 
Senate and in issue—the Bell case, the Blair case, the Marston case, and the Pasco 
case, two of them cast after the most deliberate and solemn debate—a debate partici¬ 
pated in by the great constitutional lawyers of the country? 

“Mr. President, if there were nothing else in this case but these four great and 
recent precedents, I should argue both to the understanding and the conscience of 
the members of this body to stand by them. No court, no legislative body, no tri¬ 
bunal can maintain the respect of the people long that does not maintain its own con¬ 
sistency and that does not regard its own solemn judgments. 

“He and I struggled for half a winter to maintain that principle in the case of Mr. 
Kellogg, of Louisiana, against the gentlemen on the other side of the Chamber, 
angered, possessed with the feeling that Mr. Kellogg had been improperly admitted; 
and when the majority changed and the Democrats came in, they still held (and 
held fast, under the lead of the Senator from Georgia [Mr. Gordon], the Senator 
from South Carolina [Mr. Hampton], and the Senator from Delaware [Mr. Bayard], 
now in honorable service abroad, and the great jurist from Mississippi [Mr. Lamar], 
who recently went to his reward to the grief of all his countrymen North and South) 
to the doctrine of sustaining the deliberate judgments of the Senate. 

“My honorable friend from Connecticut speculates about the possibility of a legis¬ 
lature being influenced by corrupt reasons and refusing to elect a member of this 
body in order that the governor may appoint some ambitious person who is in league 
with him, and he thinks there may be a very bad result from our adhering to the 
solemn judgments of the Senate on that account. I should like to know what pos¬ 
sibility of corrupt influence bringing popular liberty and republican government itself 
into discredit can be greater than the influence which, if this disregard of our 
precedents is established as a policy, will be brought to bear on the members of this 
body to seat or unseat men who have a rightful title to seats here according as they 
expect they will vote one way or the other on some exciting question pending. 

“I think that the attitude of my honorable friend from Connecticut, who has voted 
four times for this doctrine and now seeks to reverse it (honest as every man who 
knows him knows everything he does and thinks is honest), is still an attitude more 
fraught with a graver public danger than any he has suggested as flowing from one 
or the other exposition of the Constitution in this matter. My honorable friend says 


80 


SENATE ELECTION CASES. 


that, although he thinks the New Hampshire cases were wrong, still there is a dis¬ 
tinction between those cases and the one before the Senate. 

“Mr. Platt. I have not said that I thought the New Hampshire cases were wrong. 

“Mr. Hoar. I asked the Senator whether he thought it was a sound constitutional 

decision, and he said, no. . 

“Mr. Platt. I understood the Senator’s question to be on the point as to whether, 
if the case was admitted to be decided on the question that a governor could appoint 
at the commencement of a term, I thought it w T as wrong. 

Mr. Hoar. The Senator thought it was wrong. 

“Mr. Platt. I did not say that. 

“Mr. Hoar. The Senator said he did not think it was right on any ground; but, 
if he thinks so, on what ground? 

“Mr. Platt. I do. 

“Mr. Hoar. On what ground? 

“ Mr. Platt. On the ground that the State of New Hampshire had not had an oppor¬ 
tunity to make the election. 

“Mr. Hoar. Now, just let us look at that a moment and see where the true prin¬ 
ciple comes in. The Senator says if a State legislature has tried its best to make an 
election, as in the case of Montana, where the legislature met and balloted at the 
time fixed, and balloted day after day and week after week, and failed because the 
members of that legislature could not find a man on whom a majority could consci¬ 
entiously agree, an inability which to every just and honest man is absolute in the 
conduct of the affairs of life, he will keep the man out; but -when the whole people 
of a State deliberately put it into their constitution that their legislature shall not 
meet at the proper time and shall not elect at the proper time, so that not only has 
there been no attempt on the part of the legislature to do its duty, but the people 
say that the legislature shall not try to do its constitutional and lawful duty, then in 
such case my honorable friend from Connecticut says of course he will let the man in. 

“The Constitution then, according to my honorable friend from Connecticut, 
is this: When the framers of the Constitution, Oliver Ellsworth, James Madison 
and their associates, said if there is a vacancy ‘by resignation or otherwise,’ they 
did not mean in any other way but in the same way as resignation, if any other 
same way could be conceived of; that they intended that in a certain easily to be 
foreseen condition there should be vacancies in this body, and then further they 
provided that if a State legislature tried its best to elect and could not, the governor 
should not have any power to appoint and the State should go unrepresentated, but 
if the people of a State put it into their constitution that the legislature should' not 
even try to elect a Senator, then it is such a hard case that the man ought to be 
admitted. 

“Mr. President, that is the whole of it. You may discuss and refine and bring 
into this matter the subtlety of dialetics and split hairs, if when the framers of the 
Constitution said, ‘ resignation or otherwise,’ they meant ‘ resignation or any other 
conceivable case,’ then this case belongs to Mr. Mantle. If they meant to narrow 
the provision to the case of a vacancy by resignation or something like it, to the case 
of the abandonment of his post for a good or evil reason by the Senator, and in the 
great field of other possibilities, and intended that the State should lose its equality 
and its sovereignty, and that it should not be represented here, then the case is not 
with Mr. Mantle. 

“If the words, ‘happen by resignation or otherwise,’ include the case at the 
beginning of a term where the State has sent nobody here and it was impossible to 
send anybody here, then this case belongs to Mr. Mantle upon the precedents; but 
if it be sound doctrine that it is a hard case and the State shall be excused and the 
governor shall appoint when it does not try, and the people say the legislature shall 
not try to elect its Senators, then the case is not with Mr. Mantle upon our prece¬ 
dents. If the case be that upon precedent, upon principle, upon authority, the 
people of these three States have a right to have their constitutional voice uttered, 
then for one—other gentlemen will do as they please—I should feel myself degraded 
and man-sworn if I voted to keep them out because I do not like the votes they are 
expected to give.” 

Wednesday, Augustus, 1893. 

Mr. Vance offered the following substitute for the resolution submitted by the 
committee: 

“Resolved, That Hon. Lee Mantle is not entitled to a seat in this body as a Senator 
from the State of Montana.” 

The question of agreeing to the substitute offered by Mr. Vance being submitted 
to the Senate, the same was agreed to by the following vote: 

Yeas—Messrs. Berry, Blackburn, Caffery, Coke, Cullom, Dixon, Faulkner, Gallin* 


LEE MANTLE, OF MONTANA. 


81 


ger, George, Gibson, Gray, Harris, Kyle, Lindsay, McMillan, McPherson, Mander- 
son, Mills, Mitchell (Oregon), Mitchell (Wisconsin), Murphy, Palmer, Pasco, Peffer, 
Platt, Proctor, Ransom, Smith, Stockbridge, Vance, Vest, Vilas, Washburn, White 
(California), White (Louisiana)-35. 

Nays—Messrs. Bate, Butler, Cameron, Carey, Daniel, Davis, Dubois, Frye, Hans- 
brough, Hawley, Higgins, Hill, Hoar, Hunton, Irby, Jones (Arkansas), Jones 
(Nevada), Lodge, Martin, Perkins, Power, Pugh, Roach, Shoup, Squire, Stewart, 
Teller, Turpie, Walthall, and Wolcott—30. 

(Cong. Rec., vol. 25, pp. 688, 689.) 

Mr. Manderson moved to reconsider the vote by which the substitute was agreed 
to. Mr. Vance moved to lay that motion on the table. 

(Cong. Rec., vol. 25, p. 689.) 

The motion to reconsider was laid before the Senate August 24, 1893 (Cong. Rec., 
vol. 25, pp. 782, 783), and August 28, 1893 (Ibid., pp. 989, 994, 995). 

The motion to reconsider the vote by which the substitute offered by Mr. Vance 
was agreed to, was laid on the table by the following vote: 

Yeas—Messrs. Berry, Caffery, Call, Camden, Coke, Cullom, Dixon, Faulkner, Gal- 
linger, George, Gray, Lindsay, McMillan, McPherson, Mills, Mitchell (Wisconsin), 
Murphy, Palmer, Pasco, Platt, Proctor, Ransom, Smith, Stockbridge, Vance, Vest, 
Vilas, Voorhees, Washburn, White (California), and White (Louisiana)—31. 

Nays—Messrs. Bate, Butler, Cameron, Davis, Dubois, Frye, Hansbrough, Hawley, 
Hill, Hunton, Irby, Jones (Arkansas), Jones (Nevada), Martin, Morgan, Peffer, 
Perkins, Pettigrew, Power, Pugh, Roach, Sherman, Shoup, Squire, Stewart, Teller, 
Walthall, and Wolcott—28. 

(Cong. Rec., vol. 25, p. 995.) 

The resolution as amended, as follows— 

“ Resolved , That Hon. Lee Mantle is not entitled to a seat in this body as a Senator 
from the State of Montana”— 
was then adopted by the following vote: 

Yeas—Messrs. Aldrich, Berry, Caffery, Call, Camden, Coke, Cullom, Dixon, 
Faulkner, Gallinger, George, Gray, Lindsay, McMillan, McPherson, Mills, Mitchell 
(Wisconsin), Murphy, Palmer, Pasco, Platt, Proctor, Ransom, Smith, Stockbridge, 
Vance, Vest, Vilas, Voorhees, Washburn, White (California), and White (Louisi¬ 
ana)—32. 

Nays—Messrs. Bate, Butler, Cameron, Davis, Dubois, Frye, Hansbrough, Hawley, 
Higgins, Hill, Hunter, Irby, Jones (Arkansas), Jones (Nevada), Martin, Morgan, 
Peffer, Perkins, Pettigrew, Power, Pugh, Roach, Sherman, Shoup, Squire, Stewart, 
Teller, Walthall, and Wolcott—29. 

(Cong. Rec., vol. 25, pp. 995, 996.) 


Wednesday, August 30, 1893. 

Mr. Pugh submitted the following resolution, which was referred to the Com¬ 
mittee on Privileges and Elections: 

“ Resolved , That there be allowed out of the contingent fund of the Senate, to Lee 
Mantle, the sum of $5,000 in full compensation for all his time and expense in prose¬ 
cuting his claim to a seat in the Senate as a Senator from the State of Montana.” 
(Cong. Rec., vol. 25, p. 1048.) 


Wednesday, September 6, 1893. 

Mr. Vance, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

“The Committee on Privileges and Elections, to whom was referred a resolution 
providing for compensation for Lee Mantle for his time and expense in prosecuting 
his claim to a seat in the United States Senate from Montana, report that he be 
allowed $2,500.” ^ ^ . 

Which report was referred to the Committee to Audit and Control the Contingent 
Expenses of the Senate. 

(Cong. Rec., vol. 25, p. 1238.) 

Thursday, September 7, 1893. 

The foregoing resolution, providing for compensation to Lee Mantle for his time 
and expense in prosecuting his claim to a seat in the Senate of the United States as a 
Senator from the State of Montana, was favorably reported by the Committee to 
Audit and Control the Contingent Expenses of the Senate, and laid over for the day. 

(Cong. Rec., vol. 25, pp. 1300, 1301.) 

S. Doc. 11-6 



82 


SENATE ELECTION CASES. 


Tuesday, September 19, 1893. 

On motion of Mr. Vance, the resolution allowing compensation to Lee Mantle was 
taken up and read, as follows: 

“ Resolved , That there be allowed out of the contingent fund of the Senate to Lee 
Mantle the sum of $5,000 in full compensation for all his time and expense in prose¬ 
cuting his claim to a seat in the Senate as a Senator from the State of Montana.” 

The resolution was reported from the Committee on Privileges and Elections with 
an amendment in line 2, before the word “dollars/’ to strike out “five thousand” 
and insert “two thousand five hundred.” 

The amendment was agreed to. 

The resolution as amended was agreed to. 

(Cong, Rec., vol. 25, p. 1569.) 


83 


ASHEL C. BECKWITH) OE WYOMING. 


[Special session of the Senate March 4, 1893, and first session Fifty-third Congress.] 

ASAHEL C. BECKWITH, of Wyoming. 

The term of Francis E. Warren, Senator from the State of Wyoming, expired on the 3d day of 
March, 1893. The legislature of said State which was in session next preceding the expiration of the 
term of said Francis E. Warren adjourned without an election. March 9,1893, the governor of the 
State of Wyoming appointed Asahel C. Beckwith to fill the vacancy caused by the expiration of 
the term of Mr. Warren. On the 15th day of March, 1893, the credentials of Mr. Beckwith were 
presented and ordered to lie on the table pending the appointment of a Committee on Privileges and 
Elections, and were afterwards referred to such committee. March 27,1893, the Committee on Privi¬ 
leges and Elections made a report affirming the right of Mr. Beckwith to a seat in the Senate as a 
Senator from the State of Wyoming. The report was not adopted, the question in the case being 
substantially the same as in the case of Lee Mantle, supra, and as in the case of John B. Allen, post. 
Under date of July 11,1893, Mr. Beckwith sent to the Senate a communication stating that he had 
resigned his appointment as Senator from the State of Wyoming. 

The history of the case here given consists of a statement of the proceedings in the Senate, as pub¬ 
lished in the Congressional Record, the report of the Committee on Privileges and Elections, and 
the communication from Mr. Beckwith stating the fact of his resignation. 

PROCEEDINGS IN THE SENATE. 

Wednesday, March 15, 1893. 

Mr. Vance presented the credentials of Hon. Asahel C. Beckwith, appointed a 
Senator from the State of Wyoming. He asked that the credentials be read and 
referred to the Committee on Privileges and Elections when appointed, and that 
meanwhile they lie on the table. 

The credentials were read and ordered to lie on the table, as follows: 

“State of Wyoming, Executive Department. 
“To all persons to whom these presents shall come, greeting: 

“Know ye, that the executive of said State hereby appoints Asahel C. Beckwith, 
a duly qualified citizen of said State and an inhabitant thereof, a Senator from the 
said State of Wyoming, to fill the vacancy happening in the Senate of the United 
States by the expiration of the term of Francis E. Warren on the 3d day of March, 
in the year of our Lord 1893, during the recess of the legislature of said State, and 
by the nonelection of said Francis E. Warren’s successor. 

“To have and to hold the said office of Senator of the United States until the next 
meeting of the legislature of said State. 

“ In testimony whereof I have caused these letters to be made patent and the great 
seal of the State to be hereunto affixed. 

“Given under my hand at the city of Cheyenne on the 9th day of March, A. D. 
1893. 

“John E. Osborne, Governor. 

“By the governor: 

“Amos W. Barber, Secretary of State.” 

(Cong Rec., vol. 25, p. 15.) 


Monday, March 27, 1893. 

Mr. Hoar, from the Committee on Privileges and Elections, to whom was referred 
the claim of Asahel C. Beckwith to be admitted to a seat in the Senate from the 
State of Wyoming, submitted a report, accompanied by a resolution, which resolu¬ 
tion was read, as follows: 

“ Resolved, That Asahel C. Beckwith is entitled to be admitted to a seat as a Senator 
from the State of Wyoming.” 

On motion of Mr. Hoar the report and the accompanying resolution were ordered 
to lie on the table. 

(Cong. Rec., vol. 25, p. 33.) 


84 


SENATE ELECTION CASES. 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Vance (chairman), Gray, Pugh, Turpie, Pal¬ 
mer, Hoar, Mitchell of Oregon, Chandler, and Higgins.] 


In the Senate of the United States. 

March 27, 1893.—Ordered to be printed. 

Mr. Hoar, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

The Committee on Privileges and Elections, to whom were referred the credentials 
of Asahel C. Beckwith, claiming a seat in the Senate from the State of Wyoming, 
respectfully report: 

The term of Mr. Warren, Senator from Wyoming, ended March 3, 1893. The 
legislature of said State, who were, under Revised Statutes, sections 14, 15, entitled 

to elect his successor on the-day of-, 1893, adjourned without an election. 

Thereupon the governor of Wyoming, on the 9th day of March, 1893, appointed 
Mr. Beckwith to hold the office of Senator until the next meeting of the legislature. 

We think said appointment valid for the reasons set forth in the report in the case 
of Mr. Mantle, claiming a seat from the State of Montana. 

We recommend the adoption of the accompanying resolution: 

“ Resolved , That Asahel C. Beckwith is entitled to be admitted to a seat as Senator 
from the State of Wyoming.” 


proceedings in the senate. 


Monday, August 7, 1893. 

The Vice-President laid before the Senate the following communication, which 
was read and ordered to lie on the table: 

“ [The Beckwith Commercial Company, merchants. Incorporated 1887.] 

“Evanston, Wyo., July 11, 1893. 

“Dear Sir: Owing to a combination of circumstances over which I had no control, 
I have been obliged to hand in my resignation to Governor Osborne of my appoint¬ 
ment as United States Senator from Wyoming. 

“I beg to remain, your obedient servant, 

“A. C. BECKWITH. 

“Hon. Adlai E. Stevenson, Washington, D. C.” 

(Cong. Rec., vol. 25, p. 198.) 


Wednesday, September 6,1893. 

.The Secretary read the following resolution reported from the Committee on Privi¬ 
leges and Elections: 

“ Resolved, That there be allowed out of the contingent fund of the Senate, to 
A. C. Beckwith, the sum of $2,000, in full compensation for all his time and expense 
in prosecuting his claim to a seat as Senator from the State of Wyoming.” 

The resolution was referred to the Committee to Audit and Control the Contingent 
Expenses of the Senate. 

(Cong. Rec., vol. 25, p. 1238.) 


Tuesday, September 19,1893. 

The Secretary read the following resolution reported from the Committee on Privi¬ 
leges and Elections on the 6th instant: 

a /f'hat there be allowed out of the contingent fund of the Senate, to 

A. C. Beckwith, the sum of $2,000, in full compensation for all his time and expense 
m prosecuting his claim to a seat as a Senator from the State of Wyoming.” 

The Vice-President. An amendment was proposed to this resolution by the Sen¬ 
ator from Wyoming [Mr. Carey], which will be read. 

The Secretary. Inline 2, before the word “dollars,” strike out “two thousand” 
and insert “ two thousand five hundred.” 

After debate, the amendment was rejected and the resolution was agreed to 
(Cong. Rec. vol. 25, pp. 1568 and 1569.) 



JOHN 13. ALLEN, OE WASHINGTON. 


85 


[Special session of the Senate, March 4,1893, and first session, Fifty-third Congress.] 


JOHN B. ALLEN, of Washington. 


The term of John B. Allen, Senator from the State of Washington, expired March 3,1893. The leg¬ 
islature of said State assembled January 9,1893, and finally adjourned March 9,1893, without electing 
a Senator to fill the vacancy occasioned by the expiration of the term of said John B. Allen. On the 
10th day of March, 1893, the governor of the State of Washington appointed said John B. Allen to fill 
the vacancy occasioned as aforesaid. March 20, 1893, the credentials of Mr. Allen were presented in 
the Senate of the United States and referred to the Committee on Privileges and Elections. On the 
27th day of March, 1893, the committee submitted a report in the case, accompanied by a resolution 
that Mr. Allen be admitted to a seat in the Senate asa Senator from the State of Washington. On the 
28th day of August, 1893, an amendment to this resolution was proposed, declaring that Mr. Allen was 
not entitled to a seat in the Senate as a Senator from the State of Washington. The amendment was 
adopted August 28,1893, by a vote of 32 yeas to 29 nays, and the resolution as amended, that Mr. Allen 
was not entitled to a seat as a Senator from the State of Washington, was agreed to without a divi¬ 
sion. This action was taken immediately after the vote was taken in the Senate on the admission of 
Lee Mantle, and was evidently based on the same ground as the action of the Senate in that case. 

The history of the case here given consists of a statement of the proceedings in the Senate in rela¬ 
tion thereto as published in the Congressional Record, the report of the Committee on Privileges and 
Elections, the vote on the motion to amend the resolution reported by the committee, and a state¬ 
ment of the result of the vote on the resolution as amended. 


IN THE SENATE OF THE UNITED STATES. 


Monday, March 20, 1893. 

Mr. Squire presented the credentials of John B. Allen, appointed by the governor 
of Washington a Senator from that State, which were read and referred to the Com¬ 
mittee on Privileges and Elections, as follows: 

“State of Washington, Executive Department. 
“To the President of the Senate of the United States, and to all to whom these 'presents may 

come, greeting: 

“Whereas the term of office of Hon. John B. Allen as a Senator in Congress from 
the State of Washington expired March 3, A. D. 1893; and 

“Whereas the legislature of the State, which assembled January 9, A. D. 1893, 
finally adjourned March 9, A. D. 1893 without electing a Senator in Congress from 
said State to fill the vacancy occasioned by the expiration of the term of Senator 
Allen; and 

“Whereas by reason of the premises a vacancy exists and happens, during the 
recess of the legislature, in the office of Senator in Congress from the State of 
Washington: 

“Now, therefore. I, J. H. McGraw, executive of the State of Washington, by 
reason of the premises, and by virtue of the authority in me vested as such executive 
by the Constitution of the United States, do hereby appoint said John B. Allen, a 
native-born citizen of the United States over the age of 30 years and an inhabitant 
of the State, a Senator in Congress from the State of Washington to fill such vacancy 
until the next meeting of the legislature of the State. 

“ In witness whereof I have hereunto set my hand and caused the seal of the State 
of Washington to be affixed hereto, at Olympia, this 10th day of March, A. D. 1893, 
and of the Independence of the United States the one hundred and seventeenth. 
“[seal.] J. H. McGRAW. 

“By the governor: 

“ J. H. Price, Secretary of Stated’ 

(Cong. Rec., vol. 25, p. 20.1 


86 


SENATE ELECTION CASES. 


Monday, March 27, 1898. 

Mr. Hoar, from the Committee on Privileges and Elections, to whom was referred 
the credentials of John B. Allen, appointed a Senator from the State of Washington, 
submitted a report accompanied by a resolution. The resolution was read, as follows: 

“ Resolved , That John B. Allen is entitled to be admitted to a seat as a Senator from 
the State of Washington.” 

The report with the accompanying resolution were ordered to lie on the table. 

REPORT OF THE COMMITTEE. 

[The committee consisted of the same Senators named in the statement preceding 
the report in the case of Lee Mantle and in the case of Asahel C. Beckwith, supra.] 

In the Senate of the United States. 

March 27, 1893.—Ordered to be printed. 

Mr. Hoar, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report to accompany Senate resolution relative to admitting John B. Allen to a 
seat as a Senator: 

The Committee on Privileges and Elections, to whom were referred the credentials 
of John B. Allen, claiming a seat in the Senate from the State of Washington, respect¬ 
fully report: 

The term of Mr. Allen, Senator from Washington, ended March 3, 1893. The legis¬ 
lature of said State, who were, under Kevised Statutes, sections 14,15, entitled to elect 
his successor, on the 9th day of March, 1893, adjourned without an election. There¬ 
upon the governor of Washington, on the 10th day of March, 1893, appointed Mr. Allen 
to hold the office of Senator until the next meeting of the legislature. 

We think said appointment valid for the reasons set forth in the report in the case 
of Mr. Mantle, claiming a seat from the State of Montana. 

We recommend the adoption of the accompanying resolution. 

“ Resolved , That John B. Allen is entitled to be admitted to a seat as a Senator from 
the State of Washington.’’ 


PROCEEDINGS IN THE SENATE. 


Monday, August 28, 1893. 

Mr. Vance. The case from the State of Washington is pending, and if it is the 
pleasure of the Senate to take it up, I ask that it be now voted on. 

The Vice-President. The resolution will be read. 

The Secretary read the resolution reported by Mr. Hoar from the Committee on 
Privileges and Elections, March 27, 1893, as follows: 

“j Resolved, That John B. Allen is entitled to be admitted to a seat as a Senator 
from the State of Washington.” 

Mr. Vance. I suppose the result can be reached, not by offering a substitute, but 
by taking a direct vote on the report. [“No,” “No.”] 

The Vice-President. The question is on agreeing to the resolution of the committee. 

Mr. Vance. In deference to those who prefer to follow the precedent, I move to 
amend by inserting the word “not.” 

The Vice-President. The amendment proposed by the Senator from North Caro¬ 
lina will be stated. 

The Secretary. After the word “is,” in the first line of the resolution, insert the 
word “not," so as to read: 

“Resolved , That John B. Allen is not entitled to be admitted to a seat as a Senator 
from the State of Washington.” 

The Vice-President. The question is on agreeing to the amendment of the Senator 
from North Carolina [Mr. Vance]. 

The vote on the amendment resulted as follows: 

Yeas—Messrs. Aldrich, Berry, Caffery, Call, Camden, Coke, Cullom, Dixon, Faulk¬ 
ner, Gallinger, George, Gray, Lindsay, McMillan, McPherson, Mills, Mitchell (Wis.), 
Murphy, Palmer, Pasco, Platt, Proctor, Ransom, Smith, Stockbridge, Vance, Vest, 
Vilas, Voorhees, Washburn, White (Cal.), and White (La.)—32. 

Nays—Messrs. Bate, Butler, Cameron, Davis, Dubois, Frye, Hansbrough, Hawley 
Higgins, Hill, Hunton, Irby, Jones (Ark.), Jones (Nev.), Martin, Morgan, Peffer,’ 
Perkins, Pettigrew, Power, Pugh, Roach, Sherman, Shoup, Squire, Stewart, Teller 
Walthall, Wolcott—29. 

So the amendment was agreed to and the resolution as amended was agreed to 

(Cong. Rec., vol. 25, p. 996.) 


JOHN B. ALLEN, OF WASHINGTON. 


87 


Wednesday, August 30, 1893. 

Mr. Squire submitted the following resolution, which was referred to the Com¬ 
mittee on Privileges and Elections: 

“Resolved, That there be allowed out of the contingent fund of the Senate to 
John B. Allen the sum of $5,000, in full compensation for all his time and expense 
in prosecuting his claim to a seat in the Senate as a Senator from the State of Wash¬ 
ington.” 

(Cong. Rec., vol. 25, p. 1048.) 

Wednesday, September 6, 1893. 

Mr. Vance, from the Committee on Privileges and Elections, submitted the fol¬ 
lowing report, which was read and referred to the Committee to Audit and Control 
the Contingent Expenses of the Senate. The report was as follows: 

The Committee on Privileges and Elections, to whonj, was referred the resolution 
providing compensation for John B. Allen for his time and expense in prosecuting 
his claim to a seat in the United States Senate from Washington, report that he be 
allowed $2,500. 

(Cong. Rec., vol. 25, p. 1238.) 

Tuesday, September 19, 1893. 

The Secretary read the following resolution reported from the Committee on 
Privileges and Elections on the 6th instant: 

“Resolved, That there be allowed out of the contingent fund of the Senate to 
John B. Allen the sum of $5,000, in full compensation for all his time and expense 
in prosecuting his claim to a seat in the Senate as a Senator from the State of Wash¬ 
ington.” 

The resolution was reported from the Committee on Privileges and Elections with 
an amendment, in line 4, before the word “dollars,” to strike out “five thousand” 
and insert “ two thousand five hundred.” 

The amendment was agreed to, and the resolution as amended was agreed to. 

(Cong. Rec., vol. 25, p. 1569.) 

After the vote in the Senate in the cases of Lee Mantle and John B. Allen, and 
on the 26th day of September, 1893, Mr. Dubois submitted the following resolution; 
which was read and ordered to be printed and to lie over until the following day: 

‘ ‘ Whereas several sovereign States are without full representation in the Senate, 
which they are entitled to: Therefore, be it 

“Resolved, That the consideration of legislation relating to the Federal election 
laws, tariff, and finance, matters which materially affect the partially unrepresented 
States, be postponed in the Senate until Monday, the 15th day of January, 1894, to 
enable the States of Washington, Montana, and Wyoming to have the votes, influ¬ 
ence, and protection in the Senate which are guaranteed to each sovereign State by 
the Constitution of the United States.” 

(Cong. Rec., vol. 25, pp. 1776, 1777.) 

On Wednesday, September 27, 1893, the foregoing resolution was laid before the 
Senate and debated, but no vote was taken thereon. 

(Cong. Rec., vol. 25, pp. 1828-1838.) 

[Extracts from remarks of Mr. Dubois in support of the resolution introduced by him that the con¬ 
sideration of legislation relating to the Federal election laws, tariff, and finance be postponed in 

the Senate until Monday, the 15th day of January, 1894. Found in the proceedings of September 

27,1893, in the Congressional Record, vol. 25, pp. 1829, 1830.] 

“Mr. President, it seems to me that this resolution is very appropriate and germane 
at this time. It is worthy the most serious consideration of the Senate. Here are 
three States deprived of their importance and strength when matters of weighty 
moment to them are being discussed, preparatory to being decided upon. It is no 
fault of the people of these States that they are not fully represented here. It is their 
misfortune, which you can cure. 

“In two of the three States there were three political parties represented in the 
legislature in such proportions that neither party had a majority, and, in consequence, 
an election should not have been had. In the other, one party had a majority, but 
individual ambitions and animosities prevented an election. It is quite likely that a 
strong belief that the governor had the power to appoint a Senator temporarily in 
case the legislature failed to elect may have influenced some legislators. 

“It was not the intention of the people of these States that they should have but 
one Senator here. The great interests which these communities have in the pending 
and contemplated legislation precludes such an idea. Scarcely any States are more 
concerned about tariff legislation than Washington and Wyoming, while both have 
even greater interest in any legislation relating to financial matters. The very life¬ 
blood itself of Montana is in its mines, while it will also be directly affected by any 
tariff laws which may be passed. 


88 


SENATE ELECTION CASES. 


“This Senate decided that, under the conditions which existed, the appointees of 
the governors of these three States were not entitled to seats in the Sena . I do not 
wish nor intend to criticise that decision. You will recall, however, that a majority 
of the Committee on Privileges and Elections voted in favor of seating the governors 
appointees, and that the Senate rejected them by a bare majority of three, obtained 

with great difficulty. . , _ . , ,, . 0 

“The report of the majority of the committee was submitted by the senior Senator 
from Massachusetts [Mr. Hoar], who also supported the report in remarks of great 
clearness and strength. 

****** 

“The majority of the Committee on Privileges and Elections submitted their 
report through the Senator from Massachusetts and say: 

“ ‘ We think said appointment valid. 

“‘The provisions of the Constitution, under which this question arises, are as 
follows (Art. I, sec. 3): 

“ * “ The Senate of the United States shall be composed of two Senators from each 
State, chosen by the legislature thereof, for six years; and each Senator shall have 
one vote.” 

* 1 ‘ What is the great and leading purpose which the provisions now under consider¬ 
ation was designed to accomplish? It is that the Senate of the United States shall 
be full, always full. Each State was to be represented there by two Senators. No 
State was ever to be deprived of its equal vote in the Senate, except by its own con¬ 
sent to a change in the Constitution itself.’ 

“The report says further: 

“ ‘ The equality of the State representation in the Senate, which can only be secured 
by keeping both seats full, is of first importance. But the presence of two Senators 
instead of one is a consideration of very great importance indeed. There are a few 
members of that body whose party feeling would carry them so far as to induce them 
to prefer the absence of a colleague to the presence of one of opposite political faith. 
There are a thousand occasions when the power of consulting with an associate 
devoted to the interests of the same community, and conversant with its wishes, is of 
inestimable importance. ’ 

******* 

“I will further say that, every Senator agreeing that the Constitution intended that 
each State should be represented by two Senators at all times, I submit in all candor 
that we should postpone the consideration of questions of such great importance to 
these partially represented States as are now pending until they have an opportunity 
to be fully represented. 

“If the statement should be made that there is no measure before the Senate to 
change the Federal election laws or remodel the tariff, the answer is that it is well 
known that the question of changing the election laws is now being debated in the 
other House, and that in all probability the measure will reach the Senate long before 
the bill which is being discussed here relating to finance is brought to a vote. It is 
also well known that tariff hearings are being had before the Ways and Means Com¬ 
mittee of the other House, as a preliminary to the framing and passing of a new tariff 
bill. 

“If it be urged that the legislatures of these States will not be called together or 
if called together will not elect, the answer is that the Senate of the United State will 
have done its patriotic duty in endeavoring to preserve the rights guaranteed to those 
States by the Constitution. I have no reasonable doubt myself that the governor 
and legislatures of these States will lay aside every other consideration save that of 
duty to their respective States and have their full quota of Senators here at the 
appointed time if you pass the resolution which I have proposed. 

“The legislatures have not been called together, it is true, but that is easily 
accounted for. There is a widespread opinion throughout those States, reflected in 
their newspapers, that the unseating of the applicants from those States was part of 
a plan to deprive them of a portion of their representation and then force measures 
through here inimical to their interests. I do not subscribe to those views; I repudi¬ 
ate them; but that is the prevalent opinion throughout that section of the country; 
and in consequence of that the legislatures of those States have not been called, in 
addition, of course, to the fact that it will be difficult to elect under the conditions 
which exist in the legislatures. 

***** * * 

“I will close by saying that our forefathers constructed the Constitution on broad 
and patriotic principles, having always in view the rights of individuals and States 
and we should be imbued with the same spirit in interpreting the Constitution. It 
were better than this legislation should fail than that we should be open to the 
suspicion of having used the power of numbers to wrong three sovereign States.” 


89 


HENRY W. CORBETT, OF OREGON. 


[Fifty-fifth Congress—First and second sessions.] 

HENRY W. CORBETT, of Oregon . 

The term of John H. Mitchell as a Senator from the State of Oregon expired March 3, 1897. Under 
the constitution and laws of the State of Oregon, the legislature of said State convened January 11, 
1897. On that day the senate, constituting one branch of such legislature, met and effected a perma¬ 
nent organization. The house, constituting the other branch of said legislature, met on the same 
day and effected a temporary organization, and at a later day attempted a permanent organization, 
but its validity was in dispute and the house as thus organized was not recognized by the coordinate 
branch of the legislature—the senate—nor by the executive branch of the government of the State. 

During the last week of February, 1897, both branches of the legislature dispersed and the mem¬ 
bers returned to their homes without having transacted any business of a legislative character. 
There was no election of a United States Senator by concurrent vote. What was claimed to be a law¬ 
ful joint assembly was held; but that joint assembly did not elect a Senator and adjourned without 
day on the 24th day of February, 1897. 

On the 6th day of March, 1897, Henry W. Corbett was appointed by the governor of the State of 
Oregon United States Senator to fill the place made vacant by the expiration of the term of Hon. 
John H. Mitchell. 

The credentials of Mr. Corbett were presented in the Senate on the 15th day of March, 1897, and 
were referred to the Committee on Privileges and Elections. On the 19th day of March, 1897, a state¬ 
ment signed by the governor and the secretary of state of the State of Oregon was presented in the 
Senate and was referred to the Committee on Privileges and Elections. 

On the 26th day of January, 1898, the committee submitted a report accompanied by a resolution 
that Mr. Corbett was not entitled to a seat in the Senate as a Senator from the State of Oregon. A 
majority of the committee were of the opinion that under the decisions of the Senate in several like 
cases, the case of Mr. Corbett called for the application of the rule of stare decisis, the point in the 
case being “whether the executive of a State can appoint a Senator to fill a vacancy caused by the 
expiration of the regular term of a Senator when the legislature chosen next preceding the expira¬ 
tion of the term fails to elect a Senator to fill such vacancy.” 

A minority of the committee were of the opinion that the appointment of Mr. Corbett was legal 
and entitled him to a seat in the Senate. 

After the question of the right of Mr. Corbett to a seat in the Senate had been thoroughly debated, 
the resolution reported by the committee was adopted by a vote of 50 yeas to 19 nays. 

The history of the case here given consists of a statement of the proceedings in the Senate in such 
case as published in the Congressional Record, the report of the Committee on Privileges and Elec¬ 
tions, the views of the minority of the committee, a statement of the days on which the question 
was debated in the Senate, with a reference to the record of the same as published in the Congres¬ 
sional Record, extracts from the remarks of certain Senators in such debate, the vote on the amend¬ 
ment offered to the resolution submitted by the Committee on Privileges and Elections, and the vote 
on the resolution declaring Mr. Corbett not entitled to a seat in the Senate as a Senator from the 
State of Oregon. 

PROCEEDINGS IN THE SENATE. 


Monday, March 15, 1897. 

Mr. McBride presented the credentials of Henry W. Corbett, appointed by the 
governor of Oregon a Senator from that State. 

The credentials were read and referred to the Committee on Privileges and 
Elections. 

(Cong. Rec., vol. 30, pp. 11, 12.) 

Friday, March 19, 1897. 

Mr. Chandler presented a statement signed by the governor and secretary of state 
of Oregon, which was read and referred to the Committee on Privileges and Elections. 

(Cong. Rec., vol. 30, p. 66.) 

Tuesday, March 30, 1897. 

Mr. McBride presented a certificate from the governor of Oregon, amending the 
credentials of Henry W. Corbett, appointed a Senator from that State. The amended 
credentials were read and referred to the Committee on Privileges and Elections. 

(Cong. Rec., vol. 30, pp. 460, 461.) 

January 26, 1898. 

Mr. Caffery presented the report of the Committee on Privileges and Elections in 
the matter of the claim of Henry W. Corbett to a seat in the Senate as Senator from 
the State of Oregon. The report was received and ordered printed in the Record. 

Subsequently Mr. Hoar presented the views of the minority of the committee, 
which were ordered printed in connection with the report of the committee. 

(Cong. Rec., vol. 31, pp. 1017, 1018.) 


90 


SENATE ELECTION CASES. 


REPORT OF THE COMMITTEE. 

[The committee consisted of Messrs. Chandler (chairman), Hoar, Burrows, Pritch¬ 
ard, Spooner, Faulkner, Caffery, Allen, and Pettus.] 

Report (to accompany Senate Res. No. 253): 

The Committee on Privileges and Elections, to whom were referred the credentials 
of Henry W. Corbett, claiming a seat in the Senate from the State of Oregon, respect¬ 
fully report: 

The term of Hon. John H. Mitchell, Senator from Oregon, ended March 3, 1897. 
The nineteenth biennial session of the legislature of Oregon, under the constitution 
and laws of that State, was to convene at the capital on the 11th of January, 1897. 
On that day the senate met and effected a permanent organization. The house met 
on the same day, effected a temporary organization, and at a later day effected a 
permanent organization. There was no recognition of the house by the executive 
branch of the government, or by the coordinate branch of the legislature, the senate. 

The members of the senate and house dispersed and returned to their homes with¬ 
out having transacted any business of a legislative character. It thus appears that 
the legislature of Oregon deliberately refused to perform any of the functions with 
which they were charged, one of the most important being the election of a Senator 
to succeed John H. Mitchell. 

We are of the opinion that a series of decisions by this body on the point involved 
in this case forms the rule of stare decisis. 

The point of the case of Mr. Corbett is whether the executive of a State can appoint 
a Senator to fill a vacancy caused by the expiration of the regular term of a senator 
when the legislature chosen next preceding the expiration of the term fails to elect 
a Senator to fill such vacancy. 

In the Lee Mantle case, decided by this body in 1893, the legislature of Montana 
adjourned the day before the vacancy occurred by the expiration of the term of Mr. 
Sanders, after having ineffectually balloted to elect his successor. 

In the case of Mr. Corbett the legislature did not even make the attempt to elect. 
In the case of Mr. Mantle the legislature made the attempt and failed. 

Your committee are of the opinion that there is no essential difference between 
the two cases. In both cases opportunity was afforded to the respective legislatures 
to perform their constitutional duty. They did not perform that duty. Whether 
because of failure to organize, as is alleged, but not substantiated, or because after 
organizing they failed to agree on a choice, does not affect the fact that opportunity 
was given in both cases to elect, of which they did not avail themselves. 

The case of Kensey Johns, of Delaware, decided in 1794; of James Lanman, of 
Connecticut, decided in 1825; and of Lee Mantle, of Montana, decided in 1893, are 
on all fours with the case of Mr. Corbett. They were decided after full presentation 
and exhaustive argument. They decide that an executive appointment can not be 
made when the legislature had opportunity to elect and failed to elect. 

There is no precedent of any weight against the authority of these cases. There 
have been appointments by governors when the legislature had not the opportunity 
to elect, and when the apparent hardship of depriving the State of a Senator operated 
to their admission, but your committee do not think that they have any weight in 
the solution of the question presented by this case. 

Going outside of precedent, and interpreting the Constitution according to the 
accepted rule that the primary meaning of words is to be followed when there is 
nothing in the context to show that a secondary meaning is intended, and that gen¬ 
eral words take on the meaning of the special words, we are of the opinion that the 
“vacancies” mentioned in article 1, section 3, of the Constitution are those occurring 
in like manner as “resignation,” i. e., by fortuitous event. 

We are of the opinion that it would be a dangerous usurpation of power for a gov¬ 
ernor to appoint to fill a vacancy occurring by the expiration of a regular term in 
this body; one not sanctioned by the Constitution, and not supported by controlling 
precedent or convincing reason. 

We therefore recommend the adoption of the following resolution: 

“Resolved, That the Hon. Henry W. Corbett is not entitled to take his seat in this 
body as a Senator from the State of Oregon. ’ ’ 

D. CAFFERY. 

WM. V. ALLEN. 

J. C. BURROWS. 

I concur in the conclusion of the majority of the committee, and submit herewith 
my opinion. 


E. W. PETTUS. 


HENRY W. CORBETT, OF OREGON. 


91 


IN THE MATTER OF MR. HENRY W. CORBETT’S CLAIM TO A SEAT AS SENATOR FROM THE 

STATE OF OREGON. 

I prefer to put my concurrence in the conclusion of the majority of the committee 
squarely and entirely on the ground that the question of law involved in this case 
was settled in the Mantle case, and ought to remain settled forever. 

In the great debate in the Mantle case, which extended at intervals from March to 
August, 1893, the senior Senator from Massachusetts said: 

‘ k I am gratified that this question now arises under circumstances where it can be 
settled without any thought or imputation of partisanship upon any Senator deliver¬ 
ing his judgment; because, although it happens there are two Republicans and one 
Democrat affected by these reports, there is a Senator in this body who took his seat 
on the 4th of March without question, whose title depends upon virtually the same 
thing.” (25 Cong. Rec., pt. 1, p. 43.) 

And in the same debate the then junior Senator from Indiana, in the same line of 
conservative wisdom, said: 

“It would be perhaps as fair a way as any to treat this as a case of first instance, 
the same as if no decision had been made upon it, and to remit the present court, the 
members of this body sitting in judgment, to the text of the Constitution itself, to 
the letter of the passage relating to the appointing power, and the spirit of the con¬ 
text in which it is found, and the tenor and purpose of the whole instrument.” 
(Ib., 68.) 

The courts of England for centuries and the United States for one century declared 
it far better that the law should be settled and known than that it should be decided 
with technical accuracy. Those who have studied the judicial legislation enacted 
during the last forty years, the overthrow of principles long deemed settled, will 
appreciate the wisdom of the maxim, Stare decisis. 

I think the question in this case was settled in the Mantle case, and should remain 
settled. 

E. W. PETTUS. 


VIEWS OF THE MINORITY. 

The undersigned respectfully dissent from the opinion of the majority, and briefly 
state their reasons. 

The term of John H. Mitchell, Senator from the State of Oregon, expired at noon 
on the 4th day of March, 1897. The members of the legislature who were entitled 
to elect a successor assembled on the 11th day of January, 1897. The senate com¬ 
pleted a lawful permanent organization. That day the house attempted such an 
organization, but its validity was in dispute and for a time there were two bodies, 
each claiming to be the lawful house. There was never any election of a Senator by 
concurrent vote. What was claimed to be a lawful joint assembly was held; but 
that joint assembly never, ^elected a Senator, and adjourned without day on the 24th 
of February, 1897. There were certain proceedings under which it was claimed that 
there was a due organization of the house. During the last week of February, 1897, 
both senate and house, whichever body be treated as the lawful house, dispersed 
and were declared by their respective presiding officers adjourned without day. 
Thereafter, on the 6th day of March, 1897, Mr. Corbett was appointed to the 
vacancy by the governor. It seems clear that there was a recess of the legislature 
of Oregon on the 3d of March, 1897, and that there has been one ever since. The 
only question is of the power of the governor to make a temporary appointment. 

It is clear, whatever may have been the nature of the organization of the legisla¬ 
ture, that it had dispersed and come to an end before the 3d day of March, 1897, 
when the vacancy in the office of Senator took place bv the limit of the term to 
which Mr. Mitchell had been chosen, and which he had held for six years. Any 
choice or appointment made after that time must be a choice or appointment for 
less than six years. The constitutional provision for the choice of Senators is as 
follows: 

“Art. 1, Sec. 3. The Senate of the United States shall be composed of two Sena¬ 
tors from each State, chosen by the legislature thereof, for six years; * * * if 
vacancies happen, by resignation or otherwise, during the recess of the legislature of 
any State, the executive thereof may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancies.” 

It is well settled, by a practice which has existed from the foundation of the Gov¬ 
ernment, that vacancies so occurring after the beginning of a constitutional term 
may be filled by the legislature. If that be true they may be filled by the executive 
of the State during the recess of the legislature. The legislature is only authorized 
by the Constitution to fill such vacancies as might be filled by the executive by 


92 


SENATE ELECTION CASES. 


temporary appointment until the next meeting of the legislature. So if the executive 
have no power the legislature has no power. The executive may lawfully make a 
temporary appointment and the legislature fill that vacancy when it assembles, or 
the office must remain vacant for the rest of the six years. It has been said that a 
vacancy does not happen when it occurs by reason of the expiration of a certain 
term or when the office has never been filled. But the Constitution uses the same 
language in When vacancies happen in the representation from any State the executive 
authority thereof shall issue 'writs of election to fill such vacancies. {Art. 1, sec. 2 .) 

When the term of a Representative expires and the people have failed to elect a 
successor beforehand, which occurred very often when a majority was required for 
an election, the executive has always issued a writ of election to such vacancy as of 
course. 

The provision as to executive offices is as follows: 

“The President shall have power to fill up all vacancies that may happen during 
the recess of the Senate, by granting commissions, which shall expire at the end of 
their next session.’’ (Art. 2, sec. 2.) 

It is now well settled by long and uniform practice that this power exists when a 
vacancy happens in the constitutional sense, if the term of office limited by law 
expires during the recess of the Senate, or if a new office has been created which has 
never been filled, and the President makes the appointment in such case. 

We think, therefore, that the governor of Oregon was entitled to make the appoint¬ 
ment, and that Mr. Corbett is entitled to the seat. 

GEO. F. HOAR. 

WM. E. CHANDLER. 

J. C. PRITCHARD. 

JOHN C. SPOONER. 

(Cong. Rec., vol. 31, pp. 1017, 1018.) 

The report of the Committee on Privileges and Elections and the views of the 
minority of the committee were debated in the Senate January 31,1898 (Cong. Rec., 
vol. 31, p. 1243), February 3, 1898 (ibid., pp. 1382-1389), Februarv 8, 1898 (ibid.,pp. 
1535-1543), February 9, 1898 (ibid., pp. 1585-1588), February 10, 1898 (ibid., p. 
1611), February 16, 1898 (ibid., p. 1763), February 17, 1898 (ibid., pp. 1828-1832), 
February 24, 1898 (ibid., pp. 2119-2133), February 25, 1898 (ibid., pp. 2160-2184), 
February 26, 1898 (ibid., pp. 2219-2223 and 2225-2230), and February 28, 1898 (ibid., 
pp. 2262-2274). 

[Extracts from remarks of Mr. Caffery in support of the resolution reported by him from the Com¬ 
mittee on Privileges and Elections, declaring Mr. Corbett not entitled to a seat in the Senate. 

Found in the proceedings of February 3,1898, in the Congressional Record, vol. 31, p. 1389.] 

“ Mr. President, the proposition broadly laid dow T n in the case of Mantle, which, 
with the case of Kensey Johns and that of Lanman, I contend, from the rule of 
stare decisis, is that where the legislature has an opportunity to elect and fails to elect, 
a governor can not appoint; but the reasoning in the cases goes beyond the facts, and 
points to the conclusion that under no circumstances can the governor appoint to fill 
an original vacancy commencing at the beginning of a term. 

“It may be obiter to travel outside of the facts of a particular case and express an 
opinion upon matters not strictly necessary to the decision of the case in hand, but 
certainly, so far as the facts of this case go, they square with the facts of the Lanman 
Gase and the Kensey Johns case and the Mantle case. 

“The adjudication of the Senate in these cases of Johns, Lanman, and Mantle 
forms the rule of stare decisis; and I ask where, under what circumstances, and under 
what conditions, could there be a more opportune application of the rule than in the 
adjudications by this body of the right of a member to fill a seat herein? 

“We are called upon to perform a high constitutional duty; we are judges of the 
qualifications and elections of our members; and in the discharge of that duty in a 
particular case we must consult the Constitution; we must interpret that instrument 
according to our best judgment and our best ability; we must bring to bear upon the 
question not only the light of learning and jurisprudence but the aid' of an enlightened 
conscience. 

“Therefore it is, I say, Mr. President, that the rule of stare decisis as applied to the 
right of a seat in this body is of more importance than the application of rule to the 
judgments of courts deciding upon contracts and titles to property between private 
individuals. Here are three cases which, in my opinion, are on all fours with each 
other, that decide the point squarely and fairly, and there can be no evasion of their 
force as precedents. 

“Mr. President, even if the legislature of Oregon was not technically organized, 
can this body tolerate such wanton disregard of legislative duty in order that the 
executive of a State may come in and do away with the performance of the duty of 


HENRY W. CORBETT, OF OREGON. 


93 


a legislature by discharging it himself? Is there any constitutional duty of this kind 
that can be transferred, either by direct act or by indirect method, from the legisla¬ 
ture to the governor? 

‘ 4 1 contend that the legislature of Oregon had ample opportunity, had ample 
power, to fill the vacancy arising from the expiration of the term of Hon. John H. 
Mitchell, and whether by intrigue, whether by political combination, whether by a 
total and flagrant disregard of its duty, it failed to elect a Senator when it was within 
its power and opportunity to so elect, no other authority or power can constitution¬ 
ally perform a function and discharge a duty with which it was exclusively charged. 

“ I think it would be giving a premium for legislatures to disregard their duty; is 
would be giving a premium for cabals and intrigues and combinations of variout 
kinds to prevent the action of legislatures in order that governors of States might 
appoint their personal favorites, if the Senate would admit their appointees under 
the circumstances of this case. 

“Mr. President, the legislatures are the great constituencies of this body. I would 
be loath to see these constituencies changed; but if anything would convince the 
American people that there ought to be a change, it would be the premium placed 
upon the disregard of legislative duty by the Senate of the United States in admit¬ 
ting the appointees of governors to seats in this body who ought only to hold their 
seats, under such conditions as surround the case of Mr. Corbett, by legislative 
election.’ ’ 

[Extracts from letter written by Henry W. Corbett to Mr. Chandler in relation to the claim of 
Mr. Corbett to a seat in the Senate. Fonnd in the proceedings of February 8, 1898, in the Congres¬ 
sional Record, vol. 31, pp. 1535, 1536,.1537.] 


“Washington, February 7, 1898. 

“Dear Sir: Since the meeting.of your committee in May last, and since my brief 
was submitted to you at that time, other thoughts have presented themselves to my 
mind which I desire to lay before you in the following brief statement for your con¬ 
sideration and that of the Senate if, in your judgment, you think it worthy of perusal. 
I therefore review the case as briefly as I can, without trespassing too much upon 
your valuable time. 

“ (I quote from Ex. Doc. No. 62.) 

“The members elected to the legislature of Oregon assembled at Salem, the seat 
of government, on the 11th of January, 1897. The senate effected a permanent 
organization with its 30 members. The house likewise assembled and appointed 
a committee on credentials, electing the usual officers for temporary organization 
until such time as said committee should report. 

“The members of the house continued to meet from day to day until January 21, 
and on each day up to that date the temporary speaker declared that ‘ there being 
no quorum present, and there having been no report from the committee on creden¬ 
tials, the house could take no action upon any resolution.’ On that day the tem¬ 
porary speaker of the house was removed by a resolution offered by one of its 
members (Mr. Brown). The temporary speaker having declined to entertain the 
motion, no quorum being present, Mr. Brown put the question, and Mr. Smith, hav¬ 
ing received a majority of the votes cast, was duly elected temporary speaker of the 
house of representatives in place of Mr. Davis, and assumed the chair beside the for¬ 
mer temporary speaker, and thereafter, on the same day, 31 members took the oath 
of office. 

“On the 18th of February the pretended organization of the house offered house 
resolution No. 16, declaring the seats of 29 of the members vacant, by reason of their 
not having taken the oath of office. 

******* 

“On the 19th of February 28 members assembled, 4 being absent and 28 not having 
qualified. On the same day, on a call for a vote on this resolution, the yeas and nays 
were taken, and it was adopted by a vote of 16 yeas to 11 nays. On the 23d of Feb¬ 
ruary the house passed a resolution to adjourn on Wednesday, February 24, 1897, on 
which day they adjourned, or dissolved, and the members went to their homes. 

“On the 3d of February the house attempted to organize the joint assembly, at 
which time there were present 11 members of the senate and 29 members of the house, 
40 in all. As part of the proceedings on that occasion there was read the following 
(see Ex. Doc. No. 62, p. 66): 


94 


SENATE ELECTION CASES. ' 


‘February 2, 1897. 

“ ‘By unanimous consent Senator Brownell introduced senate resolution No. 19. 

“ ‘Senate resolution No. 19. 

“ ‘ Resolved , That the senate now proceed openly by viva voce vote of each member 
present to name one person for Senator in Congress from the State of Oregon for the 
full term commencing March 4, 1897. 

“ ‘The president ruled: “In view of the fact that no organization of the house of 
representatives has yet been effected, and the act of Congress regulating the time and 
manner of electing Senators in Congress providing that such vote shall be taken on 
the second Tuesday after the meeting and organization of the legislature, the resolu¬ 
tion is not in order and can not be entertained at this time by the senate.” 

“ ‘Senator Brownell appealed from the decision of the chair. After a full discus¬ 
sion, the yeas and nays were called for by Senators Brownell, Johnson, and Driver, 
the question being: 

“ ‘ “Shall the decision of the chair be sustained and stand as the judgment of the 
senate?” 

“ ‘On this question the roll was called, and the vote was: 

“ ‘Yeas, 16. 

“ ‘Nays, 12. 

“ ‘Absent, 1. 

“ ‘Not voting, 1. 

“ ‘So the decision of the chair was sustained, and the senate declined to consider 
senate resolution No. 19.’ 

******* 

“There were at no time present, as appears from this executive document, to exceed 
40 members in attempted joint convention, and there were only present and voting 
in the pretended organization of the house to exceed 33 members, whereas section 3, 
article 4, of the constitution of the State of Oregon provides that ‘ the house of rep¬ 
resentatives shall consist of 60 members.’ Section 12 of the same article provides 
that ‘two-thirds of each house shall constitute a quorum to do business.’ The same 
section says that ‘ a quorum must be in attendance before an organization thereof 
can be effected.’ Two-thirds of 60 being 40, it is necessary that 40 members should 
assemble together to constitute a quorum and effect an organization or transact any 
other business, and must be properly organized before proceeding to vote for a 
United States Senator or passing any laws. 

“The Constitution of the United States provides that ‘no State shall be deprived 
of equal representation in the Senate,’ while Article I, section 3, of the said Consti¬ 
tution provides: 

“ ‘If vacancies happen by resignation or otherwise during the recess of the legisla¬ 
ture of any State, the executive thereof may make temporary appointment until the 
next meeting of the legislature, which shall then fill such vacancy.’ 

“The word ‘happen’ has been commented upon as not embracing such a case as 
that now before the senate for consideration. My contention is that a resignation is 
a voluntary act, as stated by Senator Edmunds in his debate on the Bell case on the 
10th of April, 1879, as follows: 

“ ‘The word “happen,” it has been said, means a casualty, a contingency. So it 
does. It also means anything that takes place or occurs, that comes to pass. By 
what authority do constitutional lawyers, when a word of several meanings is used 
which includes several particulars within those meanings, say that it means half of 
what it means by the dictionary and by the common understanding of mankind now, 
as it was then? By what species of law or of logic are we to be told that a word is 
to be shorn of half its meaning? The Constitution does cover the case of a death, 
updoubtedly. That happens. It happens much more than a resignation does. A 
resignation, in the sense of chance, does not happen at all—in that sense “happen,” 
because a resignation does not come by chance. It comes by the free will of the 
person who is competent to make it. Therefore, in order to give “resignation” any 
force in that sense as having happened, you must take some other meaning of the 
word than chance or casualty, because it is neither chance nor casualty. It is just 
as much the definite and public act of the person who has the right to make it as 
the passage of an act of Congress is by this Congress, precisely. It is an act of 
deliberate free will, and if it were not it would be void.’ 

“I contend that a failure to elect by a legislature, either by resignation of that 
body before an election occurs, or by the failure of the legislature to organize and 
elect before the vacancy occurs, is as much a voluntary act of the legislature as is the 
resignation of a Senator. If we are to be guided strictly by this meaning and elimi¬ 
nate the words of the Constitution ‘or otherwise,’ it would seem to exclude even 


95 


HENRY W. CORBETT, OF OREGON. 


the death of a Senator. Therefore we contend that it must be given a broader mean¬ 
ing than has been attempted to be conveyed by others who have discussed this 
question. I find no warrant in the Constitution for refusing to seat a Senator who 
has been appointed by the governor of his State to fill a vacancy occurring during a 
recess of the legislature. 

“The members of the legislature of Oregon met on the 11th of January. The 
house, failing in obtaining a quorum, dispersed on the 24th of February, and the 
senate on the 2d of March, the forty days having expired for which they could only 
receive pay. The vacancy occurred on the 4th of March, at 12 o’clock m., and the 
governor appointed the applicant on the 6th of March. The governor sets forth in 
his certificate that there has been no legal legislative session since the biennial ses¬ 
sion of 1895. Therefore, there being no legislature, as stated, this case comes clearly 
within the precedents established in the early history of the Government and cited 
in my brief (see p. 22) in the case of William Cooke, of Tennessee, 1797; Uriah 
Tracy, of Connecticut, 1801; William Hindman, of Maryland, 1801; Samuel Smith, 
of Maryland, term expiring 1803; Aaron Ogden, of New Jersey, 1803; Joseph Ander¬ 
son, of Tennessee, 1809; Charles Cutts, of New Hampshire, 1813; John Williams, of 
Tennessee, 1817; all of whose terms expired on March 3 of the respective years. 

“I see no warrant or provision in the Constitution whereby the Senate is author¬ 
ized to discipline a State for not electing a Senator, even when there has been a 
legally organized legislature, and certainly not when there has been no legal organ¬ 
ization of the legislature under the constitution of the State of Oregon under which 
it was admitted as a member of the Union. The Constitution of the United States 
provides how such a legislature shall be disciplined and what shall be the remedy in 
case of a failure to elect (the vacancy occurring during its recess), namely, that in 
such an event the governor may appoint to fill the vacancy, by temporary appoint¬ 
ment to fill such vacancy until the meeting of the next legislature. 

“Factions will exist, parties will differ, in some cases the choice of Senators will 
be delayed, and it is impossible to meet all the contingencies that may arise in this 
connection without an amendment to the Constitution providing for the election of 
United States Senators by the people. Therefore, until that action is taken I can 
not see how the Senate can deprive a State of equal representation therein. The leg¬ 
islature is elected by the people. The governor is likewise elected by the people, 
and the same obligation rests upon him as upon the legislature for keeping the State 
fully represented in the Senate. 

“To me, personally, it is a question of little moment, but the right of a State to 
equal representation in this body can not be denied, in my judgment, properly, as 
many cases will arise in the future where a great injustice to such States will be 
done. It may not be inappropriate for me to state that this appointment was tendered 
without solicitation or authorization on my part to solicit the same for me through any 
other person or party, and so far as intimation has been made that a combination was 
entered into with the governor to defeat the election of a Senator for the purpose of 
my appointment, it is entirely unwarranted and untrue, and no one would impute 
such motives to our governor, who has sacrificed some of the best years of his life in 
the defense of his country, has served with honor and distinction as a judge of the 
supreme court of our State, and who lives in a modest way in his little cottage, and 
all that he has—or mainly so—is his good name and reputation, which he has hon¬ 
orably maintained for years past in our community. I trust you will excuse me for 
alluding to this personal matter, and I should not have done so had it concerned 
myself alone, but when such motives are insinuated or imputed to the honorable 
executive of our State it is due to him that I should publicly make this statement. 

“In closing I quote from a letter from Hon. George F. Edmunds, one of the best- 
known constitutional lawyers, who says that the appointee is entitled to his seat, 
that ‘ this case comes clearly within the letter and spirit of the Constitution.’ 

“Very respectfully, 

“H. W. Corbett. 

“Hon. William E. Chandler, 

“ Chairman of the Committee on Privileges and Elections , United States Senate .” 


[Extracts from remarks of Mr. Pettus in support of the resolution declaring Mr. Corbett not entitled 
to a seat as a Senator from the State of Oregon. Found in the proceedings of February 9, 1898, in 
the Congressional Record, vol. 31, pp. 1586,1587.] 

“Mr. President, I propose to prove that the question now before the Senate has 
been decided in such a way that it ought to remain settled forever. I do not mean 
when I say the case has been decided that it has been decided once or twice or three 
times and therefore ought to remain settled, but it has been decided in such a way 
as that the Senate ought to be willing to allow the law to be known. It is nothing 
but a question of law. 


96 


SENATE ELECTION CASES. 


“In the first place, in the case of Kensey Johns, the first of the election cases in 
the Senate, the identical question we are now considering was decided, and not only 
decided, but in the decision the Senate gave the reason for the decision, and that 

reason is stated in the resolution. . , , „„„ 

“‘George Read, a Senator from Delaware, resigned his seat m December, 1793, 
during the recess of the legislature of said State. The legislature met in January and 
adjourned in February, 1794. On the 19th of March Kensey Johns was appointed 
by the governor of said State to fill the vacancy. It was determined that Mr. Johns 
was not entitled to his seat, a session of the legislature having intervened between 
the resignation of Mr. Read and the appointment of Mr. Johns.’ 

“Here is the resolution: 

“‘j Resolved, That Kensey Johns, appointed by the governor of the State of Dela¬ 
ware as a Senator of the United States for said State, is not entitled to a seat in the 
Senate of the United States, a session of the legislature of the said State having inter¬ 
vened between the resignation of the said George Read and the appointment of the 
said Kensev Johns.’ 

“That decision was made prior to the act of 1866, designating the legislature by 
which Senators should be elected, but it involves exactly the same principle. Not 
long afterwards there were divers other cases which came up, involving kindred 
questions. I am only going to call the attention of the Senate to two cases bearing 
directly on this subject in the early period of our history. There are a great many 
other cases bearing on this subject, but it would weary the Senate to have them all 
called to its attention. I desire now merely to call to the attention of the Senate the 
case of Samuel S. Phelps, appointed Senator from the State of Vermont. I will read 
the facts: 

“ ‘ Mr. Phelps was appointed by the governor of Vermont, January 17,1853, during 
the recess of the legislature, to fill a vacancy in the Senate happening by the death 
of William Upham. His credentials were presented and he took his seat January 19. 
The legislature met in October and adjourned in December without electing a Sena¬ 
tor to fill the unexpired term. Mr. Phelps had held the seat during the remainder 
of the second session of the Thirty-second Congress, ending March 3, and during the 
special session of the Senate, March 4 to April 11. December 29 he again attended. 
January 4, 1854, the Senate resolved that the Committee on the Judiciary inquire 
whether he was entitled to retain his seat. January 16 the committee reported the 
resolution “that the Hon. Samuel S. Phelps is entitled to his seat in the Senate of 
the United States.” It was accompanied by a minority report adverse to the right 
of Mr. Phelps to a seat. March 16 the resolution reported by the committee was 
rejected by a vote of 12 yeas to 26 nays; and it was “ Resolved , That the Hon. 
Samuel S. Phelps is not entitled to retain his seat in the Senate of the United 
States.’ ” 

‘ ‘ The minority report in that case contains some interesting history on that sub¬ 
ject, but I shall not consume the time of the Senate in discussing it. I want it 
understood that I am not debating the question as to what ought to have been 
decided. I am not debating it on that theory. I am debating it on the theory that 
it has been decided over and over again one way, and then, as it is said, adversely; 
and that members have been seated here, without objection, contrary to the ruling 
of those early cases. It is true members were seated contrary to those early decisions. 

“The next phase of the case was brought up by what are called the New Hamp¬ 
shire cases. It is claimed and asserted by the Senator from New Hampshire [Mr. 
Chandler] in his argument, that the decision in these cases proves the correctness of 
the minority report in this particular case. I do not consider that the decision goes 
to that extent, but it goes a long way in that direction. 

“There is no use in reading the Blair nor the Bell case. They are familiar to you 
all. They grew out of a particular situation in the State of New Hampshire in its 
constitution and the act of 1866. The act of 1866 requires that the legislature elected 
next before the vacancy shall fill it—the legislature elected, not the legislature 
sitting, not even the old legislature if it be in session, but the legislature elected next 
before the vacancy. It so happened that under the constitution of New Hampshire 
when these vacancies occurred a legislature had been elected, but it did not sit until 
the next year. Therefore that legislature could not elect under the law of 1866, it 
not being in session, and by the constitution of the State not to be in session until 
there was a vacancy. The old legislature could not elect, although it might have 
been in session, because it was not the legislature designated by the act of Congress. 

“Now you will observe that the Senate in the Blair and the'Bell cases from New 
Hampshire, and in another case from New Hampshire, departed to some extent from 
the old ruling, by holding that as the State was in such a situation that the legis¬ 
lature could not elect, therefore the governor could appoint, and appoint to a full 
term. I have read these cases here. They are very ably argued on both sides. I 
do not intend to go into the argument, as I said at first, but you will notice that 


HENRY W. CORBETT, OF OREGON. 


97 


there is a wide distinction between cases where the legislature of the State could not 
possibly elect under the law and cases where the legislature of the State was actually 
in session and ordered by the law of the United States to elect a Senator and refused 
to do it. 

“That is all that the New Hampshire cases determine. They made it a matter of 
necessity. True, they went to the full extent of declaring that a governor could fill 
a whole term. As I said before, there were other cases where the Senate had 
allowed persons appointed to a whole term, who had been appointed by the gov¬ 
ernor after the legislature had been in session, to take their seats without any ques¬ 
tion. A number of cases were cited by the Senator from New Hampshire [Mr. 
Chandler] in his argument a few days ago. So this case had been variously decided 
when the great Mantle case came up, and in that case the gentleman who made the 
report in favor of Mr. Mantle, and another, the distinguished Senator from Indiana 
[Mr. Turpie], contended most earnestly that now was a chance to settle this ques¬ 
tion, and ‘let us settle it now and forever.’ That is the meaning of it. I hope 
those gentlemen do not belong to that class of men who think a question never is or 
can be settled until it is settled according to their own peculiar views. I want to 
show exactly how that question was debated in the Mantle case. 

“The distinguished Senator from Massachusetts [Mr. Hoar] was the first to lead 
off in what I consider this line of conservative wisdom, because there is no doubt in 
the world that you had better have a case settled and allow the people and the coun¬ 
try to know what the law is, than to be forever debating it in this body. The Sena¬ 
tor from Massachusetts, who made the report and led the debate, used this language, 
and, if it means anything, it means the very thing for which I am contending here: 

“ ‘I am gratified that this question now arises under circumstances where it can 
be settled without any thought or imputation of partisanship upon any Senator 
delivering his judgment, because, although it happens there are two Republicans 
and one Democrat affected by these reports, there is a Senator in this body, who 
took his seat on the 4th of March without question, whose title depends upon virtu¬ 
ally the same thing.’ (Cong. Rec., vol. 25, pt. 1, p. 43.) 

“ There was a proposition on the part of the Senator from Massachusetts to have 
this thing settled here in this case, where we could have a fair chance, the Senator 
from Florida [Mr. Pasco] having been admitted and liable to be turned out, and 
there being two Democrats on one side and two Republicans on the other, and all 
depending virtually on the same subject. 

“ When I speak of the Mantle case I wish Senators to include in it the two other 
cases decided at the same time. The great Mantle case was debated from March 
until away into August before it was decided, and it was debated by many of the 
strongest men in the Senate at that time. The distinguished lawyer now occupying 
a seat as the senior Senator from Indiana, speaking on the same side of the same 
question, said he wanted the case decided once forever, just like the Senator from 
Massachusetts. He said: 

“ ‘It would be perhaps as fair a way as any to treat this as a case of first instance, 
the same as if no decision had been made upon it, and to remit the present court, 
the members of this body sitting in judgment, to the text of the Constitution itself, 
to the letter of the passage relating to the appointing power, and the spirit of the 
context in which it is found, and the tenor and purpose of the whole instrument.’ 
(Cong. Rec., vol. 25, pt. 1, p. 68.) 

“Evidently both of those Senators had in their minds that this vexatious question 
had been before the Senate for a long time and that it ought to be settled, and they 
proposed a settlement in the words I have read, and it was settled; that is, it was 
decided. But if we are forever to treat this question in a partisan sense, if we are 
forever to debate it, then the debate will only work injury to the country at large. 

“ Mr. President, the importance of having the law decided and known can not be 
overestimated. Some men treat it as a trifling circumstance that a question has 
been decided for fifty years one way, and overturned by that sort of logic which 
some men have which can prove a lie to their own satisfaction. The judicial learn¬ 
ing of the United States, especially in the last thirty or forty years, ought to be a 
lesson to all mankind of the importance of adhering to that which has been the settled 
law for ages. ’ ’ 

FEx tracts from remarks of Mr. Spooner in opposition to the resolution declaring Mr. Corbett not 
entitled to a seat in the Senate. Found in the proceedings of February 24, 1898, in the Congres¬ 
sional Record, vol. 31, pp. 2119, 2120.] 

“Mr. President, I am reluctant to take the time of the Senate, but having, as a 
member of the Committee on Privileges and Elections, joined the minority in a report 
that Mr. Corbett is entitled to a seat, I feel it to be my duty to state, as rapidly as 
may be, the grounds upon which I base my action. 

S. Doc. 11-7 



98 


SENATE ELECTION CASES. 


“This is a question, Mr. President, of the very highest possible privilege. The 
term of the Hon. John H. Mitchell, as a Senator from the State of Oregon, expired 
on the 4th day of March, 1897. The vacancy occurred during a recess of the legis¬ 
lature; and acting, as he thought, and as I think, within the authority of the Con¬ 
stitution of the United States, the governor of Oregon appointed Mr. Corbett Senator 
and sent him here to submit to the Senate his right to a seat. 

“When I was formerly a member of this body the right of Mr. Blair, of New 
Hampshire, to a seat bv the appointment of the governor came before the Senate, 
and, while I did not participate in the debate, I examined the question with some 
care and satisfied myself that Mr. Blair was entitled to a seat. I have reexamined 
the question, and I do not regard my own right to a seat in this body as any higher 
or better established in law than I do the right of Mr. Corbett to represent here in 

part, for the time being, the State of Oregon. 

F * * * * * 

“Preliminarily, it is said that this question ought to be considered by the Senate 
as settled because of the decision in the Lanman case, in the Kensey Johns case, in 
the Phelps case, and in the Mantle case; in other words—the proposition is not dis¬ 
tinctly made by a majority of the committee in their report, but in part so, and 
emphasized by the Senator from Alabama [Mr. Pettus]—that this question ought 
not even to be debated, but that unanimously, as upon a question which is settled, 
Senators here, regardless of their individual judgment, should vote that Mr. Corbett 
is not entitled to a seat. 

“Mr. President, the doctrine of stare decisis is a well-recognized doctrine. The 
Senator from Alabama spoke correctly when he said that its importance could not 
be overestimated. The books speak of it as a rule of public policy. That is accurate, 
but not as strong as the fact will warrant. With the growth of business, with the 
necessity for stability in judicial decisions, certainty as to rules of property, and the 
foundation of business transactions in the world, it has grown to be a rule of public 
necessity, founded originally, of course, in public policy; but it has always been 
regarded, I think, as a rule applicable only to the decisions of courts, and that, too, 
to the decisions of courts of last resort. It is not a rule as arbitrary and unyielding 
even as applied to courts as the Senator from Alabama seems to think. Chancellor 
Kent says in his Commentaries: 

‘ ‘ ‘ But I wish not to be understood to press too strongly the doctrine of stare 
decisis , when I recollect that there are more than one thousand cases to be pointed 
out in the English and American books of reports which have been overruled, 
doubted, or limited in their application.’ 

“The volume of overruled, doubted, and discredited cases, which will readily be 
found in the law library to-day, is almost as large as Webster’s Dictionary. All 
judicial decisions are not subject to the doctrine of stare decisis. The rule of res 
adjjudicata is very much broader than the rule of stare decisis. Whether a court 
will adhere to a decision which has been acquiesced in, even though they have 
doubts, not simply as to its ‘ technical accuracy ’ but as to its correctness, depends 
upon the character of the question, the length of time during which the decision 
has been acquiesced in, and whether it has entered into and become a rule of prop¬ 
erty or a rule of business. The Supreme Court of the United States has stated this 
proposition well in the case of the Minnesota Mining Company v. National Mining 
Company et al. (3 Wallace, 332), where Mr. Justice Grier said: 

“ ‘ Where questions arise which affect titles to land, it is of great importance to the 
public that when they are once decided they should no longer be considered doubt¬ 
ful. Such decisions become rules of property, and many titles may be injuriously 
affected by their change. Legislatures may alter or change their laws without injury, 
as they affect the future only, but where courts vacillate and overrule their own 
decisions on the construction of statutes affecting the title to real property, their 
decisions are retrospective and may affect titles purchased on the faith of their 
stability. Doubtful questions on subjects of this nature, when once decided, should 
be considered no longer doubtful or subject to change.’ 

“But even as applied to the decisions of courts, I repeat the courts have not been 
in the habit of holding themselves bound without discrimination by former deci¬ 
sions for whatever length of time they may have been acquiesced in. It depends 
upon the character of the question and the effect of disturbing the decision. 

“ I looked into Wells on res adjudicata and stare decisis to see if I could find noted 
the distinction in the applicability of this doctrine of stare decisis with reference to 
the class of questions or decisions, and find that he cites two leading cases—one a 
Wisconsin case. The supreme court of Wisconsin held valid the act of the legisla¬ 
ture exacting from railway companies in the State, by way of license in lieu of other 
taxes, a percentage of the gross earnings, it being attacked as being in violation of 
the clause of the constitution which requires the rule of taxation to be uniform 
“Mr. Gray. The State constitution? 


HENRY W. CORBETT, OF OREGON. 


99 


“Mr. Spooner. The State constitution; and the court held that the act was consti¬ 
tutional. Years after, a new court considering the question as a new question, and 
arguing it with very great ability, came to the conclusion, and so announced, that the 
original interpretation of the constitution was without good warrant of law; but 
when it was brought to the attention of the court that the former decision had 
become a rule of property in the State, and that to overturn it would overturn thou¬ 
sands of titles which had grown up, based upon it, and disturb all the tax proceed¬ 
ings in the intervening years, the court declared that, in view*of the harmful result 
to follow, they felt obliged within the doctrine of stare decisis to allow the decision 
to stand, although w r ere it nova res they would hold differently. 

“The author, referring in the same connection to a case from Texas, says: 

“ ‘ But the Texas court, speaking of the same subject of taxation, in reference to the 
constitutional provision lays down some limitations, which, doubtless, may be prop¬ 
erly admitted, to the effect that where the decisions relate not to matters of title, or 
contract, but abstractly to the structure of the Government, the limits of executive 
and legislative power, etc., the doctrine of stare decisis does not apply. I give, how¬ 
ever, the views of the court verbatim on this important topic. ’ 

“The supreme court of Texas has well earned in later years—I do not know so 
much of it before—by learning, by strong reasoning, and the utmost judicial assidu¬ 
ity, the favor of the profession and of the courts with which their decisions are now 
received. 

“‘The proper determination of each of these cases depends upon the validity or 
invalidity of the ‘Act to organize and maintain a system of public schools,’ approved 
April 24, 1872, and the authority conferred thereby to collect the taxes brought in 
question in them. The constitutionality of this law, and the liability of the taxpayer 
for these taxes, has been sustained by this court, * * * It may be, therefore, 
thought that the question should not be regarded by us as now open for discussion’— 
“That is the doctrine of the Senator from Alabama— 

“ ‘that whatever might be our views in respect to it, upon the principle of stare decisis 
we should hold it as definitely settled and concluded. 

“ ‘We can not, however, regard the rule of stare decisis as having any just applica¬ 
tion to questions of the character involved in these cases. This doctrine grows out 
of the necessity for a uniform and settled rule of property and a definite basis for con¬ 
tracts and business transactions. If a decision is wrong, it is only when it has been 
so long the rule of action as that time and its continued application as the rule of 
right between parties demand the sanction of its error; because when a decision has 
been recognized as the law of property, and conflicting demands have been adjusted, 
and contracts have been made with reference to and on faith of it, greater injustice 
would be done to individuals and more injury result to society by a reversal of that 
decision, though erroneous, than to follow and observe it. But when a decision is 
not of this character, upon no sound principle do we feel at liberty to perpetuate an 
error into which either our predecessors or ourselves may have unadvisedly fallen 
merely upon the ground of such erroneous decision having been previously rendered. 
“ ‘The questions to be considered in these cases’— 

“As the question to be considered and determined in this matter, even if this were 
a court— 

“ ‘have no application whatever to the title or transfer of property, or to matters of 
contract. They involve the construction and interpretation of the organic law, and 
present for consideration the structure of the Government, the limitations upon leg¬ 
islative and executive power as safeguards against tyranny and oppression. Cer¬ 
tainly it can not be seriously insisted that questions of this character can be disposed 
of by the doctrine of stare decisis .’ 

* ****** 
“Therefore, a question like that now before the Senate, even if it were pending 
before a court, would not be so far regarded as settled by a prior adjudication as to 
properly preclude a court from reviewing its decision and settling it in harmony with 
its judgment as to constitutional construction. 

“But, Mr. President, this doctrine of stare decisis, as I said before, applies to courts. 
Nobody ever heard before, so far as I am aware, of an attempt to apply it strictly and 
firmly and broadly, as the Senator from Alabama attempts to do, to the decisions of 
the Senate, of the House of Representatives, and of the different branches of the 
legislatures in dealing with contested election cases.” 

[Extracts from remarks of Mr. Foraker in opposition to the resolution that Hon. Henry W. Corbett is 
not entitled to take his seat in the Senate as a Senator from the State of Oregon. Found in the 
proceedings of February 26,1898, in volume 31 of the Congressional Record, pages 2225, 2226, 2227, 
2228.] 

“Mr. President, the debate with respect to the seating of Mr. Corbett is already 
long protracted. It is not too much to say, perhaps, that every legitimate argument 


100 


SENATE ELECTION CASES. 


that can be presented on both sides has been presented to the Senate. Surely I am 
justified in saying, after the speech of the Senator from Wisconsin [Mr. Spooner], 
that I might well be content to discharge my duty with the simple casting of my vote 
in favor of the seating of Mr. Corbett, as I shall caat it, for that speech was elaborate, 
masterly, and to my mind conclusive. 

“Yet, Mr. President, I feel with respect to this matter as though I want to do 
something more than cast my vote. I want to at least briefly give the reasons why I 
do not intend to follow; as Senators have been insisting we should follow, the deci¬ 
sion in the Mantle case. I do not intend to follow it, because in my judgment it 
was an erroneous decision. I think it was so regarded by the legal profession gen¬ 
erally throughout the country at the time when that decision was made, for whether 
the Senators who were then here and made that decision recognized the fact or not, 
it was, I think, generally thought throughout the country that the silver question 
had more to do with the making of that decision than legal principles. 

“ I think the fact that that decision was erroneous is recognized by the Senators 
who are speaking in opposition here now in this debate to the seating of Mr. Corbett 
when they make to us the elaborate arguments that they have been making about 
the doctrine of stare decisis. 

* * * * * * * 

“But now to recur to what I was about to say. Our action in determining whether 
or not a Senator who comes here with credentials shall be seated is not judicial action. 
I need not stop to read, for all Senators are familiar with the fact that the Constitu¬ 
tion of the United States, in the third article, provides that the judicial power of this 
Government shall be conferred upon certain courts which are named in the Consti¬ 
tution, or which according to that provision are authorized to be created by statute. 
There is no conferring of judicial power upon any body but the courts. The legisla¬ 
tive branch has no judicial power. 

“I have not been able to find any decision of the Supreme Court directly in point 
upon that question in the limited time I have had to make an examination, but 
being familiar with a decision of the supreme court of Ohio that is directly applica¬ 
ble, I want to call attention to it. The constitution of the State of Ohio provides, 
just as the Constitution of the United States does, that the judicial power shall be 
conferred upon the courts enumerated in the constitution and authorized by statute. 
The constitution further provides that in all contested cases of election the trial shall 
be had before such tribunal as the legislature may appoint. 

“The legislature of Ohio provided by statute that in every case of contested elec¬ 
tion of a judge the trial should be before the State senate. We had a judicial con¬ 
test. It was brought before the State senate, and the State senate found against the 
contestee. I believe that is the way the case arose. At any rate the decision of 
the State senate came before our supreme court, and one of the questions involved 
was whether it was competent under our constitution to confer upon the State senate 
the power to hear and determine a case of contest. It was claimed that senators 
could not sit as judges in that contested-election case without exercising judicial 
power; but our supreme court said, in answering that proposition, that the judicial 
power was conferred upon the courts, and that while this involved a necessity to sit 
and hear testimony and pass judgment, yet it was not in an appropriate sense an 
exercise of judicial power, although approaching the exercise of judicial power in its 
nature, remarking in that connection that there were many powers which would be 
held to be legislative or judicial accordingly as the exercise of those powers might 
be conferred upon a court or upon a legislative body. 

“I will not stop to read the case, but it is the case of The State v. Harmon (31 
Ohio State Reports, p. 250). The case there is precisely what the case is here. The 
senate of Ohio was empowered to hear and determine. They had to hear and weigh 
testimony; they had to examine witnesses; they had to pass judgment; they had to 
determine rights. That is all we have to do in this case. We hear the testimony, 
we hear what the facts are, and we then apply the law to the case. 

******* 

“ Therefore it is that I do not believe we ought now to follow the decision in the Man¬ 
tle case, because in my opinion that decision was erroneous, and because, Mr. Presi¬ 
dent, this country has never accepted it and followed it in such a way as to make 
it appropriate to apply here, if otherwise it might be appropriately applied, the 
doctrine of stare decisis. No rights have been vested on account of it; no rule of 
property has been created on account of it; no rule of public policy will be violated 
that has been adopted on account of the Mantle case if we now depart from it. 
Therefore, if the Mantle decision was erroneous, as invoking the doctrine of stare 
decisis implies that it was and concedes that it was, we are under no obligation 
whatever to follow it and now make a second erroneous decision. 


HENRY W. CORBETT, OF OREGON. 


101 


“In the next place I object to following it, Mr. President, because, not being a 
judicial decision, if it were otherwise on all fours with this case, the disposition of 
the Mantle case would not bind us now upon the doctrine of stare decisis or res adju¬ 
dicate, because that doctrine can be applied only to a judicial decision, and that 
decision was not judicial. Judicial power in this country is conferred upon the 
courts. It is only when courts pass judgment upon those things with respect to 
which they have been given jurisdiction that judicial power is exercised and the 
predicate is laid for invoking the doctrine of stare decisis, other things being appro¬ 
priate for its application. 

“But, Mr. President, there is a stronger reason to my mind—if it be possible to 
have any stronger-—than the one I have suggested why the decision in the Mantle 
case should not bind anybody in this case; why we should feel ourselves at liberty 
to take up this case and consider it res nova. It has been said here, and repeated 
over and over again, that this case is identical with the Mantle case upon the facts. 
I do not so understand it. Not only do I not understand the facts to be the same, 
but 1 can not comprehend how any Senator can make that statement about the facts, 
admitted and conceded to be what all agree that they are—but when I speak of facts 
I contradistinguish simple facts from the mixed case of law and fact. 

“There is not any question but that in the Mantle case the legislature had met, 
had organized, and as an organized body was in session, with full power and oppor¬ 
tunity to elect a Senator if it had seen tit to do so, and failed. In this case it is an 
admitted fact that while the members-elect to that general assembly had a meeting, 
they never did have an organization as a legislature under and in accordance with 
the provisions of the constitution of the State of Oregon. 

“I listened to the Senator from Tennessee [Mr. Turley] yesterday as he stated the 
undisputed facts. If I do not state them exactly as they are, I trust that he will 
correct me. The senate met—the members-elect. They had a temporary organiza¬ 
tion. They met subsequently and had a permanent organization, and there is not 
any question but that the senate of Oregon was duly constituted, duly met, duly 
organized, and duly in session, with power to do its part in the election of a Senator. 

“As to the house the case was different. They met; they had a temporary organi¬ 
zation; appointed a committee on credentials, and adjourned without anybody tak¬ 
ing the oath of office. They never met again, except only a portion of them. The 
constitution of Oregon provides that two-thirds of the whole number of members 
elected, or 40—having reference to the figures that will represent the number of 
members of that house—shall constitute a quorum. There were never but 31 assem¬ 
bled after the first meeting; never but 31 members met who had taken the oath of 
office; there was not, therefore, ever a quorum of the house of Oregon in meeting or 
in session of any kind whatsoever, and yet it is said they were in session and full 
opportunity to elect a Senator. 

“How is that said? It is said they were in session, because the constitution of Ore¬ 
gon provides that less than a quorum may adjourn from day to day, and shall have 
power to send for and compel the attendance of absent members; and because, while 
they were so sitting and adjourning from day to day and undertaking to compel the 
attendance of absent members, they were not subject to arrest; they were in the 
enjoyment of all the privileges conferred upon those who were in attendance upon 
the general assembly in the performance of their duties, and because, further, it is 
provided by the statute of Congress that on the second day of the Senatorial elec¬ 
tion, when the two houses of the legislature meet in joint session, they shall proceed 
with the election, provided there be a majority of both houses present. • 

“Well, now, Mr. President, let us examine that just for a moment. It does not 
seem to me that upon these facts there was a house of representatives in session 
when less than a quorum had taken the oath of office and were meeting from day to 
day and adjourning from day to day, with power to compel the attendance of absent 
members, and when it is admitted that they never did compel such attendance. 

“Certainly it can not be contended that there was ever an organization of that 
house which met the requirements of the constitution of Oregon, and surely, for the 
purposes of organization, that constitution would be the organic and supreme law to 
govern the house of representatives. It does not cut any figure, Mr. President, that 
there was a majority present, or more than a majority, who had taken the oath of 
office, so long as the "majority failed to be a quorum. If there had been only 10 mem¬ 
bers of the general assembly present who had taken the oath of office, who were 
meeting from day to day and adjourning from day to day, with power to send for 
the other members and compel their attendance, those 10 would have been just as 
much a legally organized and acting house of representatives of the State of Oregon 
as the 31 members were or ever could be. It does not make any difference, when 
you come to consider the question of organization, whether they had 31 members, 
or 21 members, or 10 members, or 5 members. So long as less than 40 members 


102 


SENATE ELECTION CASES. 


assembled and took the oath of office and undertook to act together, there was less 
than a quorum and never any organization. Nothing, it seems to me, can be more 
definitely established than that. 

“How did the Senator from Tennessee yesterday, in his very able argument, with 
which I was pleased, although he differed from me in the opinion he was trying to 
uphold, undertake to say that that legislature, which he was compelled to admit 
never had any valid organization under the constitution of Oregon, had an oppor¬ 
tunity to elect a Senator? He got around that by pointing out to us the language of 
the statute of the United States governing in such case and commenting upon that 
feature of it to which I have already adverted, that on the second day, if there be a 
majority of each house present, they may proceed to the election of a Senator. Ah, 
but, Mr. President, the Senator from Tennessee skipped over lightly the preceding 
section of the statute. This statute can have no application or operation except only 
the condition precedent, for the second day’s session, the joint session, shall have 
been complied with. What is the language of the statute? I will read section 14, 
title 2, chapter 1: 

“ ‘ Sec. 14. The legislature of each State which is chosen next preceding the expira¬ 
tion of the time for which any Senator was elected to represent such State in Congress 
shall, on the second Tuesday after the meeting and organization thereof, proceed to 
elect a Senator in Congress. ’ 

“When came the time—will some Senator please answer—when it was competent 
under this statute for the legislature of Oregon to proceed with the election of a 
United States Senator? This statute can have no application, can confer no power 
or authority, until after the legislature shall have met and shall have organized. 
When did it organize? The senate organized, we all agree; but the organization of 
the senate is not an organization of the legislature. When did the house organize? 
Never. That, Mr. President, is the crucial point in the whole case. There never 
was any organized legislature in the State of Oregon.” 


Monday, February 28, 1898. 

Mr. Hoar moved to amend the resolution reported from the Committee on Privi¬ 
leges and Elections by striking out the word “not,” so as to make the resolution read: 

“ Resolved, That the Hon. Henry W. Corbett is entitled to take his seat in this body 
as a Senator from the State of Oregon.” 

A vote being taken thereon, the amendment was rejected by the following vote: 

Ayes—Messrs. Aldrich, Allison, Baker, Fairbanks, Foraker, Frye, Hanna, Hans- 
brough, Hawley, Hoar, Lodge, Mantle, Mason, Morrill, Perkins, Sewell, Turner, 
Wetmore, and Wilson—19. 

Nays—Messrs. Allen, Bacon, Bate, Berry, Burrows, Butler, Caffery, Carter, Chil¬ 
ton, Clark, Clay, Cockrell, Cullom, Davis, Deboe, Faulkner, Gallinger, Gorman, 
Gray, Hale, Heitfeld, Jones (Ark.), Jones (Nev.), Kenney, Lindsay, McBride, 
McMillan, Mallory, Martin, Mills, Mitchell, Money, Nelson, Pasco, Penrose, Petti¬ 
grew, Pettus, Platt (Conn.), Bawlins, Roach, Shoup, Stewart, Teller, Thurston, Till¬ 
man, Turley, Turpie, Vest, Warren, and Wellington—50. 

Thereupon a vote was taken on agreeing to the resolution as reported from the 
Committee on Privileges and Elections and the same was agreed to by the following 
vote: 

Ayes—Messrs. Allen, Bacon, Bate, Berry, Burrows, Butler, Caffery, Carter, Chil¬ 
ton, Clark, Clay, Cockrell, Cullom, Davis, Deboe, Faulkner, Gallmger, Gorman, 
Gray, Haile, Heitfeld, Jones (Ark.), Jones (Nev.), Kenney, Lindsay, McBride, 
McMillan, Mallory, Martin, Mills, Mitchell, Monev, Nelson, Pasco, Penrose, Petti¬ 
grew, Pettus, Platt (Conn.), Rawlins, Roach, Shoup, Stewart, Teller, Thurston, Till¬ 
man, Turley, Turpie, Vest, Warren, and Wellington—50. 

Nays—Messrs. Aldrich, Allison, Baker, Fairbanks, Foraker, Frye, Hanna, Hans- 
brough, Hawley, Hoar, Lodge, Mantle, Mason, Morrill, Perkins, Sewell, Turner, 
Wetmore, and Wilson—19. 

(Cong. Rec., vol. 31, p. 2275.) 

At the first session of the Fifty-sixth Congress, and during the debate in the case 
of Matthew S. Quay, the case of Henry W. Corbett was discussed by Mr. Carter and 
Mr. Simon and certain papers relating to the case were inserted in the Record and 
are referred to here. 

(Cong. Rec., vol. 33, pp. 2573-2579.) 


ANDREW T. WOOD, OF KENTUCKY. 


103 


[Fifty-fifth ('ongress—Special session of the Senate.] 


ANDREW T. WOOD, of Kentucky. 

The term of Joseph C. S. Blackburn, a Senator from the State of Kentucky, expired March 3,1897. 
The legislature of said State not being then in session, the governor of said State, on the 5th day of 
March, 1897, appointed Andrew T. Wood to fill the vacancy in the Senate caused by the expiration 
of the term of Mr. Blackburn. The credentials of Mr. Wood were presented in the Senate March 10, 
1897, and were referred to the Committee on Privileges and Elections. No report was submitted by 
the committee concerning the claim of Mr. Wood to a seat in the Senate. Afterwards William j. 
Deboe was duly elected by the legislature of the State of Kentucky to succeed Joseph C. S. Blackburn 
as a Senator from said State. Mr. Deboe appeared and took his seat in the Senate during the first 
session of the Fifty-fifth Congress, and no further action was taken in respect to the claim of Mr. Wood. 

The history of the case here given consists of a statement of the proceedings in the Senate in refer¬ 
ence to the claim of Mr. Wood, as published in the Congressional Record. 

PROCEEDINGS IN THE SENATE. 

Wednesday, March 10, 1897. 

The Vice-President presented a communication from the governor of Kentucky, 
which was read, as follows: 

“Commonwealth of Kentucky, Executive Office, 

“ Frankfort , Ky., March 5 , 1897. 

“Sir: I have the honor to notify you that I have this day appointed Andrew T. 
Wood, of Montgomery County, this State, Senator from Kentucky in the United 
States Senate (to supply the vacancy occasioned by the expiration of the term of 
J. C. S. Blackburn as such Senator, which happened during the recess of the legisla¬ 
ture of Kentucky, said body not being now in session) temporarily until the next 
meeting of said legislature and election thereby of his successor. 

“In testimony of which, as governor of said Commonwealth, my name, with seal of 
State, is hereto attached, day and date above written, and in the one hundred and 
fifth year of the Commonwealth. 

“William O. Bradley. 

“Attest: 

“Charles Finlay, Secretary of State. 

“By E. D. Guffey, Assistant Secretary of State. 

“Hon. Garret A. Hobart, 

“ Vice-President of the United States and President of the Senate .” 

Mr. Hoar moved that the Senator appointed from the State of Kentucky be admitted 
to take the oatn. 

On motion of Mr. Gorman the credentials presented, with the motion of the Senator 
from Massachusetts, were referred to the Committee on Privileges and Elections. 

(Cong. Rec., vol. 30, p. 7.) 


104 


SENATE ELECTION CASES, 


[Fifty-fifth Congress, first session.] 

JOHN A. HENDERSON, of Florida. 


The term of Wilkinson Call as Senator from the State of Florida expired March 3,1897. By the 
constitution of the State of Florida the legislature of that State was chosen in the month of October 
1896, but did not meet until in the month of April, 1897. A special session of Congress having been 
called to begin on the 15th day of March, 1897, the governor of the State of Florida on the 6th day of 
March, 1897, appointed James'A. Henderson to fill the vacancy caused by the expiration of the term 
of Mr. Call. The credentials of Mr. Henderson were presented in the Senate March 16,1897, and his 
right to a seat in the Senate was discussed. The credentials were referred to the Committee on Privi¬ 
leges and Elections, and attention having been called to a defect in the credentials, amended creden¬ 
tials were presented March 25,1897, and referred to the same committee. No report was submitted 
by the committee, nor was any further action taken by the Senate in the matter. On the 14th day of 
May, 1897, Stephen R. Mallory was elected a Senator from the State of Florida for the term beginning 
March 4, 1897, and duly appeared and took his seat as such Senator. 

The history of the case here given consists of a statement of the proceedings in the Senate in said 
case as published in the Congressional Record and extracts from the remarks of Mr. Hoar and Mr. 
Pasco in regard to referring the credentials of Mr. Henderson to the Committee on Privileges and 
Elections. 


PROCEEDINGS IN THE SENATE. 

Wednesday, March 16 , 1897. 

Mr. Pasco. I present the credentials of Mr. Henderson, who comes here by 
appointment of the governor of the State of Florida. 

The credentials were read, as follows: 

“State of Florida, Executive Department. 

“I, W. D. Bloxham, governor of the State of Florida, by virtue of the authority 
in me vested by subdivision 2 of section 3 of Article I of the Constitution of the 
United States, have, by reason of a vacancy happening from the expiration of the 
term of Hon. Wilkinson Call as United States Senator from the State of Florida on 
the 4th day of March, 1897, and during the recess of the legislature of said State, 
made temporary appointment of Hon. John A. Henderson, of Tallahassee, Leon 
County, Fla., who is duly qualified therefor under the Constitution of the United 
States, to be Senator in the Congress of the United States from the State of Florida 
from said 4th day of March, 1897, until the legislature of said State shall fill such 
vacancy. 

“ In testimony whereof I have hereunto set my hand and caused the great seal of 
the State of Florida to be affixed. 

“Done at Tallahassee, the capital, this 6th day of March, A. D. 1897. 

“ [seai,] W. D. BLOXHAM, Governor. 

“By the governor. Attest: 

“ Jno. L. Crawford, Secretary of State.” 


Mr. Pasco stated that Mr. Hende rson was in waiting and asked that heL>e allowed 
to take the oath of office. 

Allen moved that the credentials be referred to the Committee on Privileges 
and Elections. 

Mr. Pasco. I am not willing to consent to that course. The case of Mr. Henderson 
is different in many respects from the two cases which have already been referred to 
the Committee on Privileges and Elections, and I see no reason why there should be 
any delay whatever in admitting him to a seat. When I presented similar creden¬ 
tials myself four years ago, without any objection, without any motion, I was admitted 
to my seat; and Mr. Henderson’s case is precisely the same as that which was then 
presented to the Senate. 


* 


* * * 


* 


* 


* 


JOHN A. HENDERSON, OF FLORIDA. 


105 


Mr. Hoak. I desire to call the attention of the Senate and of the Senator from 
Florida to the fact that there is a clear illegality in this proceeding, as disclosed by 
the credentials themselves. The governor has undertaken to appoint this gentle¬ 
man to hold office until the legislature shall elect. He has no such power. He can 
only appoint, under the constitution, until the next meeting of the legislature. 
That has been extended by an ancient, well-settled construction to the time when 
the legislature either elects after meeting or adjourns without an election, but it 
never has been contended by anybody from the foundation of the Government that 
a governor could appoint until the legislature elected. They may meet and adjourn, 
and meet again and adjourn half a dozen times without an election. Strictly con¬ 
strued, this is an appointment not merely for six years, but forever, if the legisla¬ 
ture of Florida do not elect. But, at any rate, the governor made this appointment 
supposing that he could appoint a man who would hold office certainly for the rest of 
the term of six years if the legislature of Florida did not agree. Non constat, if he 
were to appoint a man for a few days or weeks, he would not have appointed a very 
different person. So these credentials differ from all the other cases in the fact that 
they are materially defective themselves. Certainly the proposition which I make 
is grave enough to be referred to the Committee on Privileges and Elections. 

But I also desire, now I am up, to say to the Senator from Florida that, having 
studied this matter as thoroughly as I can, it seems to me that all these cases—the 
three which have now been presented and some others which have been settled by 
the Senate—are governed and ought to be governed by one simple principle, which 
would require all three of these applicants to be admitted, as it required Mr. Blair 
and Mr. Bell to be admitted, but which also would require the overruling of some re¬ 
cent and, it appears to me, quite erroneous action of the Senate. There ought to 
be a well-considered, careful dealing with this whole subject, first by the report of 
the committee, and afterwards by the action of the Senate. It is very much more 
important that we should extricate ourselves from the mud in which we have got 
on this matter of executive appointment than that any one gentleman should have 
the right of sitting a week or two earlier or later in this body. 

When the Senator from Florida himself came in, everybody knew that the matter 
was merely formal. His election by his legislature in the course of two or three 
weeks was as sure as any such thing in the future ever would be, and to have kept 
him out while the committee scrutinized his credentials would have cost him his 
place on committees which he had earned by long service and would have left also 
the seat vacant. Therefore, his colleagues on both sides of the Chamber thought it 
was not worth while to raise the question. 

******* 

Mr. President, I for one, as at present advised, after very careful study of the mat¬ 
ter, agree with the Senator from Florida in one particular. I think—and I go 
further than I understood him to go—I think that the Constitution intended that 
this body should be always full, and that its framers did not mean to have any diffi¬ 
culties in the way. They were not quite so sure that the State legislatures would 
always elect or that Senators elected would always accept in those days. The seats 
here were not the objects of ambition when the Constitution was framed that they 
have become since. The powers of the United States Government were few—at any 
rate, those exercised were few—the subjects of our jurisdiction were limited. It was 
a painful and disagreeable thing in those days for a man to leave his home for the 
seat of government and travel here, and in many of the States there were fines estab¬ 
lished by law for the punishment of persons who refused to accept legislative and 
other public offices. I might add further that down even to Mr. Webster’s time one 
of the serious dangers which Mr. Webster spoke of as menacing our Government 
was that it might fall to pieces by the failure of the State legislatures to elect Sena¬ 
tors and of the people to elect Representatives. He contemplated that as one of the 
serious dangers to our Government down to 1825 or 1830. 

It seems to me that the Constitution meant to say that when the legislature is in 
session it shall choose a Senator, and that if the office be vacant when the legislature 
is not in session a Senator shall be appointed ad interim by the great authority repre¬ 
senting the State in all other of its great functions, the governor or executive, who 
in those days appointed the judges and the great officers of the State. There was a 
simple, ample, sufficient method of providing for the keeping of seats in this body 
always occupied by the representatives of the different States, and all the subtleties 
and refinements which have been born of political desires where the votes of Senators 
have been affected by the question whether the man was a silver man or a gold man, 
a Democrat or a Republican, have produced infinite mischiefs and have gone far to 
get us into difficulty, and I hope we shall go back to what was the simple and plain 


106 


SENATE ELECTION CASES. 


constitutional doctrine which was involved in the action by the Senate in the cases 
of Blair and Bell, and which was laid down in the report of the majority of the Com¬ 
mittee on Privileges and Elections in the cases of Lee Mantle and others. 

(Cong. Rec., vol. 30, pp. 26, 27, and 29.) 

The motion to refer the credentials to the Committee on Privileges and Elections 
was agreed to. 

(Cong. Rec., vol. 30, p. 34.) 

Thursday, March 25 , 1897. 

Mr. Pasco presented the amended credentials of Mr. John A. Henderson, appointed 
a Senator from the State of Florida. 

The credentials were read and referred to the Committee on Privileges and 
Elections. 

(Cong. Rec., vol. 30, p. 261.) 


MATTHEW S. QUAY, OF PENNSYLVANIA. 


107 


[Fifty-sixth Congress, first session.] 


MATTHEW S. QUAY, of Pennsylvania. 


The term of Matthew S. Quay, a Senator from the State of Pennsylvania, expired March 3,1899. 
The legislature charged with the duty of choosing his successor failed to elect. On the 21st day of 
April, 1899, the governor of the Commonwealth of Pennsylvania appointed Matthew S. Quay a Sen¬ 
ator from said State to supply the vacancy in the Senate of the United States occasioned by the expi¬ 
ration of the term of said Matthew S. Quay. 

On the 4th day of December, 1899, the credentials of Mr. Quay were presented in the Senate and 
referred to the Committee on Privileges and Elections; also a resolution that Mr. Quay be admitted 
as a Senator from the State of Pennsylvania in accordance with the appointment by the governor of 
said State. On the 23d day of January, 1900, the committee reported a resolution in the case of Mr. 
Quay, that he was not entitled to a seat in the Senate as a Senator from the State of Pennsylvania. 
This resolution was accompanied by the report of the committee and also the report of the minority 
of the committee, which alleged the right of Mr. Quay to a seat in the Senate. 

After a full debate the resolution reported by the committee was adopted by a vote of 33 to 32. 

The history of the case here given consists of a statement of the proceedings of the Senate in the 
case as published in the Congressional Record, the report of the Committee on Privileges and Elec¬ 
tions, the report of the minority of the committee, a statement of the days on which the debates 
occurred, with a reference to the record of the same, a portion of the remarks of Senators jin such 
debate, a statement of the vote on the amendment to the resolution reported by the committee, and 
a statement of the vote on the adoption of the resolution. 

PROCEEDINGS IN THE SENATE. 

Monday, December 4, 1899. 

Mr. Penrose presented the credentials of Matthew S. Quay, appointed by the 
governor of Pennsylvania a Senator from that State, which were read, as follows: 

“In the name and by the authority of the Commonwealth of Pennsylvania, execu¬ 
tive department. 

‘ ‘ To all to whom these presents shall come, greeting: 

“Whereas a vacancy exists in the representation of the Commonwealth of Penn¬ 
sylvania in the Senate of the United States by reason of the expiration of the con¬ 
stitutional term of the Hon. Matthew Stanley Quay and the failure of the general 
assembly of the Commonwealth to elect his successor: Therefore, know ye, that repos¬ 
ing especial trust and confidence in the prudence, integrity, and ability of the Hon. 
Matthew Stanley Quay, I, William A. Stone, governor of the Commonwealth of 
Pennsylvania, in conformity to the provisions of clause 2 of section 3 of Article I of 
the Constitution of the United States, have appointed, and do by these presents 
commission, him a Senator to represent this State in the Senate of the United States, 
to supply the vacancy in the Senate of the United States occasioned by the expira¬ 
tion of the term of office of the Hon. Matthew Stanley Quay, which occurred on the 
4th day of March last. He is, therefore, to have and to hold the said office, together 
with all the rights, powers, and privileges thereunto belonging, or by law in any wise 
appertaining, until the next meeting of the legislature of the Commonwealth of 
Pennsylvania, or until his successor shall be duly elected and qualified, if he shall so 
long behave himself well. 

“This appointment to compute from the day of the date hereof. 

“Given under my hand and Jthe great seal of the State, at the city of Harrisburg, 
this 21st day of April, in the year of our Lord 1899 and of the Commonwealth the 
one hundred and twenty-third. 

“[seal.] William A. Stone. 

“By the governor: 

“ W. W. Griest, Secretary of the Commonwealth.” 

The credentials were referred to the Committee on Privileges and Elections. 

Mr. Chandler submitted the following resolution, which was referred to the Com¬ 
mittee on Privileges and Elections: 

“Resolved , That Matthew S. Quay be admitted as a Senator from the State of Penn- 


108 


SENATE ELECTION CASES. 


sylvania in accordance with his appointment made on April 21, 1899, by the gov¬ 
ernor of the State.” 

Mr. Burrows presented a memorial in the nature of a remonstrance against the 
seating of the appointee by the governor of the State of Pennsylvania, which was 
received and referred to the Committee on Privileges and Elections. 

Mr. Jones, of Arkansas, presented a remonstrance by 78 members of the legislature 
of Pennsylvania against the seating of M. S. Quay as a Senator from said State, which 
was also referred to the Committee on Privileges and Elections. 

(Cong. Rec., vol. 33, p. 1.) 


Thursday, January 4, 1900. 

Mr. Hoar asked and obtained leave of the Senate to make a statement in the nature 
of^ personal explanation, as follows: 

‘‘Mr. President, I receive in my mail daily a good many letters—and I dare say the 
same is true of all members of the Senate—appealing to me with great earnestness to 
vote to deny a seat in the Senate to a gentleman from Pennsylvania who claims a 
seat by reason of an appointment made in the recess of the legislature by the gov¬ 
ernor of that State. Some of the writers of these letters are Quakers—members of 
the Society of Friends; others are evidently very philanthropic persons; and I am to 
assume that they are very good judges of character, because their letters are full of 
personal compliments to myself [laughter], and I dare say the same is true of the 
letters received by other Senators. The proposition is, however, that I must vote— 
and they are surprised at my having any doubt about it—-to deny a seat in this body 
to the gentleman who claims it under an appointment on the ground of certain 
charges that they make against him in regard to his personal character and fitness 
for the office. 

“A good many years ago I investigated the question of the right of the governor of 
a State to appoint, and I suppose I have made eight or ten elaborate speeches during 
the last fifteen years in favor of the proposition that whenever, during the recess of 
the legislature of a State there was a vacant seat in the representation of that State 
in the Senate, the governor had the right to fill it, and I have made three cr four 
reports in favor of that proposition. 

‘ ‘ The Senate is the body, the court, the judge of the election of Senators. I am one 
of the sworn judges, and what these worthy gentlemen are asking me to do is, in 
substance, to stuff the ballot box and make a false return in my capacity as a sworn 
judge of elections because they think the governor of a State ought to have appointed 
somebody else. 

“That is the attitude which these worthy gentlemen are taking, and I see that some 
newspapers of wide circulation in my own State affected to take the same view of 
the case. Of course the same principle would require Senators, if the legislature 
should elect this gentleman or some other against whom such charges can be main¬ 
tained, to deny him a seat when the legislature has elected him. If the governor 
has no right to appoint or the legislature has no right to elect, then of course we do 
not admit the claimant. But if the governor have the right to appoint or the legis¬ 
lature have the right to elect, and we declare that -they have not appointed him or 
have not elected him when they have, we are doing exactly what is done by ballot- 
box stuffers and election judges who make false returns. 

“I hope this little statement of mine regarding such communications—in which I 
am sure every member of this body, without exception, will concur—will answer as 
a reply to the great batch of letters I am getting on this subject.” 

(Cong. Rec., vol. 33, p. 646.) 


Tuesday, January 23, 1900. 

Mr. Turley, from the Committee on Privileges and Elections, reported a resolution in 
the case of Matthew S. Quay, who claims the right to a seat in the Senate as a Senator 
from the State of Pennsylvania. He also submitted the report of the Committee on 
Privileges and Elections in the said case; also thj3 views of the minority of said 
committee. 

The secretary read the resolution, as follows: 

“Resolved, That the Hon. Matthew S. Quay is not entitled to take his seat in this 
body as a Senator from the State of Pennsylvania.” 

It was ordered that the resolution be placed on the Calendar and that the report of 
the Committee and the views of the minority be printed. 

(Cong. Rec., vol. 33, p. 1051.) 


MATTHEW 8. QUAY, OF PENNSYLVANIA. 


109 


REPORT OF THE COMMITTEE. 

[The committee consisted of the same Senators named in the statement preceding 
the report in the case of Nathan B. Scott, supra.] 

In the Senate of the United States. 

J anuary 23, 1900.—Ordered to be printed. 

Mr. Turley, from the Committee on Privileges and Elections, submitted the fol¬ 
lowing report (to accompany Senate resolution relative to admitting Matthew Stanley 
Quay, of Pennsylvania, to a seat as a Senator): 

The Committee on Privileges and Elections, to whom were referred the credentials 
of Matthew Stanley Quay, claiming a seat in the Senate from the State of Pennsyl¬ 
vania, respectfully report: 

Prior to March 3, 1899, Mr. Quay was a Senator in Congress from the State of 
Pennsylvania. His term of office, to which he had been elected by the legislature of 
Pennsylvania, expired by efflux of time on the 3d day of March, 1899. The legisla¬ 
ture of Pennsylvania convened in regular session on the first Tuesday in January, 
1899. On Tuesday, January 17, 1899, it began balloting for the purpose of selecting 
some one to succeed Mr. Quay and fill the vacancy which would occur on the 3d day 
of March, 1899. Daily ballots were taken in obedience to the provisions of the act 
of Congress of July 25, 1866, and of the Pennsylvania statute of January 11, 1867, 
from that date until April 19, 1899. The legislature adjourned April 20 without 
effecting an election. Thereafter, on April 21, 1899, the governor of Pennsylvania 
appointed Mr. Quay to represent the State of Pennsylvania in this body until the 
next meeting of the legislature. 

It will thus be seen that the vacancy, which the governor of Pennsylvania has 
here attempted to provide for by a temporary appointment, was one which was fore¬ 
seen, one which was caused by the expiration of a prior term, one which occurred 
while the legislature of Pennsylvania was in session, and one which that legislature 
had an opportunity of filling before it occurred, and also after it occurred, in the 
interim between the date of the occurrence and the appointment by the governor. 

Under these facts we think that the appointment is invalid. 

On behalf of Mr. Quay it is insisted that whenever a vacancy exists during the 
recess of a legislature, no matter when or how it happened or occurred, and no matter 
how often the legislature may have had an opportunity to fill it, the governor may 
appoint. 

In the opinion of your committee whenever the legislature has had the right and 
an opportunity to fill a vacancy, either before or after it begins, the executive can 
not lawfully appoint. 

The question involved is a constitutional one, a judicial one, and the Senate of the 
United States is the only court, the sole tribunal, which has jurisdiction over it and 
power to settle it. The Senate has had frequent occasion in the past to consider the 
power of the executives of States to make temporary appointments to seats in this 
body. But before going into the precedents thus established we will, as briefly as 
is consistent with the importance of the question, consider the provisions of the Con¬ 
stitution bearing upon it. The Constitution of the United States pertaining to this 
subject, Article I, section 3, provides: 

“The Senate of the United States shall be composed of two Senators from each 
State, chosen by the legislature thereof for six years, and each Senator shall have one 
vote. 

“ Immediately after they shall have assembled in consequence of the first election, 
they shall be divided as equally as may be into three classes. The seats of the Sen¬ 
ators of the first class shall be vacated at the expiration of the second year, of the 
second class at the expiration of the fourth year, and of the third class at the expira¬ 
tion of the sixth year, so that one-third may be chosen every year; and if vacancies 
happen by resignation, or otherwise, during the recess of the legislature of any State, 
the executive thereof may make temporary appointments until the next meeting of 
the legislature, which shall then fill such vacancies.” 

When this language is analyzed, giving to the words used therein their usual and 
ordinary meaning, it clearly appears that the paramount and controlling intent of 
the framers of the Constitution was: First, to give the States equal representation in 
the Senate, which carries with it the intent to always keep the Senate full; second, 
to have the Senators chosen by the legislatures of the various States; and third, to 
have all vacancies in the office of Senator filled by the legislatures. But it was seen 
that under our complex system of national and State governments vacancies might 


110 


SENATE ELECTION CASES. 


happen or occur at times when they could not be filled by the State legislatures, and 
that if provision was not made for such contingencies the equality of representation 
in the Senate might, for the time being, be destroyed; and to prevent this evil the 
power to make temporary appointments until the next meeting of the legislatures 
was given, to the executives of the States. 

Let us now consider the paragraph conferring the power of appointment on the 
State executive, again giving to the words used their ordinary meaning. It is “and 
if vacancies happen by resignation or otherwise, during the recess of the legislature 
of any State, the executive thereof may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancies.” What is a vacancy 
in the office of Senator? The original or full term is for six years. If the first incum¬ 
bent dies or resigns, a vacancy occurs, happens, or begins. When the legislature has 
filled this vacancy it ceases to exist, and the term of office of the Senator thus chosen 
is measured by the unexpired time of the original term. A vacancy may again occur 
in the term of office of the second Senator which will exist until it is filled by the 
legislature, and the term of office of the Senator thus chosen will again be measured 
by the unexpired time of the original term. It is thus manifest that there can be 
but one vacancy in any one term. “A vacancy in an office is a unit. It can not 
happen or occur but once.” 

After a vacancy in the office of United States Senator occurs or comes to pass, if 
the next legislature does not fill it, it continues to exist. It is the same vacancy, not 
a new one. Now the State executive is given power to make temporary appoint¬ 
ments in case of a vacancy, not as long as it continues or exists, but only until the next 
meeting of the legislature , which is then required to fill the vacancy. This clearly 
means that the paramount intent to have the legislature choose the Senators is to pre¬ 
vail, and that, whenever the legislature has had the opportunity to fill the vacancy, 
either before or after it occurs, the executive has no power to appoint. And when 
we take the phrase “if vacancies happen by resignation, or otherwise, during the 
recess of the legislature of any State,” if we concede that the general word “other¬ 
wise” is not qualified nor limited by the specific word “resignation,” and that it 
includes vacancies which are caused by efflux of time and which can be foreseen, as 
well as vacancies which are caused by a casualty or the happening of an unexpected 
event and which can not be foreseen, still it must be construed and defined with ref¬ 
erence to the balance of the phrase so as to give effect to all its parts; and it thus 
results that the vacancy, no matter how it is produced, must happen, take place, or 
begin during a recess of the legislature; and this of itself would be decisive against Mr. 
Quay’s claim. 

As to the proper definition to be here given to the word “happen,” your committee 
is of opinion that the primary or ordinary meaning of the word carries with it the idea 
or element of uncertainty, as is clearly shown by the report of the minority of this 
committee in the Lee Mantle case (Senate Report No. 1, Fifty-third Congress, spe¬ 
cial session), pages 14, 15, and 17, which report was sustained by the Senate. But 
suppose that we give it the meaning attributed to it in the report of the majority of 
the committee in the Mantle case, page 4, and admit that it means “to take place,” 
“ to occur,” “to come to pass,” the result will be the same. Applying these equiv¬ 
alents of “happen” to a vacancy—a vacancy, all will admit, “ takes place, ” “occurs,” 
“comes to pass” at a fixed moment; that is, at its very beginning. Having “taken 
place,” “occurred,” “come to pass,” it may continue indefinitely, but it does not 
continually and momentarily “take place,” “occur,” nor “come to pass” again 
and again. Hence a vacancy must begin or commence during a recess of the legisla¬ 
ture before the executive can appoint. 

Thus construed, this clause of the Constitution affords every facility for always 
keeping the Senate filled with Senators who are the real representatives of their 
respective States. A Senator who is chosen by the legislature of his State is likely 
to be the choice of the majority of the citizens of his State. A Senator who is 
appointed by an executive is frequently only the personal or political favorite of the 
executive. 

The legislature, as we construe the clause, chooses the Senator in the first instance. 
If he declines to serve or dies before he is inducted into office; or if, after qualifying, 
he dies, resigns, or is expelled the executive may make a temporary appointment 
until the legislature meets again; or if, owing to changes in State constitutions, as in 
the New Hampshire cases to be mentioned hereafter, the legislature, which is author¬ 
ized to fill the term at its commencement, can not meet until after the term has com¬ 
menced, the executive can also make a temporary appointment. 

Every contingency is thus provided for except the sole contingency that the legis¬ 
lature will fail to perform its sworn duty. Against a contingency of this kind the 
framers of the Constitution did not intend to provide. As was said by the minority 
of the committee in the Mantle case: 


MATTHEW 8. QUAY, OF PENNSYLVANIA. 


Ill 


‘‘That the Constitution expresses a strong or controlling purpose to keep the repre¬ 
sentation of each State full in the Senate is manifested by its specific provisions for 
filling regular terms both at the beginning and as they legally expire, and by provid¬ 
ing for any accidental or unforeseen casualties by which seats thus filled might become 
vacant otherwise than by legal expiration of terms. Further than this no man can 
say that the Constitution makers intended to go. It can not for a moment be sup¬ 
posed that they contemplated or intended to provide for a case where either the leg¬ 
islature or the governor of a State should wantonly or with any other motive or for 
any reason either refuse or fail to perform their duty in the creation of Senators. 
This would have been to express a doubt and want of faith in the perpetuity of the 
structure which they were building. On the contrary, it is just and reasonabl&to sup¬ 
pose that, having invested each State with certain specific rights as to representation 
in this body, and imposed upon them the duty of exercising these rights in a certain 
specified way, patriotism and self-interest would combine to secure the enjoyment 
of these rights more effectually than any provision which they could possibly insert 
in the Constitution.” 

Again, consider the words, ‘ ‘ the executive thereof may make temporary appoint¬ 
ments until the next meeting of the legislature.” The plural “appointments” is 
used to conform to ‘ ‘ vacancies. ’ ’ The entire section deals with ‘ ‘ Senators, ” “ two 
Senators from each State,” and the plural forms “vacancies” and “appointments” 
were more convenient and in better style. And, besides, a case might happen where 
two vacancies would occur in the same State during the same recess of the legisla¬ 
ture. But the material point is that the power granted is not general, but temporary 
and limited. It is not a general power to fill vacancies by appointments whenever 
they occur and as long as they exist; on the contrary, it is a special power to supply 
certain kinds of vacancies for a limited or fixed period. 

If we examine this clause of the Constitution in the light of the proceedings of the 
convention of 1787, the conclusion which we have reached will be strengthened and 
fortified. Several plans for the selection of Senators were submitted. Two, differ¬ 
ing in detail, contemplated their selection by the House of Representatives; one 
contemplated their election by the people; one by electors chosen by the people; two 
provided that they should be chosen by the legislatures; and one that they should 
be appointed by the President out of a proper number of persons nominated by the 
legislatures. There was no suggestion that State executives should appoint them. 
It was finally agreed that the States should have equal representation in the Senate 
and that Senators ought to be chosen by the individual legislatures. The matter was 
then referred to the committee on detail. The clause, as reported by the committee 
on detail, was as follows: 

“The Senate of the United States shall be chosen by the legislatures of the several 
States. Each legislature shall choose two members. Vacancies may be supplied by 
the executive until the next meeting of the legislature. Each member shall have 
one vote.” 

It will be noticed that under the clause, as thus reported, the power of appoint¬ 
ment was vested in the executive in any condition of vacancy. In other words, the 
clause contained apt language to express the very idea upon which Mr. Quay now 
bases his claim to a seat in this body. If that clause had been adopted, undoubtedly 
the executive would have had the right to appoint as long as the vacancy existed, no 
matter how' often the legislature, after the vacancy occurred, might have met and 
failed to fill it. The clause, as thus reported by the ^committee on detail, came up 
for discussion on the 9th of August. Objection was made to giving the executives 
of States the power of temporary appointment in any case. It was suggested, how¬ 
ever, that it was necessary to repose the power of temporary appointment some¬ 
where inasmuch as Senators might resign or refuse to accept election. Quoting from 
the debates of the convention, “Mr. Madison, in order to prevent doubts whether 
resignations could be made by Senators, or whether they could refuse to accept, 
moved to strike out the words after ‘ vacancies ’ and insert the words ‘ happening by 
refusal to accept, resignation, or otherwise, may be supplied by the legislature of the 
State in the representation of which such vacancies shall happen, or by the executive 
thereof until the next meeting of the legislature.’ ” 

This amendment was, for the time, adopted The clause then read as follows: 

“The Senate of the United States shall be chosen by the legislatures of the several 
States. Each legislature shall choose two members. Vacancies happening by refusal 
to accept, resignation, or otherwise may be supplied by the legislature of the State 
in the representation of which such vacancies shall happen, or by the executive 
thereof until the next meeting of the legislature.” 

It will again be seen that under Mr. Madison’s amendment the vacancy could be 
filled by the executive no matter when it happened nor how often the legislature 
had failed to fill it. Under this amendment, if a vacancy happened during a session 


112 


SENATE ELECTION CASES. 


of the legislature and the legislature failed to fill it, or if it happened during a recess 
of the legislature, the executive could appoint until the next meeting of the legisla¬ 
ture, and then if the legislature failed to fill the vacancy, the executive could again 
appoint. Thus the clause as originally reported by the committee on detail, and as 
amended by Mr. Madison, placed the power of appointment in the hands of the 
executive without regard to the time at which the vacancy began. 

The matter then went to the committee on style, revision, and arrangement. That 
committee reported on September 12, and the third section of Article I read in its 
report just as it now does in the Constitution, excepting that it did not contain the 
final words “which shall then fill the vacancy.” On September 14 these last- 
mentioned words were added by amendment, and this clause of the Constitution was 
thus completed as it now stands. 

It is to be remembered that many of the members of this convention were trained 
lawyers and all were men of great intellect and fine education. Undoubtedly they 
well understood the meaning of words and how to use apt terms to express their views 
and intentions. It can scarcely be conceived that they, without fully understanding 
what they were doing, rejected words and phrases which gave the power of appoint¬ 
ment to the executive in any and every condition of vacancy and substituted there¬ 
for words which naturally and appropriately limit his power of appointment to 
vacancies occurring, happening, or taking place during a recess of the legislature. 

Much stress has been laid upon the fact that when Mr. Madison offered his amend¬ 
ment to the clause as reported by the committee on detail he stated that it was done in 
order to prevent doubts whether resignations could be made by Senators or whether 
they could refuse to accept. We might well say that, if this was the idea which induced 
Mr. Madison to offer the amendment, he also intended, for he well knew the rules of 
construction which applied in all such cases, to limit the power of appointment to 
vacancies happening by causes of like kind and character as a refusal to accept or a 
resignation. 

But certainly the convention itself was not devoting its attention to the question 
as to whether a Senator could resign or refuse to accept; on the contrary, the great 
object of its consideration was how to create the Senate. If it had been intended to 
simply give Senators the right to resign or refuse to accept, how easy it would have 
been to have done so in apt and simple words, and why was not some similar provi¬ 
sion enacted in reference to members of the House of Representatives? 

The history of the proceedings of the convention in reference to this clause of the 
Constitution demonstrates that the controlling purpose was to have the Senators 
elected by the legislatures, to have all vacancies filled by the legislatures, and to 
deny to the executive the power to appoint whenever the legislature had had the 
opportunity to fill the vacancy. We quote again from the report of the minority of 
the committee in the Mantle case, pages 15 and 16: 

“ It is illogical in the extreme to contend that the method of supplying a casual 
vacancy in the Senate contains the controlling purpose of the Constitution. If the 
frequency and emphasis of the words are considered, much stronger would be the 
argument that the election of Senators by the legislatures of the States is the con¬ 
trolling purpose. Look at the language: ‘The Senate of the United States shall 
be composed of two Senators from each State, chosen by the legislature thereof ’— 
not appointed by governors or anyone else—‘immediately after they shall be 
assembled in consequence of the first election ’—not first appointment—‘after dividing 
them into three classes’—the language is—‘so that one-third may be chosen’— 
not appointed—‘every two years. And if vacancies happen by resignation, etc., 
the executive may make temporary appointments until the next meeting of the 
legislature, which shall then fill such vacancies.’ 

“The power of the executive is, ‘may make temporary appointments,’ while the 
injunction to the legislature is ‘shall be chosen’—the one is mandatory and the 
other permissive; and yet they say the permissive power controls and is paramount 
to the mandatory power of the legislature to elect. This language clearly is only 
intended to give State executives a right to keep the Senate full by appointments, 
and nothing more. 

“Again, the next clause says, ‘that the Senator shall be an inhabitant of that State 
for which he shall be chosen’—not appointed. In section 4 it is provided again: 

“ ‘The times and places and manner of holding elections for Senators and Repre¬ 
sentatives shall be prescribed in each State by the legislature thereof; but the Con¬ 
gress may at any time by law make or alter such regulations, except as to the places 
of choosing Senators.’ 

“In every mention in the Constitution of the creation of Senators but one an elec¬ 
tion is contemplated.” 

It is claimed that the right of a State executive to fill a Senatorial vacancy which 
occurs during a legislative session or during a recess of a legislature, where the legis- 


MATTHEW S. QUAY, OF PENNSYLVANIA. 


113 


lature has foreseen the vacancy and has failed to fill it, should be assimilated to the 
right now claimed and exercised by the President under section 2, Article II, of the 
Constitution. This section provides as follows: 

“The President shall have power to fill up all vacancies that may happen during 
the recess of the Senate, by granting commissions which shall expire at the end of 
their next session.” 

Various Attorneys-General have held under this provision that, where an office 
became vacant during a session of the Senate and the Senate adjourned before it had 
been filled, the power of the President to appoint still continued. We submit, how¬ 
ever, that this construction has never been placed on the clause of the Constitution 
now under consideration, and, further, that there is a marked distinction between 
the cases of Presidential appointments and the appointment of Senators by State 
executives. In the appointment of administrative officers of the United States the 
power under the Constitution is primarily with the President. The Senate is simply 
an advisory and consenting body. In the case of the selection of Senators the respon¬ 
sibility is cast primarily on the legislatures of the States. The composition of the 
Senate is based upon the theory that the people of the States act through their legis¬ 
latures. We confidently assert, therefore, that there is no analogy between the sub¬ 
ordinate right of State executives in the case of Senators and the primary right of the 
President in the matter of the appointment of administrative officers of the Govern¬ 
ment. 

In discussing the clause of the Constitution now under consideration we have 
recognized the New Hampshire cases, which are hereinafter explained, as establishing 
the proposition that where, under changes in a State constitution, the legislature 
wffiich is charged with the duty of filling a regular term can not meet until after its 
commencement, the executive can make a temporary appointment. But we think 
that the framers of the Constitution never contemplated nor intended to provide for 
a case where a State, by its own deliberate act should deprive its legislature of the 
power to fill an entire term at its beginning. In our opinion they never intended to 
give the executive of a State the power to fill an entire term by original appointment, 
unless, possibly, in a case where the legislature had chosen and the person elected 
had refused to accept or died before qualification. In other words, we conclude that 
the power of appointment was not to be exercised unless the vacancy occurred in the 
recess of the legislature and was occasioned by some casualty like death or resigna¬ 
tion. This view has been maintained by many of the ablest constitutional lawyers 
who have occupied seats in this body, notably by the present junior Senator from 
Missouri, Mr. Vest. In his remarks in one of the New Hampshire cases (the Blair 
case, Taft’s Election Cases, p. 37) he said among other things: 

“ I voted on the Bell case that Mr. Bell was not entitled to a seat in this body; that 
the governor of a State had no right to fill an entire term by original appointment; 
that the meaning of the Constitution, which declares ‘ if vacancies happen by resig¬ 
nation or otherwise during the recess of the legislature of any State’ the executive 
authority of a State may make a temporary appointment, is that when a vacancy 
shall occur, not by operation of law, but by some event which applies to the indi¬ 
vidual asking for the office or applying for admission into this body, by the resig¬ 
nation of a person, by death operating upon him, and that the word ‘otherwise’ in 
that connection means by similar casualty—when a vacancy shall happen, when it 
shall occur, not by operation of statute or of any constitution, but when it occurs by 
resignation, death, or otherwise. 

“The terms of the Constitution as originally made—and I shall be very brief in the 
discussion of the subject, for I only propose to give my own reasons for casting my 
vote—the terms of the Constitution are: 

“ ‘ If vacancies happen by resignation or otherwise, during the recess of the legisla¬ 
ture of any State, the executive thereof may make temporary appointments until 
the next meeting of the legislature, which shall then fill such vacancy.’ 

“ There are three clauses in the Federal Constitution in which the word ‘ happen ’ 
is used. First, in Article II, section 2, the Constitution says: 

“ ‘ The President shall have power to fill up all vacancies that may happen during 
the recess of the Senate by granting commissions which shall expire at the end of 
their next session.’ 

“ Article I, section 2, provides: 

“ ‘ When vacancies happen in the representation from any State, the executive 
authority thereof shall issue writs of election to fill such vacancies.’ 

“Article I, section 3, which is the clause now under discussion, provides: 

“ ‘And if vacancies happen by resignation or otherwise during the recess of the 
legislature of any State, the executive thereof may make temporary appointments 
until the next meeting of the legislature, which shall then fill such vacancies.’ 

“ In all three of these clauses the word * happen ’ is used, but I call the attention 


S. Doc. 11-8 



114 


SENATE ELECTION CASES. 


of the Senate to the fact that in the first two clauses in regard to vacancies in the 
House of Representatives and vacancies during a recess of the Senate as to exec¬ 
utive officers, the word ‘happen’ is without limitation ‘ where vacancies shall hap¬ 
pen,’ and there is the termination of the power of the President in regard to 
Executive appointments; but in regard to Senators the Federal convention put a 
limitation upon the word ‘happen.’ They did not stop with declaring where 
vacancies may happen during a recess of a legislature that then the governor may 
appoint, but where a vacancy shall happen by resignation or otherwise. 

“If the Senators now present are correct who claim the power of a governor to 
exist to appoint in these cases, we are forced to the conclusion that the words ‘ by 
resignation or otherwise ’ are void and meaningless as used by the framers of the 
Constitution, or else that the terms are a limitation upon the word ‘ happen.’ They 
are not found in the other two clauses of the Constitution. What makes this argu¬ 
ment more significant and conclusive to my mind is that the original draft of the 
Constitution, which I have before me, and the debates show that the clause as 
originally reported to the convention of 1787 was absolute and unlimited when a 
vacancy should occur, and Mr. Madison moved to put in these terms of limitation, 
that where the vacancy should occur by resignation or otherwise, or equivalent 
terms, then the governor of the State might appoint.” 

We come now to the consideration of the reported cases where the Senate has 
passed on questions involving the power of State executives to supply vacancies by 
temporary appointment. 

The first case is that of Kensey Johns, of Delaware, which was decided on March 
28, 1794. As reported in Taft’s Election Cases, pages 1 and 2, the cases w T as as 
follows: 

“ George Read, a Senator from Delaware, resigned his seat in December, 1793, 
during the recess of the legislature of said State. The legislature met in January 
and adjourned in February, 1794. On the 19th of March Kensey Johns w r as appointed 
by the governor of said State to fill the vacancy. It was determined that Mr. Johns 
was not entitled to his seat, a session of the legislature having intervened between the 
resignation of Mr. Read and the appointment of Mr. Johns.” 

There were five members of the Federal Convention who were members of the 
Senate when this case was acted on. Four of them voted against the right of claim¬ 
ant to said seat and one voted in his favor. This fact should be persuasive of how 
the framers of the Constitution understood and construed the clause of the Constitu¬ 
tion now under consideration. 

The next case is that of Uriah Tracy, of Connecticut, which was disposed of on 
March 4, 1801. (Taft’s Election Cases, p. 3.) Mr. Tracy’s first term expired March 
3, 1801. On March 4, at a special session of the Senate, he produced credentials of 
appointment by the governor of Connecticut to fill the vacancy. It appeared from 
the credentials, which were dated February 20, 1801, that the legislature was not 
then in session and that he was appointed to serve from March 3, 1801, until the 
next meeting of the legislature. Exceptions were taken to his credentials, but he 
was admitted to his seat by a vote of 13 to 10. It will be seen that in this case the 
vacancy occurred during a recess of the legislature and that the legislature had had 
no opportunity to fill it after it occurred. 

Then comes the case of Samuel Smith, of Maryland, which was decided on June 6, 
1809. (Taft’s Election Cases, p. 4.) The facts of this case were as follows: On the 
expiration of Mr. Smith’s first term, March 3, 1809, the legislature of Maryland not 
having elected his successor and not then being in session, he was appointed by the 
governor on March 4, 1809, to fill the vacancy until the next meeting of the legisla¬ 
ture, which would take place on June 5 next thereafter. It will thus be seen that 
the facts in the Smith case were the same as those in the Tracy case. That is to say, 
the vacancy occurred during a recess of the legislature at the beginning of a term, 
because the legislature which should have filled the vacancy failed to do so. The 
right of Mr. Smith to take his seat under the appointment seems not to have been 
contested. The only question determined was whether the appointment would or 
would not cease on the first day of the meeting of the next legislature. The Senate 
held that Mr. Smith was entitled to hold his seat during the next session, of the 
legislature unless said legislature should fill such vacancy and the Senate be officially 
informed thereof. 

The cases of Mr. Tracy and Mr. Smith, taken together, decided that where a legis¬ 
lature, whose duty it was to elect a successor to a Senator whose term of office was 
about to expire, adjourned before the expiration of said term wdthout electing the 
successor, the executive might then appoint and the appointee would not simply hold 
his seat until the next meeting of the legislature, but during the next session of the 
legislature or until that session of the legisluture filled the vacancy. If it adjourned 
without doing so, then the appointee’s right to his seat would cease. It will thus be 


MATTHEW S. QUAY, OF PENNSYLVANIA. 


115 


seen that these cases do not help Mr. Quay, for in each of them the vacancy occurred 
during a recess of the legislature, and the legislature had had no opportunity of fill¬ 
ing the vacancy between the date of its occurrence and the time of the appointment. 

The next case is that of James Lanman, of Connecticut. This case was disposed of 
in March, 1825. (Taft’s Election Cases, pp. 5 and 6.) Mr. Lanman’s term expired 
on March 3, 1825. On March 4, 1825, he produced credentials of appointment by 
the governor to fill the vacancy. The credentials were dated February 8, 1825, and 
set forth that the President had desired the Senate to convene on March 4, 1825, and 
had caused official notice of that fact to be communicated to the governor. The 
credentials were to take effect immediately after March 3,1825, and to continue until 
the next meeting of the legislature. According to the report of the committee on 
this case, as contained in Niles Weekly Register, volume 28, page 32, the credentials 
further showed that at the time of their execution “ the legislature of the State was 
not in session and would not be until the month of May. ’ ’ 

Exceptions being taken, the credentials were referred to a committee, who reported 
the facts as above stated. On motion, Mr. Lanman was denied his seat. It will thus 
be seen that the facts in the Lanman case were identical with the facts in the Tracy 
case and identical with the facts in the Smith case, with the exception that in the 
Smith case the appointment was not made until the vacancy had occurred. In the 
Tracy and Lanman cases the appointments were made before the vacancies occurred. 
Otherwise the three cases are similar. It is said that the Lanman case may have been 
decided upon the ground that the executive could not properly make the appoint¬ 
ment in anticipation before the vacancy occurred. We do not coincide in this view. 
First, because under this view Mr. Tracy should have been denied his seat; and 
second, because we can find nowhere in the earlier reported cases any doubts sug¬ 
gested as to the validity of an appointment by an executive on the ground that it was 
made before the vacancy actually occurred if the appointment was otherwise valid. 
In our opinion the decision in the Lanman case rested upon the fact that the legis¬ 
lature of the State had had full opportunity to fill the vacancy before it actually 
occurred and had failed to do so. This will more clearly appear from the report of 
the committee in the next case to be considered, that of Ambrose H. Sevier, of 
Arkansas. 

The Sevier case was considered and decided in February and March, 1837. (Taft’s 
Election Cases, pp. 7 and 8.) The facts were as follows: 

“The State of Arkansas was admitted into the Union in June, 1836. In October, 

1836, the legislature of that State elected Ambrose H. Sevier and William S. Fulton 
Senators. On the allotment of the Arkansas Senators to their respective classes, as 
required by the third section of the first article of the Constitution, Mr. Sevier was 
placed in the class of Senators whose term of service expired on the 3d of March, 

1837. The legislature of Arkansas had no opportunity to fill the vacancy, not having 
been in session after the result of the allotment was known in that State. January 
17, 1837, the governor of Arkansas appointed Mr. Sevier to fill the vacancy which 
would take place on the 3d of March. At the special session of the Senate in March 
the credentials were referred to the Committee on the Judiciary. The committee 
reported that as the time when Mr. Sevier was to go out of office was decided by lot, 
and as the legislature, not being in session after this decision, could not supply the 
vacancy, it came ‘fairly within the provision of the Constitution contained in the 
third section of the first article, which declares, “and if vacancies happen by resig¬ 
nation or otherwise,” etc.,’ and reported a resolution that the oath required by the 
Constitution be administered to him. March 8 this resolution passed and Mr. Sevier 
took his seat.” 

Mr. Grundy, of Tennessee, made the report in this case. In the course of the 
report he referred to the Lanman case and the distinction between it and the Sevier 
case in the following language: 

“ In looking into the practice of the Senate upon the subject of executive appoint¬ 
ments, no case like the present has been found. Several cases have occurred in which 
the executives of different States in anticipation of the expiration of the regular 
term of service have appointed Senators (the legislature not being in session), and 
in all of these cases the Senators thus appointed were admitted to their seats until 
the called session of the Senate in March, 1825, when Mr. Lanman, of Connecticut, 
whose term of office expired on the 3d of March, 1825, produced his credentials from 
the governor of Connecticut, and the Senate decided he was not entitled to his seat 
by a vote of 23 to 18. 

“ This decision seems to have been generally acquiesced in since that time; nor is it 
intended by this committee to call its correctness in question. The principle asserted 
in that case is that the legislature of a State by making elections themselves shall 
provide for all vacancies which must occur at stated and known periods; and that 


116 


SENATE ELECTION CASES. 


the expiration of a regular term of service is not such a contingency as is embraced 
in the second section of the first article of the Constitution. 

“The case now under consideration is wholly different in principle. The time 
when Mr. Sevier was to go out of office under his election made by the legislature of 
Arkansas was decided by lot, agreeably to the provisions of the Constitution on that 
subject. After the decision thus made, the legislature of Arkansas, not being in ses¬ 
sion, could not supply the vacancy; and the case, in the opinion of the committee, 
comes fairly within the provisions of the Constitution contained in the third section 
of the first article, which declares, “ and if vacancies happen by resignation or oth¬ 
erwise during the recess of the legislature of any State the executive thereof may 
make temporary appointments until the next meeting of the legislature, which shall 
then fill such vacancies.” 

It will thus be seen that Mr. Grundy understood the Lanman case to have been 
decided upon the principle announced above. 

The next case was that of Robert C. Winthrop, of Massachusetts, which was before 
the Senate on February 4, 5, and 7, 1851. (Taft’s Election Cases, pp. 10-12.) 

“Mr. Winthrop was appointed July 27, 1850, to fill a vacancy in the Senate hap¬ 
pening by the resignation of Daniel Webster. February 1,1851, Robert Rantoul was 
elected by the legislature to fill the unexpired term. February 4, Mr. Rantoul not 
having appeared' to take the seat, Mr. Winthrop offered a resolution, which was 
agreed to, “Thatthe Committee on the Judiciary inquire and report to the Senate, 
as early as practicable, at what period the term of service of a Senator appointed by 
the executive of a State during the recess of the legislature thereof rightfully 
expires.” The committee reported that a person so appointed had a right to the 
seat until the legislature, at its next meeting, should elect a person to fill the unex¬ 
pired term, and the person elected should accept, and his acceptance appear to the 
Senate; that presentation of credentials implied acceptance; that these views were 
sustained by the precedents. The report was debated, but no action taken, the 
whole subject was laid on the table,” because, on February 7, 1851, Mr. RantouTs 
credentials were presented, and Mr. Winthrop thereupon vacated the seat. 

The next case is that of Archibald Dixon, of Kentucky, which was before the 
Senate in December, 1852. (Taft’s Election Cases, pp. 13-15.) The facts of this case 
were as follows: On December 17, 1851, Henry Clay was a Senator from Kentucky, 
chosen by the legislature for a term of six years, which expired on March 3, 1855. 
Being so a Senator, he resigned by a communication to the legislature, declaring that 
it was to take effect on the first Monday in September, 1852. The legislature then 
being in session, received the resignation, and chose Mr. Dixon to fill the vacancy 
thus to occur from the first Monday in September,- 1852, to March 3, 1855. The 
legislature then adjourned. On June 29, 1852, during a recess of the legislature, Mr. 
Clay died, and the governor of Kentucky made a temporary appointment of Mr. 
Meriwether as a Senator from Kentucky to hold the seat until the first Monday in 
September, 1852, the date on which Mr. Clay’s resignation was to take effect. Mr. 
Meriwether immediately took the vacant seat and held it until Congress adjourned 
on the last day of August, 1852. On the reassembling of Congress, December 6, 1852, 
Mr. Meriwether did not appear, and Mr. Dixon appeared and presented his creden¬ 
tials. 

Objection was made to Mr. Dixon’s taking the oath of office on the ground that 
the seat still belonged to Mr. Meriwether, the point being that Mr. Meriwether had 
been appointed to fill a vacancy happening by the death of a Senator and he had a 
right to the seat until the next meeting of the legislature, and that it was not in 
the power of the governor to limit the term of office until the first Monday in Sep¬ 
tember, 1852, the day on which Mr. Clay had declared his resignation was to become 
operative. The Senate held that Mr. Meriwether’s right to the seat expired on the 
first Monday in September, 1852, and that thereafter Mr. Dixon was entitled to it. 

This case establishes several principles. The first and most important is that if, 
while the legislature is in session, a Senator tenders his resignation to take effect at 
a date which will be subsequent to the adjournment of the legislature, the legislature 
can fill the vacancy which is to thus begin after its adjournment. This carries out 
the paramount idea and intention of the convention, already mentioned, to have the 
Senate kept filled with Senators chosen by the legislatures. The second principle 
established is that a Senator’s resignation can take effect in futuro; and the third is 
that if the Senator, after having so resigned, dies before the date fixed for the con¬ 
summation of the resignation, the legislature not then being in session, the governor 
can appoint. This case, in all its aspects, is adverse to the claims of Mr. Quay. 

The next case is that of Samuel S. Phelps, of Vermont, which was debated in the 
Senate from January to March, 1854, and was finally disposed of on March 16 1854 
(Taft’s Election Cases, pp. 16-19.) 

“Mr. Phelps was appointed by the governor of Vermont Januarv 17, 1853, during 


MATTHEW S. QUAY, OP PENNSYLVANIA. 


117 


the recess of the legislature to fill a vacancy in the Senate happening by the death of 
William Upham. His credentials were presented, and he took his seat January 19. 
The legislature met in October and adjourned in December without electing a Senator 
to fill the unexpired term. Mr. Phelps had held the seat during the remainder of 
the second session of the Thirty-second Congress, ending March 3, and during the 
special session of the Senate March 4 to April JL1. December 29 he again attended. 
January 4, 1854, the Senate resolved that the Committee on the Judiciary inquire 
whether he was entitled to retain his seat. January 16 the committee reported the 
resolution ‘that the Hon. Samuel S. Phelps is entitled to his seat in the United States 
Senate.’ It was accompanied by a minority report adverse to the right of Mr. Phelps 
to a seat. March 16 the resolution reported by the committee was rejected by a vote 
of 12 yeas to 26 nays, and it was ‘ Resolved , That the Hon. Samuel S. Phelps is not 
entitled to retain his seat in the Senate of the United States.’ ” 

The resolution of inquiry, referred to above, was submitted by Mr. Seward, and 
was in the following language: 

“Whereas the Hon. Samuel S. Phelps was appointed by his excellency the governor 
of Vermont, in the recess of the legislature of that State, to fill a vacancy in the Sen¬ 
ate of the United States which had happened by the death of the Hon. William 
Upham, a Senator whose term of six years would have continued until the 4th day 
of March, 1855; and 

“Whereas it is understood that since that temporary appointment was made the 
legislature of Vermont has been convened at their annual session and has adjourned 
without filling such vacancy: Therefore, 

11 Resolved, That the Committee on the Judiciary inquire whether the Hon. Samuel 
S. Phelps is entitled to retain his seat in the Senate of the United States.” 

This case was very fully considered by the committee and by the Senate. As will 
be seen, Mr. Phelps was denied his seat because, between the date of his temporary 
appointment and the action of the Senate, the legislature of Vermont had convened 
and adjourned without filling the vacancy. 

The case of Jared W. Williams, of New Hampshire, was before the Senate in July 
and August, 1854, was, in substance, the same as the case of Mr. Phelps explained 
above, and was decided in the same way. 

The cases of Charles II. Bell and Henry W. Blair, of New Hampshire, which were 
before the Senate in 1879 and 1885, respectively, may be considered together. (Taft’s 
Election Cases, pp. 26-47.) Each of these appointments was made to fill a vacancy 
at the commencement of a full term. The act of Congress of July 25, 1866, as will 
be remembered, provides that “the legislature of each State which is chosen next 
preceding the expiration of the time for which any Senator was elected to represent 
said State in Congress shall, on the second Tuesday after the meeting and organi¬ 
zation thereof, proceed to elect a Senator in Congress,” etc. In 1878 the constitution 
of New Hampshire was changed so that its biennial legislatures were chosen in 
November, but were not allowed to meet in session until the following June. Thus 
in each of these cases the legislatures which, under the act of 1866, were bound to 
fill these vacancies had no opportunity to do so until some three months after they 
occurred. Under these circumstances it was decided that the governor had the right 
to make temporary appointments for this period of time. We thus see that in these 
cases the legislature had never had an opportunity to fill the vacancies which were 
supplied by temporary appointment by the governor. 

In the case of Horace Chilton, of Texas, disposed of in January, 1892, and reported 
in Taft-Furber Election Cases (pp. 48-51), Mr. Reagan, an elected Senator from the 
State of Texas for a term of six years, resigned his office and the resignation was to 
take effect June 10, 1891. The executive of Texas, after the receipt of the resigna¬ 
tion of Mr. Reagan and on April 25, 1891, appointed Mr. Chilton to supply the 
vacancy. The certificate recited that the appointment was to take effect June 10, 
1891. The only point decided was whether the governor had the right to appoint 
in advance. The decision was in the affirmative. The legislature had never had an 
opportunity to fill this vacancy. 

Again, and finally, we can consider the cases of Lee Mantle, of Montana; John B. 
Allen, of Washington; A. C. Beckwith, of Wyoming, and Henry W. Corbett, of 
Oregon, together, the first three being before the Senate in 1893 and the last in 1898. 
All of these were appointments to supply vacancies of regular or full terms. In the 
cases of Mantle, Beckwith, and Corbett the legislatures which should have filled the 
vacancies had met and adjourned without doing so. In the Allen case the legislature 
was in session on the 4th of March, the date the new term commenced, and remained 
in session until the 9th of that month, and Mr. Allen was appointed on the 10th, 
In each of the cases the claimants were refused seats, or, to state it more correctly, 
the claimants in the Mantle, Corbett, and Allen cases were refused seats, and the 
Beckwith case was not pressed to a vote, Mr. Beckwith having abandoned his claim. 


1 1 8 SENATE ELECTION CASES. 

It will be noticed that the facts in the Allen case are identical with those in the Quay 
(.* 3.80 

The statement of these cases and precedents shows that from the beginning of the 
Government down to the present time the Senate has never recognized the right of a 
State executive to make a temporary appointment where the vacancy happened or 
occurred during a session of the legislature. It show's, further, that for seventy-five 
years the Senate has refused to recognize the right of a State executive to make a 
temporary appointment, even where the vacancy happened or occurred during a 
recess of the legislature, if the legislature, either before or after it occurred and prior 
to the date of the appointment, had had an opportunity to fill it. 

The fundamental principle thus established is that if th'e legislature, either before 
or after the happening of a vacancy, has had an opportunity to fill it, then there is 
no power in the State executive to appoint. The result is fatal to the claims of Mr. 
Quay. No danger or evil has resulted to the Government from the enforcement of 
this principle. 

We therefore submit that the Senate, for its own honor and dignity, should stand 
by its previous solemn and deliberate decisions, and recommend the adoption of the 
following resolution: 

“ Resolved , That the Hon. Matthew S. Quay is not entitled to take his seat in this 
body as a Senator from the State of Pennsylvania.” 

DONELSON CAFFERY. 

E. W. PETTUS. 

THOS. B. TURLEY. 

W. A. HARRIS. 

I concur in the recommendation of the foregoing report. 

J. C. BURROWS. 

VIEWS OF THE MINORITY* 

Matthew S. Quay claims to be admitted to a seat as a Senator from Pennsylvania 
by virtue of an appointment by the governor of that Commonw ealth, dated April 
21, 1899. Mr. Quay had held the seat for the term ending March 4, 1899, by election 
of the legislature. 

The legislature who w r ere authorized to elect his successor met on the 3d day of 
January, 1899, and adjourned without such election on the 20th day of April, 1899. 
The Constitution of the United States provides (sec. 3, Art. I): 

“If vacancies happen by resignation, or otherwise, during the recess of the legis¬ 
lature of any State, the executive thereof may make temporary appointments until 
the next meeting of the legislature, which shall then fill such vacancies.” 

The constitution of the Commonwealth of Pennsylvania provides (sec. 4, Art. II): 

“In case of a vacancy in the office of United States Senator from this Common¬ 
wealth, in a recess between sessions, the governor shall convene the two houses, by 
proclamation on notice not exceeding sixty days, to fill the same.” 

It is claimed that the governor under this provision of the constitution was bound 
to call the legislature together forthwith. It is admitted that this was not done. It 
is claimed, therefore, that the effect of this failure was to deprive the governor of the 
power of appointment, if any, conferred upon him by the Constitution of the United 
States. We are unable to accept this view. 

First. It seems to us that it was a fair question whether the governor was bound 
to call the legislature together at once in all cases, without discretion. For instance, 
if the vacancy had occurred so near the time for a regular session that it would be 
inconvenient and not worth while to anticipate it, or if the legislature had just 
adjourned without effecting a choice and the governor felt reasonably certain that 
it would be impossible to effect an election if they were assembled, it might be fairly 
claimed that he was not bound to issue a call from which no practical result of any 
value would be likely to come. It might well be that no session of the Senate of 
the United States was likely to take place in which a person chosen could take a seat 
before the regular time of assembling the legislature. Now, the question whether 
the governor had a discretion in any case or whether the injunction of the State 
constitution is absolute and peremptory is one which the governor must decide, and 
we can not, it seems to us, hold that an erroneous decision on his part would deprive 
the State of Pennsylvania of its right to be represented in the Senate in a constitu¬ 
tional way. It seems to us that this clause of the constitution of Pennsylvania must of 
necessity be interpreted by the authority in Pennsylvania charged with its execution, 
and that the Senate of the United States can not go behind the judgment of that 
officer in regard to its meaning and application. 

Second. It seems to us that, whatever may have been the duty of the executive of 
Pennsylvania, the constitution of Pennsylvania itself can have no effect upon the 


MATTHEW S. QUAY, OF PENNSYLVANIA. 


119 


lawful appointment of a Senator of the United States. That is provided for by the 
Constitution of the United States. The Constitution of the United States declares 
that the governor may appoint under certain circumstances. It declares also that 
‘ ‘ this Constitution shall be the supreme law of the land, anything in the constitu¬ 
tion or laws of any State to the contrary notwithstanding.” So if there be such a 
vacancy as is described in the Constitution, the Constitution providing that in such 
case the governor may appoint, a provision of the constitution of Pennsylvania that 
he shall not appoint or that he shall do something else, can not have the effect to 
deprive him of his power under any circumstances. 

We are left, therefore, to the consideration of the meaning of the provision of the 
Constitution of the United States above cited. This question, in our judgment, is a 
very simple one. Does the language of the Constitution of the United States mean 
just what the constitution of the Commonwealth of Pennsylvania says: “In case of 
a vacancy in the office of United States Senator in a recess between sessions,” or 
does it mean that the vacancy must be one which comes by chance, so that it does 
not apply at all to the case of a vacancy at the beginning of a term, which does not 
come by chance but is foreseen and inevitable? If the words have the former mean¬ 
ing, then all distinctions between cases where a legislature has been in session and 
those where a legislature has not been in session, between vacancies at the beginning 
of a term and vacancies beginning after the term itself has begun and the office for 
that term once filled, are without importance. We think that the former is the true 
meaning of the Constitution. We think that it was the intent of the Constitution to 
provide, as far as possible, that every State should have two Senators. 

First. The constitutional convention hesitated between conferring the power of 
appointing Senators upon the executive and the legislature of the State in the begin¬ 
ning. Like the legislature, the executive of the State was supposed to represent the 
will of the people. Under the constitutional arrangements then existing, he 
appointed all State officers and appointed judges, who held their office for life. So 
there is no reason to suppose that they considered the executive an unfit instrument 
for such appointment. And they settled the question by giving the power of per¬ 
manent appointment to the legislature, and of temporary appointment to the 
executive. 

Second. We can conceive no reason likely to have influenced the framers of the 
Constitution for making a distinction between cases of vacancy occurring in one way 
or at one time and vacancies occurring in any other way or at any other time. The 
office of Senator may be at any time of infinite importance to the interests of a State. 
Upon a single vote may often depend and sometimes has depended the fate of meas¬ 
ures which would bring prosperity or misery into every workshop and almost every 
family in Pennsylvania. We do not believe that when the Constitution was enacted 
it would have occurred to anybody that if a Senator died within a week of the 
adjournment of the legislature, or at a time when there were three parties in the 
legislature who could not agree, or at a time when the two houses who formerly 
made an election by concurrent vote were of ways of thinking in politics so different 
that they could not be reconciled, that the State must remain unrepresented until a 
new legislature should be chosen. 

They meant, as we believe, that for the interest of the State and the interest of the 
whole country the Senate should always be full, so far as they could devise a consti¬ 
tutional mechanism to accomplish that purpose. The debates in the convention 
show, it seems to us, that such was the understanding of all the members. There is 
not the slightest suggestion of any distinction in the kind of vacancies which may be 
filled by the executive of the State. It is spoken of only as a scheme for filling 
vacancies without exception or qualification. Mr. Ellsworth says: 

“ It is only said that the executive may supply vacancies. When the legislative 
meeting happens to be near, the power will not be exerted. As there will be but 
two members from a State, vacancies may be of great moment.” 

It will be noted that Mr. Ellsworth uses the word “happen” in reference to a 
fixed and foreseen event, viz, the time of the meeting of a State legislature. Mr. 
Williamson says: “Senators may resign or not accept. This provision, is, therefore, 
absolutely necessary,” showing that it was in his mind that a vancancy occurring at 
the beginning of a term, when a Senator refused to accept, was within the contem¬ 
plation of the Constitution. 

Mr. Madison then (and it will be observed he is in this instance reporting his own 
remarks and his own purpose) says: 

“Mr. Madison, in order to prevent doubts whether resignations could be made by 
Senators or whether they could refuse to accept, moved to strike out the words after 
“vacancies” and insert the words “happening by refusal to accept, resignation, or 

otherwise.”’ ....... 

From this, in our judgment, it clearly appears that the words which it is now 


120 


SENATE ELECTION CASES. 


claimed qualify the universal words “vacancies shall be supplied by the executive 
were inserted for the distinct purpose and the only purpose of rendering it clear that 
a person elected could lawfully refuse to accept, and that a Senator could resign. Mr. 
Gouverneur Morris declares the same reason. He says: 

“This is absolutely necessary. Otherwise, as members chosen into the Senate are 
disqualified from being appointed to any office by section 9 of this article, it would 
be in the power of the legislature, by appointing a man Senator against his consent, 
to deprive the United States of his services.” 

Now, can it be believed that language which, as its author states, was used for this 
purpose was intended to accomplish a much more important and totally different 
purpose, by providing that the executiye might appoint in some cases but not in 
others, and a motion supported by Mr. Ellsworth with the argument that as there 
will be but two members from a State vacancies may be of great consequence, was 
intended to provide, in substance, that a large number c* vacancies should not be 
filled at all? 

Mr. Rutledge’s report of the committee of detail, made in the convention August 
6, 1787, was under discussion when Madison’s amendment was adopted. The provi¬ 
sion there was: “Vacancies may be supplied by the executive until the next meet¬ 
ing of the legislature.” So the committee of detail, consisting of Messrs. Rutledge, 
Randolph, Gorham, Ellsworth, and Wilson, were, as it appears, unanimously. of 
opinion that the clause should read, “Vacancies may be supplied by the executive 
until the next meeting of the legislature, ’ ’ and that view was supported by the argu¬ 
ment that it was exceedingly important that every State should always have its full 
representation; and then the language was changed to read as it is now for the sole 
purpose, so far as was avowed, of affirming the right of a Senator to resign or decline. 

So it seems to us clear that the convention meant to use language which should 
give the executive this power whenever a vacancy exists. 

The next question is, Did they use apt language to convey that meaning? If it be 
true that the phrase used is a phrase which is commonly used as synonymous with 
“occur,” “happen to exist,” “exist,” if it happen that there be a vacancy, then the 
case is made out. Now, we affirm with great confidence that the phrase used in the 
Constitution is employed in ordinary usage to describe events that do not depend 
upon chance, and to describe a continuing condition without reference to the time 
or method of its origin. If the Fourth of July happen on Sunday, the coming of 
Sunday and the coming of the Fourth of July, the coincidence of those two things, 
is the result of fixed and unchangeable natural laws; and that word expresses not 
merely the beginning of the Fourth of July, or the beginning of Sunday, but the 
continued identity of the two periods of time described throughout their entire 
length. Indeed, the word “coincidence” is equivalent to the words “happening at 
the same time,” and is used to describe events that are not fortuitous. “Incido” 
means “to happen” and it also means “to exist.” Our lexicographers, Webster 
and Worcester, and the Century Dictionary, all give as one of the meanings of the 
word “happen,” “occur.” The English translation of the Scriptures, which is our 
standard of good usage, in the twenty-second verse of the forty-first chapter of Isaiah, 
“Shew us what shall happen,” is intended to include everything that is to take 
place hereafter. It applies to everything that is to exist in the future. And the 
text goes on to explain what is meant, for it adds, “ Shew the things that are to 
come hereafter, that we may know,” etc. The Century Dictionary states that the 
word “happen” is equivalent to “it may be.” 

In the debate on the Sevier case in the Senate in 1836, John Quincy Adams said 
he believed, in relation to offices, that every one happens to be vacant which is not 
full, and that he believed was the meaning and sense of the Constitution, whether 
the vacancy occurred from casualty, the regular course of events, expiration of term, 
or other cause. 

This construction is fortified by the consideration that the same phrase is used in 
two other places in the Constitution, where it is now well settled that the words “if 
a vacancy happen” mean what we think they mean here, viz, “if a vacancy hap¬ 
pen to exist.” The Constitution provides that “the time, places, and manner of 
holding elections for Senators and Representatives shall be prescribed in each State 
by the legislature thereof, but the Congress may, at any time, by law make or alter 
such regulations.” The further provision is: “When vacancies happen in the 
representation from any State, the executive authority thereof shall issue writs of 
election to fill such vacancies.” Now, that phrase has been uniformly held, as we 
suppose, without question to include all vacancies, whenever they begin and from 
whatever conditions they are produced. It is the only authority given to the execu¬ 
tive of the State on the subject; and yet, in the old days, where a majority of votes 
was required to elect, the executive always, and in some cases repeatedly, in rela¬ 
tion to the same vacancy, issued his writ under this constitutional power. It made 


MATTHEW S. QUAY, OF PENNSYLVANIA. 121 

no difference whether it occurred by chance or in the beginning of a term or by 
death or expulsion. 

. The phrase “when vacancies happen” means “whenever there are vacancies.” 
Now, it is true this phrase is not limited by the words “during the recess of the 
legislature.” But if, when the word “ happen” is used without limitation, it applies 
to every occasion and to the whole time when there is a vacancy, surely the words 
“if vacancies happen during the recess of the legislature” apply to every recess, to 
the whole recess, and to all the time when, under whatever conditions or from 
whatever causes, there is a vacancy during any recess. It will be noticed also that 
the Constitution speaks in terms of a single State—“if vacancies happen during the 
recess of the legislature of any State,” and it provides, “ the executive may make 
temporary appointments”—not may make a single appointment. It would seem 
from this language that the Constitution had in mind the possibility of repeated 
appointments by the executive. 

Again, the.provision for appointing executive officers has been held, in accordance 
with the opinion of Attorneys-General Taney, Wirt, and Devens, and the opinion 
andpiactice, we suppose, of every President of the United States from the beginning, 
to mean the same thing. 

The provision is: 

‘ ‘ The President shall have power to fill up all vacancies that may happen during 
the recess of the Senate by granting commissions which shall expire at the end of 
their next session. ’ ’ 

Now, it is well settled that if an official die during the session of the Senate, and 
the office is not filled before adjournment, the President, under this clause, may 
appoint in vacation. If a new office be created by act of Congress during a session, 
the President may appoint persons to fill it, after the Senate has adjourned, during 
the recess. In other words, the words ‘ ‘ all vacancies that may happen during the 
recess of the Senate ’ ’ mean ‘ ‘ whenever there is a vacancy during the recess of the 
Senate.” It is inconceivable that the convention intended in the use of the same 
language a simple general provision in one case and a provision to be applied fettered 
by refinements and distinctions and with large exceptions in another case. It was 
said in argument at the hearing that this view had never been accepted by the Sen¬ 
ate, but that claim is in conflict with the uniform history of the country for more 
than a generation. 

The Senate and the House of Representatives not only have for many years let 
such appointments pass without question or remonstrance, but they provide salaries 
for officers so appointed, and, what is more emphatic still, as an expression of their 
assent and approval they create at almost every session of Congress new offices which 
they expect when they are created will be filled for the first time by the President 
in vacation. The uniform course of our legislation establishes the construction that 
when a new office is created by law on the 1st of February and no action is taken by 
the President until after the 4th of March, when Congress adjourns, the words in 
the Constitution “all vacancies that may happen during the recess of the Senate” 
are uniformly held to describe exactly that case. 

Further, the language of the very clause in question can not be construed as the 
opponents of Mr. Quay would construe it, or in any other way than the undersigned 
construe it, without destroying its own purpose. If there be no power in the exec¬ 
utive of Pennsylvania to appoint a successor to Mr. Quay under this clause of the 
Constitution, there is no power in the legislature to choose such successor until the 
end of the term; and in every case where a Senator dies or resigns, where the legis¬ 
lature is not in session, or where, after such death or resignation, the legislature has 
met and adjourned without a choice, or wherever, at the beginning of a term, the 
vacancy remains unfilled, it must remain unfilled until the end of the six years, 
according to the logic of the majority of the committee. The Constitution confers 
upon the legislature— 

First. The power to elect Senators for six years—not for five years or for four years 
or for two years. Having made that provision, which relates solely to the full term, 
as its express language clearly indicates, then comes the provision with which we are 
now dealing: 

“ If vacancies happen by resignation, or otherwise, during the recess of the legisla¬ 
ture of any State, the executive thereof may make temporary appointments until the 
next meeting of the legislature, which shall then fill such vacancies.” 

The vacancy which an executive might fill in vacation is the only vacancy which 
the legislature can fill when it meets. So that those persons who maintain the theory 
we are dealing with must either hold that the legislature of Pennsylvania can not, 
when it meets, elect a Senator, or must admit that the governor lawfully appointed 
Mr. Quay. 

We find, then, a clear purpose on the part of our Constitutional Convention to pro- 


122 


SENATE ELECTION CASES. 


vide that all vacancies shall be filled by the executive when no legislature is in session, 
apt language and language clearly adapted to that purpose introduced without objec¬ 
tion in the Constitutional Convention, accompanied by the statement of Oliver Ells¬ 
worth of the great importance that no vacancy should be left unfilled, a change in 
that language on Mr. Madison’s motion for the purpose avowed by him of removing 
a doubt as to the right of a Senator to resign or a Senator-elect to decline, and no sug¬ 
gestion anywhere of a purpose of limiting the power of the executive or making any 
exception to it. 

We find next that the language newly inserted by Mr. Madison is language 
employed in ordinary usage to express the same meaning, and that it is employed to 
express the same meaning in the same Constitution in two other important instances, 
both being instances where vacancies in public offices are to be filled. 

We find next that the purpose of the Constitution that there should be a Senate 
consisting of two members from each State will be interfered with and interrupted 
by the construction which denies the power to the executive to fill all vacancies 
whatever when there is no legislature. If that construction prevail, there must be 
frequently an interruption in the Senatorial office, and States must frequently be left 
without representation or with only partial representation in the Senate. It is unnec¬ 
essary to dwell on the importance of a single vote in a body consisting, in the begin¬ 
ning, of but twenty-two Senators, and now consisting of but ninety. In many impor¬ 
tant instances great measures have been determined by the casting vote of the Vice- 
President, which would have failed if there had been a single vacant seat. Instances 
have been very numerous indeed of important amendments which changed, or if they 
had passed would have changed, the character of great measures of legislation whose 
fate has been determined by a single vote. In Massachusetts a governor has twice 
been elected by a majority of one—in one year in the popular vote, in another year 
in the legislature. 

It is said that if the legislature has been in session after a vacancy and has failed to 
fill it the State is in fault; that the legislature has neglected its duty, and so it is not 
unjust that the State should suffer. There are two answers to this argument: First, 
that it is for the interest of the whole people that every State should be fully repre¬ 
sented; and, second, that there is no fault to be imputed to the legislature of a State 
or to the people, where a majority vote is required, if there be a failure to elect. 
Will anybody claim that the case of a failure to elect a President for want of a con¬ 
stitutional majority, a case provided for by conferring a power upon the House of 
Representatives voting by States, is the case of fault or negligence on the part of the 
people? If there be three parties holding different opinions in regard to great poli¬ 
cies which affect the interest, the honor, or the destiny of the Republic, and neither 
party can conscientiously surrender its honest convictions and aid in the establish¬ 
ment of a policy which it believes iniquitous or destructive, that is no fault and no 
neglect. It is inevitable from the constitution of human nature. 

In the beginning, the universal practice was to elect members of the House of 
Representatives only by a majority of the entire vote cast, and to elect Senators by 
a concurrent vote of two bodies who must agree to produce a result. It seems to us 
no valid reason can be given for supposing that if the two houses of a State legisla¬ 
ture, before the statute of 1866, failed to agree, the framers of the Constitution 
thought that it would be a just punishment that the State should be deprived of its 
equal voice in the Senate, or in case of an election on joint ballot, in later years, that 
there were three parties instead of two, so that there could be no majority, the State 
should be so punished. The cases where there are great political differences about 
public measures are few in comparison with the nonpartisan questions which come 
before the Senate, and the special interests of a State are much more likely to be 
affected by the latter than by the former. 

It is said that if there be a vacancy and the legislature meet and adjourn without 
filling it, if the power of appointment exist in the governor, there will be likely to 
be intrigue on the part of the executive or his political friends, so as to prevent a 
choice, and to enable him to appoint his favorite. But there is not the slightest his¬ 
torical evidence that any such idea occurred to the framers of the Constitution. It 
seems to us to be a refinement which they never would have considered, and which 
never should be considered by anybody in framing a constitution. Such intrigues 
can only be successful if they have the aid of some considerable political party. 
They would be quite as likely to desire to put over an election by which the office is 
to be permanently filled, whether the governor were to have power to fill the 
vacancy temporarily or no. Such intrigues, in the few cases where they are possi¬ 
ble, will be as likely to happen under one arrangement as under the other. But our 
constitutional arrangements are based, and must be based, on the theory that the 
executives chosen by the people will be, in general, upright, honorable, and consci¬ 
entious men, to whom such motives would be foreign and abhorrent. 


MATTHEW S. QUAY, OF PENNSYLVANIA. 


123 


These words, then, do not mean that the vacancy must come by accident when the 
legislature is not in session. Do they mean that the vacancy must begin when the 
legislature is not in session? There is a meaning, unquestionably, that may be given 
to the language which lends plausibility to the claim that it must be a fortuitous 
vacancy, although that claim is abundantly overthrown by the fact that the words 
are used frequently in our language in the other sense, that they are used twice in 
the Constitution in the other sense, and that the purpose of the Constitution would 
be defeated if they were not used in the other sense. But there is no such argu¬ 
ment in favor of the construction that the words “if a vacancy happen”. mean “ if 
a vacancy begin.” If the legislature adjourn on the 4th of March and do not meet 
again until the 1st of December, certainly a vacancy happens all through that inter¬ 
val, and there can be no reasoning that is not strained and far-fetched which can 
lead anybody to suppose that if a Senator died on the 3d of March and the legisla¬ 
ture adjourn on the 4th that it was the intention of the Constitution that the State 
should be left unrepresented. 

The Senator from Tennessee, Mr. Turley, in an able speech on the Corbett case, 
made in the Senate February 25, 1898, quoted with great effect the following lan¬ 
guage of Mr. Webster: 

“The Constitution utters its behests in the name and by authority of the people, 
and does not exact from States any plighted public faith to maintain it. On the 
contrary, it makes its own preservation depend on individual duty and individual 
obligation. Sir, the States can not omit to appoint Senators and electors. It is not 
a matter resting in State discretion or State pleasure. 

“The Constitution has taken better care of its own preservation. It lays its hand 
on individual conscience and individual duty. It incapacitates any man to sit in 
the legislature of a State who shall not have first taken his solemn oath to support 
the Constitution of the United States as they are to support their own State consti¬ 
tution. Nay, sir, they are as solemnly sworn to support it as we ourselves are, who 
are members of Congress. 

“No member of a State legislature can refuse to proceed, at the proper time, to 
elect Senators to Congress or to provide for the choice of electors of President and 
Vice-President any more than the members of this Senate can refuse, when the 
appointed day arrives, to meet the members of the other House to count the votes for 
those officers and ascertain who are chosen. In both cases the duty binds, and with 
equal strength, the conscience of the individual member, and it is imposed on all by 
an oath in the same words. 

“Let it, then, never be said, sir, that it is a matter of discretion with the States 
whether they will continue the Government or break it up by refusing to appoint 
Senators and to elect electors. They have no discretion in the matter. The members 
of their legislatures can not avoid during either, so often as the time arrives, without 
a direct violation of their duty and their oaths—such a violation as would break up 
any other government. ’ ’ 

That language seems to the undersigned a great reenforcement of their position. If 
it be true, and it is true, as Mr. Webster says, that the States can not omit to appoint 
Senators; that it is not a matter resting in State discretion or State pleasure; that the 
Constitution has taken better care of its own preservation and lays its hand on indi¬ 
vidual conscience and individual duty, then it seems to us impossible to believe that 
the Constitution has not provided a method of filling vacancies when the legislative 
power fails. It is individual conscience and individual duty on which the great 
expounder of the Constitution declares the Constitution lays its hand. But it is clear 
that individual conscience and individual duty must be totally inadequate to keep 
the seats in the Senate full, except as they are the conscience and the duty of the 
executive. The legislative power is never exercised by an individual. It could 
formerly only be exercised by the concurrent action of two bodies, each containing 
many individuals, each with a separate conscience, each with its own view of duty, 
which in many cases it will be found impossible to reconcile. Many instances have 
occurred in our history when a State legislature could not elect a Senator unless many 
of its members should cast their vote in gross violation of conscience and duty. And 
it was for that case, as well as other cases of vacancy, that it was the purpose 
of the Constitution to provide. 

It is not the ending of the term; it is not the failure of the legislature to elect; it is 
not the fact that the legislature has been in session after the vacancy began and has 
failed to elect, but the absence from the office of any person authorized to fill it to 
which the word “happen,” which expresses contingency, is applied. It is certain 
that terms will end. It is quite probable that there will be many cases when legis¬ 
latures can not elect. It is quite likely that Senators will die or resign, or that Sen- 
ators-elect will decline. In all these contingencies, described by the comprehensive 
word “happen,” the constitutional mandate that each State shall have two Senators 


124 


SENATE ELECTION CASES. 


is in force and there is a simple provision for -its execution by authorizing the execu¬ 
tive to fill the vacancy. 

It remains only to consider the precedents set by the Senate in dealing with like 
cases. 

In our judgment the decisions of the Senate made heretofore do not present any 
obstacle to the decision of this case on its merits and by the simple rule of the Con¬ 
stitution, as we understand it. We think the weight of those decisions tends to 
establish the construction for which we contend. They are somewhat in conflict 
with each other, and in some cases it is difficult to know on what grounds they pro¬ 
ceed. While great weight is to be given to a judgment of the Senate reached on 
careful consideration and debate, yet it is obvious that in determining how far they 
are to control later cases, very different considerations exist from those which apply 
to ordinary courts. They do not affect property which may have been acquired in 
consequence of a belief that the former decisions contain a rule of law which will 
stand. They do not involve penal consequences as do decisions which expound 
criminal laws. If the clear meaning of the Constitution be what we believe it to be, 
no harm can happen to anybody if it be so declared. The only result will be that 
States which otherwise would be left unrepresented will have their full constitutional 
representation without an interval. 

It is also true that frequently political or personal considerations enter into the 
votes of a political body, even into the votes of the Senate, which very seldom find 
admission into courts of justice, and unhappily such considerations have been in 
the past sometimes frankly avowed by Senators who have yielded to them, and the 
political opinions of contestants for seats in this body have had an influence on the 
judges of elections which has sometimes determined the vote in election cases. But, 
beyond all cavil or question, no such consideration entered into the fully discussed 
and carefully considered cases of Mr. Bell and Mr. Blair and Mr. Marston, where it 
was held that the executive can appoint in case of a vacancy at the beginning of the 
term, and that the word “happen” used in the Constitution does not mean “occur 
accidentally,” but means “exist,” and that the words “if vacancies happen” and 
the words ‘ ‘ if there happen to be a vacancy ’ ’ are equivalent. 

When these three gentlemen were admitted to their seats the Senate had a con¬ 
siderable majority for one political party whose members had no conceivable advan¬ 
tage to gain by the admission, for a short time, of another person of the same political 
faith. The members of the two parties in the Senate were divided upon the question, 
and took different sides in the debate. There probably has never been an occasion, 
from the beginning of the Government, of a vote in the Senate in which it was more 
absolutely certain that the votes were wholly upon the constitutional merits of the 
question. In all these cases the vacancies occurred by the ending of the constitu¬ 
tional term. No legislature could lawfully elect a Senator under the statute of 1866 
until June, although the Senatorial term began on the 4th of March. And it was 
held that the governor might appoint in those cases. We suppose that to be the 
accepted law, which would be enforced in a like case to-day. Now, if that be the 
accepted law, then the word “happen” does not mean “take place unexpectedly.” 
It means “occur,” and the rule of those cases is as applicable to the case where a 
legislature has met and failed to elect as where no legislature has met. 

There can be plausible reasons given, we agree, for claiming that the word ‘ ‘ happen ’ ’ 
means “occur unexpectedly.” But, as we conceive it, no plausible reason can be 
given for claiming that the words “if vacancies happen” mean “if vacancies begin.” 
We find no authority anywhere for giving such a meaning to the term. It is true 
that, in the three cases of Montana, Washington, and Wyoming, which were argued 
and decided practically as one, and in the case of Mr. Corbett, of Oregon, there was 
a different result. In the Corbett case it was a disputed question whether the legis¬ 
lature had existed after the vacancy began or no. In the case of Lee Mantle, of 
Montana, the vacancy began during the vacation of the legislature. The legislature, 
which was entitled to elect a successor in anticipation of the vacancy, had adjourned 
before the ending of the previous term without an election. 

The case of Allen, of Washington, was decided with the Lee Mantle case and with¬ 
out argument, a decision to which Mr. Beckwith, of Wyoming, submitted without 
further contest. At that time there was an earnest division in the Senate on an im¬ 
portant question relating to the currency, which created for the time being more 
earnest differences of opinion than those existing between the two great political 
parties on other questions. It was a time not favorable to a dispassionate, nonparti¬ 
san judgment. We prefer the authority of the New Hampshire cases, which was 
acted on also in the case of Mr. Pasco, of Florida, and we think that a decision which 
must inevitably deprive States in the Union for long periods of time of their rightful 
representation under the Constitution will not be permitted long to stand, and that 
no settlement of the question in derogation of the rights of the States and, as we 


MATTHEW S. QUAY, OF PENNSYLVANIA. 125 

conceive, in violation of the intent of the framers of the Constitution should be 
acquiesced in. 

We therefore recommend the following resolution: 

“Resolved, That Matthew S. Quay is entitled to a seat in the Senate as a Senator 
from the Commonwealth of Pennsylvania until the next meeting of the legislature.” 

GEO. F. HOAR. 

WM. E. CHANDLER. 

J. C. PRITCHARD. 

L. E. McCOMAS. 


The resolution reported by the committee, as hereinbefore set forth, was debated 
in the Senate February 22, 1900 (Congressional Record, vol. 33, pp. 2062, 2063); 
February 23, 1900 (ibid., pp. 2115-2122); February 26, 1900 (ibid., pp. 2233-2240); 
February 27, 1900 (ibid., pp. 2310-2316); March 2, 1900 (ibid., pp. 2462-2469); March 
3, 1900 (ibid., pp. 2503-2508); March 5, 1900 (ibid., pp. 2529-2533); March 6, 1900 
(ibid., pp. 2573-2579); March 15, 1900 (ibid., pp. 2929-2930, and 2931-2939); March 
16, 1900 (ibid., pp. 2963, 2964); April 4, 1900 (ibid., pp. 3732-3736); April 5, 1900 
(ibid., pp. 3795-3798); April 6, 1900 (ibid., pp. 3829, 3830); April 7,1900 (ibid., pp. 
3873, 3874); April9, 1900 (ibid., pp. 3913-3916); April 10,1900 (ibid., pp. 3965, 3966); 
April 11, 1900 (ibid., p. 4001); April 12, 1900 (ibid., pp. 4079-4094); April 14, 1900 
(ibid., p. 4159); April 21,1900 (ibid., pp. 4520-4525); April 23,1900 (ibid., pp. 4539- 
4557); April 24, 1900 (ibid., pp. 4586-4612). 

[Extracts from remarks of Mr. Hoar in opposition to the resolution that Mr. Quay was not entitled 

to a seat in the Senate as a Senator from the State of Pennsylvania. Found in the proceedings of 

March 2,1900, in the Congressional Record, vol. 33, pp. 2462-2464.] 

“Mr. President, I have stated my opinion in debate and in printed reports on this 
question a good many times during the last twenty years. I do not wish to go over 
those arguments now. I wish merely to state very briefly and compactly, if I can, 
one or two propositions which may not in the first instance seem directly applicable 
to the main argument, and yet it will be found by anybody who reads the debates or 
reports or who talks with Senators in private that these propositions or their opposite 
seem to be constantly in the heads of Senators who are reflecting upon this question. 

“In the beginning, I desire to ask the Senate to consider for a moment the con¬ 
dition of mind in the convention that framed the Constitution and the people who 
accepted it in regard to this question, with a view of ascertaining what they desired 
to do and would have done, if they could, by a proper expression. 

“They were constructing a Government in a convention in which 11 States only 
were taking part. They were providing for a Senate to consist of only 22 men, in 
which they were to deposit half the legislative power of that Government, a share in 
the executive power, and a great judicial power affecting the interests and rights of 
the whole country. They expected that body, in the main, as everybody who is 
familiar with the history of that time well knows, to be a nonpartisan body. It was 
contrary to etiquette for many years after the Senate was organized to allude to 
party considerations in debate in this Chamber. The Senate was expected to be a 
sort of political supreme court, composed of men in whose judgment, by reason of 
their age, their character, their experience in public affairs, the whole country would 
have confidence, and, as I have said, they expected in the beginning that there would 
be but 22 of them. Rhode Island and North Carolina came in afterwards. 

11 1 allude to this consideration to show how completely the idea that the whole 
country w r as interested in having the Senate full and how little the idea that it was a 
concern of a particular State alone whether there was a vacancy was in the mind of 
that convention and of the people. 

“They proceeded to make a rule, a mechanism, by w T hich this great assembly should 
be made up and should be kept full, and they did it by enacting that the State legis¬ 
latures should appoint Senators, and they went on to say, ‘ vacancies may be filled 
by the executive.’ That is the phrase they used. 

“When they had said that, which, beyond all question was an enactment that 
whenever under any circumstances there was no Senator appointed by a legislature 
here, the chair should be filled by the governor, they had previously doubted whether 
the governor should not have the entire power. He represented the whole people of 
the State. 

“He represented the dignity and the authority of the State in those days; he 
appointed every judicial officer and almost all of the high officers of the State—the 
sheriffs, district attorneys, judges. That was the arrangement they made, and that 
was passed by the Convention and reported in that form from the committee on detail. 
Then Mr. Ellsworth, than whom there was no greater constitutional lawyer and 


126 


SENATE ELECTION CASES. 


-tatesman on the face of the earth anywhere, made a brief remark reported by Mr. 
Madison. Mr. Randolph first said: 

“ ‘It is necessary in order to prevent inconvenient chasms in the Senate.’ 

“ He was speaking of the provision that vacancies may be filled by the executive. 
Then Mr. Ellsworth says: 

“ ‘As there will be but two members from a State, vacancies may be of great 
moment.’ 

“ Everything said on that subject, so far as reported, being to call the attention of 
the assembly to the importance of keeping the Senate without a vacancy. That 
being the condition of affairs, Mr. Madison, who was also the reporter of the debate 
as well as a participant in it, rose in his place and said, ‘But there is a question in 
England whether a man holding a legislative office may resign or decline, and for 
that reason I suggest a change in the phraseology.’ He then moved to strike out 
the words after ‘ vacancies ’ and insert the words, ‘ happening by refusal to accept, 
resignation, or otherwise, may be filled by the governor.’ 

“Mr. President, I hold it very unlikely that any body of men "would make that 
great change which made it possible that there might be long vacancies continued— 
and vacancies are now continuing in this body week after week, month after month, 
and year after year—when nobody said anything about it, when the mover of the 
amendment did not disclose any such important purpose, and only mentioned a much 
less important and more insignificant purpose. 

“ The honorable Senator from Tennessee says that this language is not to be taken 
in any artificial, or constrained, or technical sense, but is to be taken in a popular 
sense. To that I agree; but I would prefer to say that it should be taken in the 
sense in which the Convention used it, and in which the people who voted, or the 
assemblies who represented the people in accepting it, took it when they accepted it. 

“Let us see if we can not settle that. They used precisely the same words in 
regard to vacancies in two other cases; first, in regard to possible vacancies in the 
House of Representatives, and, second, in regard to possible vacancies in the execu¬ 
tive offices where the President appoints, and precisely those same words, ‘ if 
vacancies happen,’ have been from that day to this, held to include not only vacan¬ 
cies coming by chance, or in any particular way, but any possible vacancy arising 
under any circumstances at any time or under any conditions. 

“So, in order to limit this language as it is attempted to limit it here, you have got 
to say, first, that a convention that meant to do exactly what is claimed here by 
those in favor of the seating of Mr. Quay, five minutes before, without any question, 
all of them having so voted and whose committee had so reported, adopted language 
having a totally different meaning without any suggestion of a change of mind in 
this very important particular; and, next, that having adopted this language to 
express in this particular clause a totally different meaning, they used the same 
language in two other clauses in the same Constitution to express the purpose they at 
first entertained. 

‘Mr. President, I stated just now that I thought there was one consideration 
which, in the first instance did not seem to be so very important, but which seemed 
to .be in the minds of Senators who debated this question on the floor, or who discussed 
this question in their private consultations, or who may do so, and that is, that if a 
State legislature meet and fail to make an election of a Senator, the State has neglected 
to perform a duty; that the State is in fault. You find that phrase all through the 
speeches.on the other side of this question, that the governor can not appoint if the 
State legislature has neglected its duty. The honorable Senator from Tennessee, in 
his very interesting and able address the other day, said that if the State legislature 
neglected to elect, did not elect a Senator, its members had violated their oaths. 
Let us see if this proposition will bear the light. I maintain the contrary. I submit 
to the considerate judgment of Senators that not only it is no negligence, that it is 
no violation of an oath, but under many circumstances which are conceivable—and 
not only conceivable, but many conditions which frequently exist—the members of 
a State legislature would violate their oaths and depart from their duty if they made 
an election. 

“ In the beginning it was expected that two houses, two separate political persons, 
two corporate bodies, must separately choose the same man, and now there must be 
a majority of all the members of the joint body to choose a Senator voting for the 
same man. There are many cases familiar to all of us where these two bodies can 
not agree, or where there are three parties in the joint convention who can not 
agree, when the difference between them goes down not merely to the deepest inter¬ 
est of the Republic, but to the very root of the moral law itself. Take the case of 
one of our recent conditions; take the case in a Southern State of two legislatures, 
one believing and its members believing with all their might and main that the late 
election law was tyrannic, was unrepublican, was a violation not only of the Constb 


MATTHEW S. QUAY, OF PENNSYLVANIA. 


127 


tution, but of every sound principle of legislation and of the principles of public 
liberty, and the other body believing with equal sincerity that the failure by national 
authority to secure the purity of elections in regard to Representatives in the other 
House was a great public crime. Could they conscientiously agree on a Senator? 

“Suppose Aaron Burr were the candidate of one party and Thomas Jefferson of 
the other, or suppose Aaron Burr and Thomas Jefferson and some Federalist had 
been the three candidates, and a joint convention was to choose upon joint ballot. 
Is it neglect, is it a breach of the oath, is it a violation of constitutional duty, when 
any one of those representing those three opinions finds it impossible for him to 
agree with the men representing either of the others? 

“Why, Mr. President, the framers of the Constitution meant to provide for just 
that case in other respects, did they not? Twice in our history has there been a 
failure of the electoral majority, of the persons chosen to the electoral colleges to 
agree, and will my honorable friend from Tennessee, or any other honorable friend, 
claim that the men who voted for Aaron Burr during those long ballotings, or the 
men who voted for Thomas Jefferson, or in a later year, the men who voted for 
John Quincy Adams and for Andrew Jackson, or for Henry Clay, or for William H. 
Crawford, were violating their oaths and that, to be consistent in our logic, the 
American people ought to be punished by not having a President for four years? Do 
the electors violate their oaths when they fail to choose a President? Does the House 
violate an oath when it fails to make a choice? The framers of the Constitution pro¬ 
vided for the very case of a failure in bodies, which must act by majorities only, to get 
majorities for any particular candidate, and in case of President they went further and 
provided also in the case of a failure of the House of Representatives to elect. Two 
successive cases of failure to elect a President were provided for in the Constitution. 

“Can anybody believe, who reflects on it impartially, that the framers of the Con¬ 
stitution did not intend to make a similar provision that should cover every case and 
should cover the whole time in regard to the great office of Senator? Why, Mr. 
President, they knew as well as you know how important a single vote may be. A 
single vote within the last twelve or thirteen months would have changed the whole 
policy of our Government with reference to imperialism. A single vote saved Andrew 
Johnson from impeachment. A single vote passed the bill taking newspapers out of 
the mail, a vote which tended so much to bring on the political destruction of Martin 
Van Buren and the overthrow of a dynasty. Twice in my own Commonwealth a 
single vote has elected the chief magistrate. Now, is it to be supposed they would 
have for a moment contemplated the idea that the great State of Pennsylvania, which 
now has a people of more than double the entire population who accepted this Con¬ 
stitution, should be shorn of half its strength, and that the people of the United 
States should be without the presence here of a gentleman to utter the voice and 
represent the will of 3,5000,000 people? 

“Mr. President, the question before us is just that question. Did the men who 
framed this Constitution intend, would they have thought for a moment, that these 
great political corporations for great spaces of time on great questions should be 
without their lawful representation and their lawful voice here? 

“It may be said that the executive, after all, if the legislature fails to agree, may 
appoint somebody whom the people as represented by a majority of the legislature 
would not approve. But that is our universal policy. If you can not get a majority 
you do not leave the people interested unrepresented; you take a plurality, do you 
not? And in every instance now throughout the entire country, I believe, a plurality 
of voices elects the Representatives in the other House, and nowhere tea majority 
required. 

“Mr. President, when you couple with these considerations the fact that the lan¬ 
guage the framers of the Constitution used means in the same instrument in two 
other places that there shall be no vacancy and the office shall be kept full, that they 
did not utter, they did not make any suggestion of changing their mind in this par¬ 
ticular, that they had unanimously adopted language which said “vacancies shall be 
filled”—when you couple with that the constitutional declaration of the importance 
of this matter, as shown in the enactment that no State shall be deprived of its equal 
voice in the Senate without its own consent, the justice of my contention will be 
manifest. 

“The American people may, by constitutional processes and in a lawful way, make 
any changes in their Constitution whatever but one. They may establish a limited 
monarchy; they may do away with every safeguard of life, liberty, and property; 
they may amalgamate this country with races or States; but one thing they can not 
do, unless 45 States shall agree, and that is, leave a State with but half a voice in the 
Senate. 

“ These things, Mr. President, seem to me to be the large considerations that belong 
to this topic. They are such considerations as, it seems to me, would be in the minds 


128 


SENATE ELECTION CASES. 


of the statesmen in that convention and of that generation. If you had come in in 
the light of these things and somebody had got up and said, ‘ There will be a State 
by and by whose legislature meets but once in four years; there will be a great many 
States by and by whose legislatures meet but once in two years; now, if it happens 
that a week or ten days or a fortnight before one of those legislatures adjourns a 
Senator dies, or if it happens that one of those legislatures tries to elect a Senator and 
can not do it because there are three opirions, each conscientiously held,’ do you 
mean, gentlemen, that for two years, or for four years, or for one year, or for half a 
year, that that State shall be unrepresented? 

“It may happen in regard to two Senators from the same State. Frequently in 
our history there has been such a condition of things that two Senators were to be 
voted for at once, or were to be appointed at once. It happened once in my own 
State, and it happened in the case of Mississippi not long ago. Do you mean in such 
a case the governor can not appoint? ‘ Why, no,’ the answ er would heve been, ‘ We 
no more mean that that thing should happen, and that the whole country should be 
without the voice of that Senator, than we mean that the executive offices should be 
vacant under like circumstances, or that seats in the House of Representatives should 
be vacant under like circumstances; and you will observe that we have said in regard 
to the Senate just what we have said in regard to them.’ 

******* 

“Mr. President, I wish to call the attention of the Senate to one judicial construc¬ 
tion which I think has not been lately cited in the debate, and that is in the State of 
Pennsylvania. The constitution of Pennsylvania provides that the governor may fill 
any vacancy ‘which may happen’ in any judicial or elective office. It was held in 
Walsh v. Commonwealth (89 Pa. St. Rep., 419), just as it has been held in our dealing 
with executive officers, that w T here the legislature created a new county the governor 
was authorized to appoint all the officers of that new county without their being elect¬ 
ive officers ordinarily until an election could be held, on the grouild that there was 
a vacancy happening within the meaning of the constitution of the State. 

“Mr. President, my friend the Senator from Tennessee [Mr. Turley] says—and it 
struck me that the argument he made was more against than in favor of his proposi¬ 
tion—that if the framers of the Constitution meant what it is claimed they meant 
how easy it w r ould have been to have said ‘ appoint a Senator till the legislature fill 
the office.’ The fact that they did not say so, where they could have said it so easily, 
seems to him a strong argument that they did not mean it. But what they did say 
has been construed to mean exactly that thing. They said ‘ appoint until the next 
session of the legislature,’ and the Senate says, as they also said so emphatically, that 
the Senate should be always full; that it means till the next adjournment of the 
legislature, which they did not say. 

“I should like to ask this question, which I have never heard answered: What 
difference in principle is there between the case of a vacancy that begins at one time 
and the case of a vacancy that begins at another; between the case of a vacancy hap¬ 
pening according to your construction of the word ‘ happen’ and the case of a vacancy 
happening according to my construction of the word ‘happen?’ Is there any reason 
that can be conceived of on earth or in heaven which would induce any intelligent 
body framing a constitution to say that if the legislature has not met the governor 
may appoint, and if it has met the governor shall not appoint, unless what I have 
just spoken of now can be accounted a crime, perjury, negligence on the part of the 
legislature who can not agree? 

“Now, one of these things which our ancestors feared was a failure on the part of 
the State to take interest enough in this General Government to keep the seats in 
the Senate and in the House full. You will find that fear constantly in the early 
discussions on the Constitution, even down to Mr. Webster’s time. Mr. Webster, as 
late as 1825 or 1830, spoke of the danger that the States might not perform their con¬ 
stitutional duty of keeping the Senate full, and he said, in a passage cited in both the 
majority and minority reports on this question, that such a negligence would be fatal 
or destructive to any other country but ours. And then he adds, the Constitution, 
to secure us against this evil, lays hold of the individual conscience. But the indi¬ 
vidual conscience of the legislature is not sufficient for that purpose, and you are not 
safe any the more for the individual conscience of the legislature if they can not 
agree in regard to the character or the principles or the policy of the man upon whom 
they must unite. No oath can make a jury agree. No oath of office can create a 
majority among men conscientiously differing in opinion. But behind the legislature 
and behind the individual consciences of senators or representatives of the State, 
whose individual consciences may not let them agree, you have one place where the 
individual conscience is to be laid hold of, where it is sure to create individual action, 
and that is the conscience and the action of the executive. 


* * * 


* 


* 


* 


MATTHEW S. QUAY, OF PENNSYLVANIA. 


129 


“He has to agree with nobody; he has to reconcile no difference of opinion, and 
he has the power and the right and the sworn duty to fill the office if the legislature 
can not fill it; and in that way, and in that -way alone, is the security of the whole 
Republic assured. * ’ 

[Extracts from remarks of Mr. Burrows in support of the resolution that Mr. Quay was not entitled to 
a seat in the Senate as a Senator from the State of Pennsylvania. Found in the proceedings of 
April 12, 1900, in the Congressional Record, vol. 33, pp. 4079, 4080, 4081, 4082, 4083, 4085, 4086, 4087, 
4088, 4089, 4091, 4092, and 4094.] 

“Mr. President: 

******* 

‘ ‘ A recital of the facts in this case, in connection with the foregoing provisions of 
the Constitution, w’ill disclose the exact question involved. In 1893 the legislature 
of the State of Pennsylvania elected Matthew S. Quay a Senator for the full term of 
six years from the 4th of March, 1893. He accepted and held such office until the 
expiration of the term, March 3, 1899. The legislature failed to elect his successor, 
and as a consequence such office became vacant on the 4th of March, 1899. The 
legislature was in session, however, at the time such vacancy occurred, and had been 
since the 2d of January previous, and continued in session until the 20th of April, 
1899, when it adjourned sine die without electing a successor to Senator Quay for the 
succeeding term of six years. Thereafter, and on the 21st of April, 1899, the gover¬ 
nor of the State appointed and commissioned Matthew S. Quay to hold the office of 
Senator ‘until the next meeting of the legislature/ invoking as his authority for 
such action the provision of the Constitution already quoted, namely: 

“ ‘If vacancies happen during the recess of the legislature, by resignation, or other¬ 
wise, the executive of the State may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancies.’ 

******* 

“Proceeding, then, to the consideration of the exact issue involved, let me again 
direct the attention of the Senate to the wording of the constitutional provision in 
controversy: 

“‘If vacancies happen by resignation, or otherwise, during the recess of the legis¬ 
lature, the executive of the State may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancies.’ 

‘ ‘ The language employed is so clear, simple, and direct, the wonder to my mind is 
that there should ever have been any contention as to its import. If the rule laid 
down by Judge Story applicable to the construction of constitutions be applied to 
this provision, what room can there be for doubt or question as to its true meaning? 
Judge Story says: 

‘“Every word employed in the Constitution is to be expounded in its plain, 
obvious, and common-sense meaning, unless the context furnishes some ground to 
control, qualify, or enlarge it. Constitutions are not designed for metaphysical or 
logical subtleties, for niceties of expression, for critical propriety, for elaborate shades 
of meaning, or for the exercise of philosophical acuteness or judicial research. They 
are instruments of a practical nature, founded on the common business of human 
life, adapted to common wants, designed for common use, and fitted for common 
understandings. The people make-them; the people adopt them; the people must 
be supposed to read them, with the help of common sense, and can not be presumed 
to admit in them any recondite meaning or any extraordinary gloss.’ (I Story, 
p. 322.) 

“In the light of this rule of construction I confess it is difficult for me to compre¬ 
hend how any serious difference of opinion could possibly have arisen as to the sig¬ 
nificance of the words employed; and yet it is a fact that a sharp contention is now 
made as to the true intent and meaning of the provision in question. 

“ These antagonistic opinions are set forth at length in the report of the committee 
and the views of the minority submitted in this case, from which the exact points of 
difference are made to appear. They may be summarized as follows: 

“On the one hand, it is contended (and this is the view of the majority of the 
committee) that the vacancy to which the governor can make temporary appoint¬ 
ment must be a vacancy, in the language of the Constitution, that ‘ happens during 
the recess of the legislature,’ meaning thereby that it must be a vacancy having its 
beginning, its inception, during the time and when the legislature is not in session; 
and that a vacancy occurring when the legislature is in session , as was the fact in this 
case, is not such a vacancy as the governor of the State can supply by temporary 
appointment; and, further, that the vacancy which the governor can supply must 
not only ‘happen during the recess of the legislature,’ but it must occur, in the 
language of the Constitution, by ‘resignation or otherwise’—meaning by ‘other¬ 
wise ’ some like unforeseen event against which human foresight can not provide. 


S. Doc. 11-9 



130 


SENATE ELECTION CASES. 


“On the other hand, it is insisted (and this is the contention of the minority) 
that the expression ‘happen during the recess’ does not mean that the vacancy 
must actually ‘happen,’ or come into existence, have its inception during the 
recess,’ but the true intent and meaning is that if a vacancy happen to exist in 
recess! though it had its inception and beginning when the legislature was in session, 
yet, upon the adjournment of the legislature, such a vacancy becomes a vacancy 
‘happening during the recess,’ within the meaning of the Constitution, which the 
executive of the State can supply by temporary appointment; and that the expres¬ 
sion by ‘resignation or otherwise’ embraces all conceivable vacancies from what¬ 
ever cause, and that therefore it follows whenever the executive finds a vacancy 
existing for any cause, and the legislature is not in session at the time, he may make 
temporary appointment to such vacancy until the next meeting of the legislature. 
I think I have stated accurately the exact issue. 

******* 

“It will be observed that the exercise of this power of temporary appointment by 
the State executive is not mandatory, as in the case of vacancies in the House, but 
he 'may make temporary appointments until the next meeting of the legislature.’ 
It lies wholly within his discretion. He may convene the legislature, or make 
temporary appointment until the legislature shall meet in regular or extraordinary 
session. The reason for leaving the exercise of this power within the discretion of 
the executive was given by Mr. Ellsworth in the debate in the Constitutional Con¬ 
vention in explanation of this provision, when he said: 

“ ‘It is only said the executive may supply vacancies. When the legislative meet¬ 
ing happens to be near the power will not be exerted.’ 

“For this reason the exercise of the appointive power was purposely made dis¬ 
cretionary. 

“And thus by these various provisions the necessary machinery was provided, not 
only for the primary selection of the membership of both Houses, but the supplying 
of vacancies which might happen in such membership—a machinery so perfect and 
complete that it need only to be employed by those in whose hands it is intrusted 
to insure, at all times, a full membership of both Houses of Congress. 

“In the examination of these various provisions it will be observed that the legis¬ 
lature of the State is, under the Constitution, the sole depository of the power to 
elect United States Senators either for a full term or to fill a vacancy. The executive 
of a State can not choose Senators nor fill vacancies—this power is lodged exclusively 
with the State legislature. The executive ‘may make temporary appointments’ 
under certain circumstances and conditions, but in no case is he authorized to fill 
either the original term or any vacancy which may happen therein. That power is 
lodged exclusively with the legislature. This will be conceded. 

“ When, therefore, Senator Quay’s term expired on the 4th of March, 1899, itw r as 
the right and the duty of the legislature of the State of Pennsylvania, then in session, 
to choose his successor for the full term of six years. This was the express mandate 
of the Constitution, and, as Webster said in the constitutional convention of Massa¬ 
chusetts in 1820; 

“ ‘ Whatsoever is enjoined on the legislature of the State by the Constitution of 
the United States the legislature is bound to perform.’ 

“Not only this, but by the act of Congress parsed in 1866 it is provided that— 

“ ‘The legislature of each State which is chosen next preceding the expiration of 
the term for which any Senator was elected to represent such State in Congress shall, 
on the second Tuesday after the meeting and organization thereof, proceed to elect 
a Senator in Congress. ’ 

“The legislature of Pennsylvania, therefore, in session on the 4th of March, 1899, 
at the time the vacancy occurred in this case, was, in the language of the act of 1866, 
the legislature ‘ chosen next preceding the expiration of the term for which ’ Senator 
Quay w r as elected. This particular legislature, therefore, in session on the 4th of 
March, 1899, and remaining in continuous session until the 20th of April, 1899, was 
resting under the double mandate of the Constitution and the law to elect a Senator 
for the full term of six years, and, as I said before, no other power was authorized to 
perform this duty. It failed to discharge that constitutional and legal obligation, and 
on the 20th day of April, 1899, adjourned without day, leaving the office of United 
States Senator vacant. It is the vacancy thus created which the governor of the 
State of Pennsylvania attempts to supply by a temporary appointment, invoking as 
his authority the constitutional provision already cited. 

“ This is the storm center around which the entire controversy rages. To this 
point, therefore, I direct the attention of the Senate. 

That the executive of a State has the power, under certain circumstances and 
conditions, to make temporary appointments of United States Senators is not denied, 


MATTHEW S. QUAY, OF PENNSYLVANIA. 


131 


but the extent of such power is the only matter in controversy. The executive is 
empowered to make temporary appointments under certain restrictions and limitations , 
clearly set forth and defined. He has no authority, however, to supply all vacancies 
unless the construction contended for by the minority shall prevail. That power 
was expressly withheld by the Convention that framed the Constitution. 

4 ‘ It may be well at this point to glance at the proceedings of the Convention to 
determine, if possible, the true intent and meaning of this provision, and what the 
framers of the Constitution designed to do and did do in relation to supplying vacan¬ 
cies. Nothing further was necessary to perfect the machinery for the election of Sen¬ 
ators—it only remained to provide for the contingency of vacancies. 

“ It will be well, therefore, to trace—and I will do it briefly—the plan for creating 
the Senate and for supplying vacancies therein. There were twenty-four resolutions 
agreed to in the Convention expressive of the general plan of government. Three of 
these resolutions—the fourth, the eleventh, and the twenty-second—relate to the 
organization of the Senate. These general resolutions were referred to the committee 
on detail. 

“ When the committee on detail made its report to the Convention, the Conven¬ 
tion modified the report in many particulars, and after such modification of the report 
of the committee on detail it was referred to the committee on style. After the com¬ 
mittee on style reported, the Convention itself modified the report of that committee, 
and as thus modified it was embodied in the Constitution. 

“And at this point, for the convenience of the argument, I present in order the 
steps taken in perfecting the provision in relation to the Senate and vacancies therein: 

“ First. The resolutions of the convention, as agreed to and referred to committee 
on detail. 

“Second. Report of committee on detail. 

“ Third. Modification by the convention of the report of the committee on detail 
and as referred to committee on style. 

“Fourth. Report of committee on style. 

“ Fifth. Modification of report of committee on style as finally embodied in Consti¬ 
tution. 

“ ‘4. Resolved , That the members of the second branch of the Legis- . CO R e s o l u - 
lature of the United States ought to be chosen by the individual legis- convention ^nd 
latures, to be of the age of thirty years at least, to hold their offices referred to com- 
for six years, one-third to go out biennially. * * *’ mittee on detail. 

“ ‘ 11. Resolved , That in the second branch of the Legislature of the 
United States each State shall have an equal vote.’ 

“ ‘22. Resolved , That the representation in the second branch of the 
Legislature of the United States shall consist of two members from 
each State, who shall vote per capita.’ 

“Vacancies may be supplied by the executive until the next meet- ( 2 ) Report of 

ing of the legislature. the . committee 

on detail. 

Vacancies happening by refusals to accept, resignations, or otherwise (3) Modifica- 
may be supplied by the legislature of the State in the representation cations by con- 
of which such vacancies shall happen, or by the executive thereof of thecommittee 
until the next meeting of the legislature. on detail, and as 

thus modified referred to committee on style. 

“And if vacancies happen, by resignation or otherwise, during the (4) Report of 
recess of the legislature of any State the executive thereof may make the committee 
temporary appointments until the next meeting of the legislature. on s y e. 

“And if vacancies happen, by resignation or otherwise, during the (5) Report of 
recess of the legislature of any State the executive thereof may make committee on 
temporary appointments until the next meeting of the legislature, I®* e convention 
which shall then fill such vacancies. and inserted in 

the Constitution. 

“It would be well, therefore, as I say, to trace the plan for creating the Senate 
and supplying vacancies therein, from its inception to its completed form, as it was 
finally agreed to and embodied in the Constitution as it stands to-day. 

“ The subject came up in convention in committee of the whole, and all the vari¬ 
ous plans and suggestions were considered as to the manner of electing Senators, 
their term of service, qualifications, etc. The committee of the whole finally reported 
to the convention, as the result of its deliberations, a series of resolutions, the follow¬ 
ing of which related to the constitution of the Senate: 

“ ‘j Resolved, That the members of the second branch of the national legislature 
ought to be chosen by the individual legislatures, to be of the age of 30 years, at 
least, to hold their office for a term sufficient to insure their independence, namely, 
seven years.’ 


132 


SENATE ELECTION CASES. 


“When this resolution came up in the convention for consideration a great con¬ 
tention arose, among other things, over the basis of representation, thesmaller States 
refusing to agree to any plan which did not give them equal voice, in the Senate. 
This brought the convention, as Sherman said, to a ‘full stop,’ requiring the efforts 
of a subcommittee of one from each State to adjust differences and harmonize con¬ 
flicting views, and the final upshot of the matter was that the convention agreed to 
twenty-three propositions as embodying its views on the fundamental principles of 
the government to be established, three of which related to the Senate, as follows: 

“ ‘ Fourth. That the members of the second branch of the legislature of the United 
States ought to be chosen by the individual legislatures, to be of the age of 30 years, 
at least, to hold their offices for six years, one-third to go out biennially. 

“‘Eleventh. That in the second branch of the legislature of the United States 
each State shall have an equal vote. 

“ ‘Twenty-second. That the representation in the second branch of the legislature 
of the United States shall consist of two members from each State who shall vote per 
capita.’ 

“These twenty-three resolves of the convention above mentioned were then 
referred to the ‘committee of detail’ to work out and formulate and express in 
proper phrase the ideas embodied therein. It will be remembered that there was 
also referred to this committee, in connection with these resolutions, Mr. Pinckney’s 
draft of a federal government, presumably for such helpful suggestion as it might 
contain and in which for the first time, so far as I have been able to discover, the 
idea of supplying vacancies appears. 

“The Congress, by Pinckney’s plan, was to consist of a house of delegates and a 
senate, and it was provided by this plan that— 

‘ ‘ ‘ vacancies in the house of delegates were to be supplied by the executive authority 
of the State in which they shall happen.’ 

“ The senate was to be chosen by the house of delegates and— 

“ ‘ The house of delegates shall fill all vacancies that arise from death or resignation 
for the time of service remaining of the member so dying or resigning.’ 

“By referring the Pinckney plan, which contained a method for supplying vacan¬ 
cies, to the committee of detail, this question was also before the committee, although 
up to that time the convention had expressed no opinion upon that subject. 

“There went to the committee of detail, therefore, three settled principles in the 
organization of the Senate which the convention had determined: 

“ First. That the Senators should be chosen by the legislatures. 

“ Second. That there should be equal representation, and to that end there should 
be two Senators from each State, voting per capita. 

“ Third. A suggestion in the Pinckney plan as to the method of filling vacancies. 

> “The committee of detail, to which was referred the three resolves above men¬ 
tioned and the Pinckney plan, reported back the following provision: 

“ ‘ The Senate of the United States.shall be chosen by the legislatures of the several 
States. Each legislature shall choose two members. Vacancies may be supplied 
by the executive until the next meeting of the legislature. Each member shall have 
one vote.’ 

******* 

“ When the report of the committee of detail came up for consideration in the 
convention, objection was at once made to the supplying of vacancies by the execu¬ 
tive as conferring upon that officer a too liberal grant of power, as shown by the fol¬ 
lowing debate: 

“ ‘ Mr. Wilson objected to vacancies in the Senate being supplied by the executives 
of the States. It was unnecessary, as the legislature will meet so frequently. 

“ ‘Mr. Randolph thought it necessary, in order to prevent inconvenient chasms 
in the Senate. 

“ ‘Mr. Williamson.* Senators may resign or not accept. This provision, therefore, 
is absolutely necessary.’ 

“Mr. Madison, in order to prevent doubts whether resignation could be made by 
Senators or whether they could refuse to accept, moved to strike out the words after 
‘ vacancies and insert the words— 

“ ‘ happening by refusals to accept, resignations, or otherwise may be supplied by 
the legislature of the State in the representation of which such vacancies shall happen 
or by the executive thereof until the next meeting of the legislature.’ 

. “Now note what they did. Instead of ‘ vacancies may be supplied by the execu¬ 
tive until the next meeting of the legislature,’ the convention changed that and said 
‘ vacancies may be supplied by the legislature or by the executive until the next 
meeting of the legislature.’ 

“ So that that clause of the Constitution read: 

Vacancies happening by refusals to accept, resignations, or otherwise may be 


MATTHEW S. QUAY, OF PENNSYLVANIA. 


133 


supplied by the legislature of the State in the representation of which such vacancies 
shall happen or by the executive thereof until the next meeting of the legislature.’ 

“ What does that mean but that if the legislature is present it shall fill the vacancy, 
and the governor can not act in such a case? 

“Gouverneur Morris, in support of Madison, said: 

u 1 This is absolutely necessary; otherwise, as members chosen into the Senate are 
disqualified from being appointed to any office by section 9 of this article, it will be 
in the power of a legislature, by appointing a man against his consent, to deprive the 
United States of his services.’ 

‘ ‘ In lieu, therefore, of the provision, as reported by the committee of detail, that 
‘ vacancies may be supplied by the executive until the next meeting of the legisla¬ 
ture,’ the report was modified by the convention to conform to the suggestions made, 
so. that it read: ‘ Vacancies happening by refusals to accept, resignations, or other¬ 
wise may be supplied by the legislature of the State in the representation of which 
such vacancies shall happen or by the executive thereof until the next meeting of 
the legislature.’ Instead, therefore, of unbridled power being conferred upon the 
executive to fill vacancies arising from whatever cause, his power was thus still 
further curbed and restricted. 

******* 

“A vacancy happening by the expiration of a term, as in this case, confessedly is 
not a vacancy caused by ‘refusal to accept’ or ‘by resignation,’ but solely by the 
failure of the legislature to act, and therefore not within the competency of the 
executive to supply, unless such a vacancy is embraced within the meaning of 
the word ‘otherwise.’ Of this I will have something to say later on. I will observe 
in passing, however, that independent of the known rule of construction, that a word 
of general import is controlled and limited by the specific word with which it is 
associated, it is a little remarkable that at no time and nowhere in the proceedings 
of the convention was there the remotest suggestion by any member of that conven¬ 
tion that the legislature might fail to do its duty, and that it was intended to confer 
upon the executive the power of appointment in such a contingency. 

“Neither Madison nor anyone else ever suggested filling such a vacancy. They 
suggested death, removal, expulsion, resignation, but never the failure of the legis¬ 
lature to do its duty. If that had been the purpose, how easy it would have been to 
have said ‘ if vacancies happen by failure of the legislature to elect, by resignation, 
or otherwise.’ They surely would not have left so vast and far-reaching power to be 
inferred from the word ‘otherwise’ as used in that connection. 

******* 

“It would seem much more reasonable to suppose that, when Madison suggested 
a doubt as to whether Senators could resign or refuse to accept, these words were 
inserted for the purpose of removing that doubt, and then instead of inserting, as in 
the Pinckney plan, the word ‘death,’ etc., and enumerating all the other casualties 
which might happen to an incumbent of the office, they were all embraced in the 
word ‘ otherwise.’ And it will be observed that every suggestion of vacancy by the 
convention, by speech or amendment, had reference to something happening to 
the incumbent of the office and not to dereliction of duty on the part of the legisla¬ 
ture. It is hardly to be presumed that the framers of the Constitution intended to 
embrace within the meaning of that word a failure of the legislature to perform its 
duty, for that would have been to admit in the beginning a fatal defect in their plan 
of government. 

“More than this, as Senator Yance well said in the Mantle case: 

“ ‘Can the Senator point out any case in the Constitution where, a duty being 
primarily imposed upon an officer therein named, the performance of that duty is 
conferred upon another officer contingent upon the failure of the first officer to per¬ 
form his duty? ’ 

“And Senator Garland, the ex-Attorney-General of the United States, said in the 
debate in 1879: 

“‘It is a well-established principle of jurisprudence that when one tribunal has 
jurisdiction and fails to exercise it, no other tribunal can assume it.’ 

“It will be observed that the convention still further modified the report of the 
committee of detail, which, it will be remembered, provided that— 

“ ‘vacancies may be supplied by the executive until the next meeting of the legisla¬ 
ture.’ 

“by adding— 

“ ‘ or by the legislature of the State.’ 

“et cetera, so that the provision as a whole was made to read as follows: 

“‘Vacancies happening by refusals to accept, resignation, or otherwise may be 
supplied by the legislature of the State in the representation of which such vacancies 
shall happen or by the executive thereof until the next meeting of the legislature.’ 


134 


SENATE ELECTION CASES. 


“By this it will be seen that the convention, instead of conferring the power of 
supplying vacancies exclusively upon the executive, vested it primarily in the legis¬ 
lature, so jealous were they of executive control over the matter of choosing Senators. 
The authority of the executive was secondary. They were evidently determined 
that the executive should not be permitted to take the selection of Senators either 
for a full term or to fill a vacancy away from the legislature, where the primary 
power had been deposited. The manifest purpose in this modification was to make 
it incumbent upon the legislature, in the first instance, to fill the vacancy, but if the 
legislature was not in session or for any cause could not act, then the vacancy was to 
be supplied ‘by the executive until the next meeting of the legislature’—until the 
legislature, the primary power, could act. In this form, as thus modified by the 
convention, it was referred to the committee on style, which reported it back to 
the convention in the following form: 

“And if vacancies happen, by resignation or otherwise, ‘during the recess of the 
legislature of any State ’ ”— 

“This is the first time that clause appears— 

“ ‘ during the recess of the legislature of any State, the executive thereof may make 
temporary appointments until the next meeting of the legislature.’ 

“ It is conceded that the committee on style was only authorized to put in proper 
form and phrase that to which the convention had already agreed. Now note what the 
committee did. First, they dropped the words ‘ refusals to accept’ as evidently being 
surplusage, being included within the meaning of the word ‘otherwise.’ They had 
evidently abandoned the suggestion of Madison, that it was necessary to include these 
words in order to confer upon a Senator the right of ‘ refusal to accept. ’ Secondly, 
they dropped the words— 

“ ‘ by the legislature of the States in the representation of which such vacancies shall 
happen’— 

“ evidently for the reason that the legislature, if in session or if convened, had the 
power to fill vacancies under its original grant of power to elect Senators, and this 
provision was, therefore, unnecessary, and inserted in lieu thereof the words— 

“ ‘during the recess of the legislature of any State’— 

“thus still further limiting the power of the governor over vacancies to those which 
should happen when the legislature was not in session—when the primary power 
was absent and could not act; so that the provision as formulated by the committee 
on style read: 

“ ‘And if vacancies happen by resignation, or otherwise, during the recess of the 
legislature of any State, the executive thereof may make temporary appointments 
until the next meeting of the legislature.’ 

“It is worthy of note, too, in this connection that the committee on style dropped 
the words ‘ may be supplied ’ and inserted, for the first time, the words ‘ may make 
temporary appointment.’ Why was this done? ‘ Supply’ is defined to mean ‘ to fill 
up,’ but it is clear the convention never intended to allow the governor to fill the 
vacancy; and so these words were stricken out and ‘may make temporary appoint¬ 
ment’ inserted, ‘temporary’ meaning, as defined by lexicographers, ‘lasting for a 
time only; existing or continuing for a limited time; not permanent.’ From this it 
will be seen how guarded the convention was in conferring this power of appoint¬ 
ment upon the executive of the State, and how determined they were to restrict it 
within the narrowest possible limits. Not content with this, when the convention 
took up the report of the committee on style, to compare it with the articles agreed 
to and referred to that committee, they modified the provision as reported from the 
committee on style by adding after ‘ legislature ’ the words ‘ which shall then fill 
such vacancies,’ as if to set definite bounds to the exercise of this limited power, 
beyond which the executive could not go, and, as thus modified, it was embodied in 
the final draft of the Constitution. 

“Now, it has been said that the clause, ‘which shall then fill such vacancies,’ 
refers to those vacancies to which the governor might make temporary appointments; 
and if the governor can not make a temporary appointment in this case, then the 
legislature can not fill. The expression ‘shall fill such vacancy’ does not refer to 
such vacancies as the governor may supply, but to the original vacancy. Our friends 
on the other side insist upon reading into the Constitution power to supply vacancies, 
which the executive does not possess, and then draw the conclusion if the governor 
has not the power to supply then the legislature can not fill. 

“This is a correct history, step by step, of the development of this provision from 
its inception to its final completion and embodiment in the Constitution, where it 
stands to-day in clear and unmistakable phrase: 

“ ‘If vacancies happen by resignation, or otherwise, during the recess of the legis¬ 
lature of any State, the executive thereof may make temporary appointments until 
the next meeting of the legislature, which shall then fill such vacancies ’ 
****** 


* 


135 


MATTHEW S. QUAY, OF PENNSYLVANIA. 

“ The jvfiole contention of the minority resolves itself into this—the executive may 
v ai ^ vacanc y he finds existing when the legislature is in recess. A vacancy and 
the absence of the legislature are the only prerequisites for executive action. The 
tramers of the Constitution when they said, ‘ If vacancies happen by resignation, or 
otherwise, during the recess of the legislature of any State the executive thereof may 
make temporary appointment until the next meeting of the legislature, which shall 
then fill such vacancy/ intended only to say the executive of the State may fill all 
vacancies when the legislature is not in session. 

. “ If at the expiration of a term, though the legislature may be in session at that 
time, and remain in session many weeks thereafter, yet if it finally adjourn without 
making a choice of Senator, immediately upon such adjournment the governor may 
appoint until the next meeting of the legislature, which is construed to mean not only 
to the meeting of the legislature, but to its final adjournment if no choice is made. 
If at the next meeting of the legislature thereafter there should again be no choice, 
immediately upon its adjournment the governor may again appoint until the next 
meeting of the legislature, and so continue the process indefinitely until some legis¬ 
lature shall make a choice of a Senator, so that seats in this Chamber are to be filled 
by governors so long and as often as the legislature shall refuse or fail to elect. 

“In this very case, as an illustration, in the approaching election in Pennsylvania, 
only about six months distant, if ex-Senator Quay should be a candidate for reelec¬ 
tion it will not be necessary for him to carry a majority of the legislature, but only 
to secure a sufficient number of adherents to prevent an election and force an adjourn¬ 
ment, when Governor Stone can again disregard the mandates of his own constitution, 
refuse to call a session of the legislature, and again issue his commission to Senator 
Quay to hold a seat in this body until the next meeting of the legislature, and then, 
upon the theory of the minority, he would be seated, and thus repeat the process for 
the full term of six years, and thus continue to hold a seat in this body by the favor¬ 
itism of the governor, and independent of the will of the legislature of the State of 
Pennsylvania. Is the Senate of the United States prepared to indorse a construction 
■which would lead to such results? 

******* 

‘ ‘And in this connection I can not refrain from again quoting the words of Hamil¬ 
ton in the Federalist (p. 393), where he says in explanation of this provision of 
the Constitution: 

“ ‘It may be alleged that, by declining the appointment of Senators, they’ — 

“Meaning the legislatures— 

“ ‘might at any time give a fatal blow to the Union. It is certainly true that the 
State legislatures, by forbearing the appointment of Senators, may destroy the National 
Government. So far as that construction may expose the Union to the possibility of 
injury from the State legislatures, it is an evil, but it is an evil which could not have 
been avoided without excluding the States in their political capacities wholly from a 
place in the organization of the National Government.’ 

“But how could the State legislatures, if the contention of the minority be sound, 
by forbearing the appointment of Senators, destroy the National Government? The 
executive can appoint whenever and as often as the legislature fails to elect. How 
it would have quieted the apprehension of Alexander Hamilton for the safety of the 
National Government if he could have but known that the governors of the States 
had the power to keep the Senate always full, though the legislatures should fail to 
do so. He was evidently laboring under the delusion that if the legislatures failed to 
elect there was no remedy, and the whole fabric of government would be placed in 
jeopardy. How natural it would have been for Hamilton, in his defense of this provi¬ 
sion of the Constitution, if such a defense were permissible, in answer to the criticism 
that the States, by withholding Senators, might break up the National Government, 
to have said in reply what is contended for now by the minority, that if the legis¬ 
lature fails to elect at any time the Constitution empowers the executive of the State 
to appoint Senators, and so keep the Senate always full. It seems inexplicable that 
Hamilton, a member of the convention that framed the Constitution, should have 
lost sight of this power of the governor to supplement the failure of the legislature. 
******* 

“And so we have this plain provision of the Constitution distorted and made to 
read, ‘whenever vacancies exist for any cause, and the legislature is not in session, 
the executive may make temporary appointment until some legislature fills the 
vacancy.’ When I consider how this provision is warped and twisted, that it may 
temporarily serve personal or party ends, I am again reminded of the words of Sen¬ 
ator Hill: 

“ ‘When I hear gentlemen on either side of this Chamber, in either party of this 
country, take that plain language of the Constitution and construe it to apply to any 


136 


SENATE ELECTION CASES. 


vacancies that may occur by any means, by the failure of the legislature, willfully or 
otherwise, to elect a Senator, that the governor can come in and supply the vacancy, 
I m ust, say it excites my profound astonishment, more than that, my sorrow. It 
absolutely shakes my confidence in the efficacy of written constitutions. 

“‘The primary object of the Constitution is to put in the State legislature the 
power to fill this office, and nobody else; but casualties may occur, death may come, 
resignation may come, Senators may be expelled, there may be divers casualties by 
which the term thus filled by the legislature may become vacant, and vacant during 
the recess of the legislature when Congress may be in session. It is important, 
therefore, as was said by Mr. Randolph, to allow the governor power to fill chasms, 
but not to fill an original term.’ 

“ What did the great Seward, of New York, say? 

“‘This alarm’— 

“ Speaking of the effect of the contention of the minority— 

‘“This alarm will be increased by the fact that the proceeding will operate to 
strengthen and increase the provisional prerogative of the governors of the States at 
the expense of the power conferred by the Constitution on the legislatures of the 
States; for nothing is clearer than that the power conferred on the governors to fill 
vacancies was designed to be but occasional and exceptional, and subordinate to that 
devolved on the legislature, which w#s designed to be general, complete, and 
supreme.’ 

“William H. Seward, it will be admitted, w T as a great constitutional lawyer. 

“I commend to the Senators from Illinois the language of Justice Davis, who, 
when in the Senate, commenting upon this very provision, said: 

‘“The whole question is in a narrow compass, and the view of the Constitution 
which has been presented by different gentlemen who have discussed the subject, 
especially by the Senator from Georgia [Mr. Hill], and last by the Senator from 
Wisconsin [Mr. Carpenter], in my judgment presents the proper construction of that 
instrument. 

“ ‘I do not believe’— 

“Says Judge Davis— 

“ ‘that the vacancy mentioned in that clause of the Constitution is anything else than 
a portion of the six years’ term where there is no person qualified to discharge the 
functions of the office. The principle asserted in the Lanman decision is that the 
legislature of a State shall provide for all vacancies which must occur at stated and 
known periods, and that the expiration of a regular term of service is not such a con¬ 
tingency as is embraced in the governor’s power under the Constitution; that where 
opportunity is given to the legislature to choose a Senator the governor can not 
appoint. A vacancy within the meaning of the constitutional provision does not 
arise by the failure of a legislature to elect. 

“ ‘I think that the decision in Lanman’s case, as I understand it, gives the true 
interpretation of the Constitution, that when the legislature had the opportunity of 
providing a Senator but failed, the governor can not appoint.’ 

“Attorney-General Garland, a great lawyer, said, in the debate on the Bell case 
in 1879: 

‘“Mr. President, the position that I take in reference to this matter from my 
reading of the Constitution is that legislatures of the States, being the original con¬ 
stituency of the United States, must themselves by election place a Senator in this 
body at the beginning of a new term; or, to state the proposition somewhat differ¬ 
ently, it is not within the meaning of the Constitution that the governor of a State can 
put upon the floor of the Senate a Senator at the commencement of a new term of 
six years, or a new term that might be by the meeting of the legislature afterwards 
for a shorter period. Before the governor of a State can appoint a Senator to fill 
what he may consider a vacancy in the Senate, there must not only be an unfilled 
seat but a broken term previously held by someone else. 

******* 

“ ‘According to the interpretation of the Senator from Delaware, if the legislature 
of any State of the eleven that first ratified the Constitution had failed to send two 
Senators here to compose the Senate, the governor of the State could have sent two 
to compose the body. There is no halfway ground, because we have heard it enun¬ 
ciated here by the Senator from Delaware and by the minority report that if the 
vacancy exists, by a robust and athletic construction of the Constitution, somebody 
must fill it—it must not go unfilled. 

******* 

‘“Now, we have the vacation of these seats by law. When that is done, accord¬ 
ing to the fair interpretation of this instrument, the legislature alone can step in. 
Then : 

“‘ “And if vacancies happen by resignation or otherwise.” 


MATTHEW S. QUAY, OF PENNSYLVANIA. 


137 


‘“That is, “if vacancies happen” after the seats have been filled, after the legis¬ 
lature has chosen, “by resignation or otherwise,” meaning by expulsion or by death. 
The word “happen,” whether you enlarge it or whether you narrow it in its con¬ 
struction, affects at last the incumbent in the seat by some accident or by some casu¬ 
alty. Hence the word “ happen” is used, referring to something which takes him 
out of the seat, leaving both an unfilled seat and a broken term.’ 

******* 

“Mr. Carpenter, of Wisconsin, said: 

“ ‘When the legislature last in session previous to the expiration of a Senatorial 
term, having power to.make an election, refuses or neglects to do so, then until an 
election can be made, in conformity with the Constitution of the Union, the State, 
by its legislature, has consented to waive its right to equal representation in this 
Chamber. ’ 

“Did Stephen A. Douglas, of Illinois, know anything about the Constitution? He 
said: 

“ ‘ Where a Senatorial term has expired by its own limitation under the Constitution, 
and an absence of representation results from that cause, it is not a vacancy within 
the meaning of the Constitution. Vacancies happening in the representation of the 
Senate during a recess of the legislature may be filled by the governor of a State. 

“ ‘ But I presume no man ever contended.—certainly not since the Lanman case— 
that a governor, under the power to fill vacancies, could make an appointment to an 
original term of office. 

“ ‘Therefore, when we speak of vacancies happening in the constitutional sense, 
we must be understood as meaning cases where the term has once been filled and 
subsequently becomes vacant by registration or otherwise. 

******* 

“ ‘ Why, sir, the Constitution provides that in the election of Senators generally it 
shall be done by the legislature of each State; it provides by implication that in case 
of vacancies which occur during the session of the legislature the legislature shall 
elect; but it also provides that if the vacancy occurs during the recess of the legisla¬ 
ture the legislature shall not elect in the first instance, but that the governor shall 
appoint, and that the appointment shall continue until the next meeting of the legis¬ 
lature, and that the legislature shall then elect.’ 

“Senator Cass, of my own State, a great lawyer and a man of recognized ability, 
said: 

“ ‘ How, then, stands this case, sir? The third clause of the first article of the Con¬ 
stitution provides for the composition of the Senate by fixing the term of service 
and the mode of selecting the Senators, permanent and temporary. It declares that 
“ if vacancies happen, by resignation or otherwise, during the recess of the legislature 
of any State, the executive thereof may make temporary appointments until the next 
meeting of the legislature, which shall then fill such vacancies.” The regular terms 
of Senators are for six years, and the “ vacancies ” herein provided for are the unex- 
pired portions of such terms, which are to be “filled ” by the legislature when it can 
act, and when it can not act to be occupied by temporary executive appointments. 
If, therefore, a Senator resign, or his seat is otherwise vacated, except by the expira¬ 
tion of his term, the “ vacancy ” is for his original period of service, to be temporarily 
appointed to by the governor or “filled” by the legislature.’ 

******* 

“ Senator James A. Bayard held to the same doctrine: 

“ ‘ You find that in reference to the full term of a Senator the provision is that he 
shall hold his office for six years and be chosen by the legislature. The executive 
has no authority there. And you find, further, that if the legislature is not in ses¬ 
sion at the time a vacancy occurs by resignation or otherwise, though it may not even 
be known to them, yet no authority in such a case is confided to the executive to 
appoint. 

“ ‘ You find, in other words, that within the intent of the Constitution no author¬ 
ity over the subject is meant to be intrusted to the executive whenever the primary 
p 0wer —the legislature—is in existence as an organized body. I am aware that at 
one time it was decided that even in reference to the full term the executive of a 
State might make an appointment until the legislature met; but that construction 
was subsequently overruled by the Senate in the case of Mr. Lanman in the year 1825, 
and ever since the practice has been uniformly in accordance with the decision in 
that case. 

******* 

“ ‘In reference to the full term, it can not be doubted that no authority whatever is 
confided to the executive. The negation of power in any other event than when the 
vacancy occurs in recess shows that it was the intent of the Constitution that the 


138 


SENATE ELECTION CASES. 


executive was merely to provide for casualties happening w r hen the legislative power, 
which is the primary power, was not in existence, and, of course, could not act. 

“Senator Mason, of Virginia, said: 

“ ‘ The Constitution has created Senatorial terms and has declared that those terms 
shall last for six years; they are so arranged by another provision of the Constitution 
that one-third of the Senate go out biennially. What is the language of the Consti¬ 
tution as affecting the duration of the term? The Constitution declares that the seats 
of the Senators of the first class shall be vacated at the end of two years, of the sec¬ 
ond class at the end of four, and of the third at the end of six years, thus creating 
the terms. The language of the Constitution is that the seat “shall be vacated” by 
the lapse of time, and then new terms commence. 

“ ‘A few words now as to the precedents. Until Lanman’s case, according to my 
recollection, it w as considered by the Senate, or rather it was decided by the Senate, 
manifestly without consideration, that it was competent for the State executive when 
a term expired in the recess of the legislature to treat that as a vacancy and to fill it 
accordingly. Such a practice was common until the decision in Lanman’s case. I 
confess that on looking at the Constitution my first impression was that the practice 
was correct, but on examining the Constitution and weighing it carefully and delib¬ 
erately I can not entertain a doubt that the decision of Lanman’s case was correct, 
and that when a term expires by constitutional limitation it is not a “vacancy” which 
the executive can fill.’ 

“ Senator Butler, in the Phelps case in 1854, said: 

“ ‘ It must be conceded that the authority to choose a Senator to commence a new 
term of six years, after the efflux of a regular term, is exclusively vested in the State 
legislature.’ 

“And referring to the Lanman case, he said: 

“‘In 1825 Lanman’s case came up for consideration involving both questions. 
In that case, after a very full debate, it was solemnly decided that it was not compe¬ 
tent for the governor of a State to put a member on this floor at the commencement 
of a term. In other w r ords, it was decided that his power of appointment could not 
be substituted for the election of the State legislature. Even if such had not been 
the decision in the case of Lanman, I take it for granted that such would be, and 
must necessarily be, the decision now.’ 

“ In the great debate of 1852, Jefferson Davis, then a Senator from the State of 
Mississippi, said: 

‘ ‘ ‘ Sir, there are two modes of electing Senators—the one by the legislature of a 
State, the other by executive appointment. And how comes it, Mr. President, that 
there are two modes? It is vrell to understand the reason. It was foreseen by the 
framers of the Constitution that vacancies would occur—would ‘ ‘ happen, ’ ’ as the 
Constitution expresses it—during the ‘ ‘ recess ’ ’ of the legislature of a State, and con¬ 
sequently th^t a State would be deprived of its representation, for a time at least, 
unless that vacancy could be supplied. Hence, it gives to the executive of a State 
the power of a temporary appointment, as the Constitution expresses it, a temporary 
appointment to hold until the legislature, as I shall show you, has had an opportu¬ 
nity to appoint; and when the legislature has once had that opportunity and declined 
or omitted to exercise its power, the executive no longer has any power over the 
subject. It has been justly enough observed here that the word “until,” in the 
clause of the Constitution, qualifies the word “power;” that is, he shall appoint to 
hold until the legislature discharges that duty, or has an opportunity to discharge it.’ 
****** * 

“The other day the Senator from Maryland read a letter from Senator Edmunds— 
and I am apprehensive that all the Senators did not hear it, and I am therefore going 
to repeat it—written September 1, 1885. 

“ Mr. Bacon. Written by whom? 

“Mr. Burrows. By Senator Edmunds, in relation to the Oregon matter. 

“ ‘Burlington, Vt., September 1 , 1885. 

“ ‘Dear Sir: I have yours of the 21st ultimo. The Constitution, as you know, 
provides respecting Senators that “if vacancies happen by resignation or otherwise 
during the recess of the legislature of any State, the executive thereof may make 
temporary appointments until the next meeting of the legislature, which shall then 
fill such vacancy.” 

“ ‘It has been held by the Senate, and may now be considered as the settled law 
of that body, that if a State legislature has once acted or had an opportunity to act 
while a vacancy exists, the governor has no power to supply the failure of the legis¬ 
lature to fill it up. 

“ ‘Applying this rule to the case of Oregon, a vacancy existed on and after the 4th 


MATTHEW S. QUAY, OF PENNSYLVANIA. 


139 


day of March, 1885, and your legislature, as I understand it, continued to sit a long 
u:ne after that date and had the opportunity to fill the vacancy, so that the vacancy 
(.id not happen during a recess of the legislature, and it now only exists because the 
legislature failed in its duty of keeping its Senatorial representation full. 

“ 4 If we construe this clause of the Constitution as some Democratic Presidents 
have the corresponding clause respecting the President filling vacancies in offices, so 
as to make it mean that if vacancies happen to exist during any recess the governor 
may fill them, it would be an indefinite power to be exerted just so long as the legis¬ 
lature failed, which is not according either to the language or spirit of the Constitu¬ 
tion. But, however we may reason about it, the Senate will be obliged to reverse 
its repeated decisions on the subject in order to admit a Senator appointed by the 
governor under such circumstances. Trusting that in some way a Republican Sena¬ 
tor from Oregon may be preserved to us at a time when the only security for safe 
and conservative government lies within the Senate. 

“ ‘I am, very truly, yours, George F. Edmunds.’ 

“ Will the Senate read the opinion of this great constitutional lawyer out of the 
record and trample his words under foot? 

******* 

“ In this connection I desire to call special attention of the Senate to the case of 
Kensey Johns, which arose in 1794, only five years after the organization of the first 
Senate, in which body there were a considerable number of members who had pre¬ 
viously been members of the Constitutional Convention, and, of course, participated 
in the framing of this provision of the Constitution, and whose opinions, therefore, 
should command great weight. It is said— 

“ ‘ That contemporary construction put upon the language or meaning of a consti¬ 
tution at the time of its adoption, or shortly after, by members of the convention 
which framed it, is properly resorted to to illustrate and confirm the text, to explain 
a doubtful phrase, or to expound an obscure clause.’ 

“The opinion of members of the Senate at that time, who were members of the 
Constitutional Convention, ought, therefore, to come to us with very great force. 

“ The Senator from Wisconsin [Mr. Spooner] very well said recently, in his 
remarks on this case, in reply to the Senator from Maryland [Mr. Wellington]: 

“ ‘ He has invoked the lessons and the actions of the past. I agree with him that 
profound respect is to be accorded to the action of prior Senates. I agree with him 
that the men who acted in this body near the time of the adoption of the Constitu¬ 
tion knew quite as much about it as we who come here many, many years after its 
adoption.’ 

“The Senator then called the attention of the Senator from Maryland to a case 
which occurred in 1809, the Smith case, and said: 

“ ‘ No man in that body—it was only twenty years after the adoption of the Con¬ 
stitution, and, I suppose, or have supposed, they knew as much about the Constitu¬ 
tion in 1809 as we do in 1900, and cared as much for their obligation to support it as 
we do.’ 

“If the opinion of members of the Senate twenty years after the organization of 
the Government come to the Senator from Wisconsin with so much force, how con¬ 
vincing must be the opinion of the Senate only five years after its organization, when 
nearly one-fourth of its membership consisted of gentlemen who had been members 
of the Constitutional Convention? Let me invoke, therefore, the attention of the 
Senate particularly to this case. 

“George Read, a Senator from the State of Delaware, resigned his seat in the 
United States Senate on the 18th day of December, 1793. The legislature of the 
State met in January, 1794, and adjourned in February thereafter without filling the 
vacancy. 

“On the 19th of March, 1794, the governor appointed Kensey Johns. There 
had been a meeting of the legislature between the resignation and the appointment. 
His credentials were referred to the Committee on Elections of the Senate, consisting 
of seven members, which committee reported, with only one dissenting vote, that 
the governor had no power to make the appointment, and Mr. Johns was rejected. 
True, that was not an appointment by the governor at the beginning of a term, but 
the same principle was involved, namely, that where the legislature has the oppor¬ 
tunity to fill a vacancy happening in the representation of the State in the Senate of 
the United States, and fails to perform its duty in this regard for any reason, the 
governor has no power to appoint. 

“The determination of the Senate in that case ought to appeal to us with very 
great force. It came up and was decided within five years after the inauguration of 
the Government, when Washington was in the executive chair and the men who 


140 


SENATE ELECTION CASES. 


had participated in the Constitutional Convention were still alive and. whose opin¬ 
ions were undoubtedly sought and must have been potential in shaping the judg¬ 
ment of the Senate. More than that, in that very Senate sat several Senators who 
were members of the Constitutional Convention which considered and framed these 
provisions of the Constitution now in controversy, and certainly they ought to have 
known, and unquestionably did know, just what these provisions meant. 

“There was Pierce Butler, of South Carolina, a Delegate in the old Congress and 
the first Senator from that State; Oliver Ellsworth, of Connecticut, who had served 
in the old Congress, been a judge of the superior court, elected a Senator from that 
State, afterwards appointed Chief Justice of the Supreme Court of the United States 
bv President Washington, and subsequently became minister to France; Rufus King, 
of Massachusetts, a Delegate in the old Congress, member of the State legislature, 
who subsequently became a Senator from the Empire State and minister to England; 
John Langdon, of New Hampshire, of legislative experience in the old Congress, 
elected to the Senate in 1789, and became President pro tempore of that body; and 
Alexander Martin, of North Carolina, speaker of the State senate and governor of 
his State. 

“All these Senators who participated in the work of framing the Constitution of 
the United States voted that Mr. Johns was not entitled to a seat, and admission was 
refused him by a vote of 20 to 7. It is no violent presumption to assume that these 
Senators, who were members of the Constitutional Convention and participated in 
its formation, knew what they were doing when they voted that the governor had 
no power to appoint Kensey Johns. 

“I desire to read from the Official Record, the Annals of Congress, Third Congress, 
the proceedings of the Senate in this case in detail. 

u ‘Monday, March 24, 1794 . 

“ ‘ Kensey Johns appeared and produced his credentials of an appointment by the 
governor of the State of Delaware as a Senator for the United States, which were 
read. Whereupon, it was moved that they be referred to the consideration of the 
Committee of Elections before the said Kensey Johns should be permitted to qualify, 
who are directed to report thereon; and it passed in the affirmative. 


“ ‘ Thursday, March 27. 


‘ 1 ‘ The Senate proceeded to the consideration of the report of the Committee of 
Elections, to whom was referred the credentials of Kensey Johns, appointed by the 
executive of the State of Delaware to be a Senator of the United States. On motion 
that the report be recommitted, it passed in the negative; and, after progress, it was 
ordered that the further consideration of this report be postponed until to-morrow. 

“ ‘Friday, March 28. 


“‘The Senate resumed the consideration of the report of the Committee of Elec¬ 
tions, to whom was referred the credentials of Kensey Johns, appointed by the 
executive of the State of Delaware to be a Senator of the United States; which report 
is as follows: 


“‘“The Committee of Elections, to w T hom was referred the credentials of an 
appointment by the governor of the State of Delaware of Kensey Johns as a Senator 
of the United States, having had the same under consideration, report: 

“That George Read, a Senator for the State of Delaware, resigned his seat upon 
the 18th day of December, 1793, and during the recess of the legislature of said State. 

‘ “‘That the legislature of the said State met in January and adjourned in Feb¬ 
ruary, 1794. 

. That upon the 19th day of March, and subsequent to the adjournment of the 
said legislature, Kensey Johns was appointed by the governor of said State to fill the 
vacancy occasioned by the resignation aforesaid. 

“ ‘ “ Whereupon the committee submit the following resolution: 

“““ Resolved, That Kensey Johns, appointed by the governor of the State of 
Delaware as a Senator of the United States for said State, is not entitled to a seat in 
the Senate of the United States, a session of the legislature of said State having inter- 
vened between the resignation of the said George Read and the appointment of the 
said Kensey Johns.’ ” 

“‘On the question to agree to this report it passed in the aflirmative—yeas, 20- 
nays 7.’ J ’ ’ 

“From this report of the Committee on Elections, which consisted of Bradley, 
Els worth, Mitchell, Rutherford, Brown, Livermore, and Taylor, it will be observed 


MATTHEW S. QUAY, OF PENNSYLVANIA. 141 

that the committee reported against the right of Kensey Johns to a seat, upon the 
express ground that— 

‘“A session of the legislature of the said State having intervened between the 
resignation of the said George Read and the appointment of the said Kensey Johns.’ 

“That being the case, it was the duty of the legislature to elect. The report was 
adopted by the Senate by a vote of 20 yeas to 7 nays. It is worthy of note in this 
connection that the Committee on Elections, which gave this case special preliminary 
consideration, consisted of seven Senators, among whom was Elsworth, who was 
one of the most conspicuous members of the Constitutional Convention and of whom 
the distinguished Senator from Massachusetts [Mr. Hoar] very properly said the 
other day in debate: 

“‘Than whom there was no greater statesman and constitutional lawyer on the 
face of the earth anywhere.’ 

“And he, as a member of this committee, not only reported against the right of 
the governor to appoint in that case, but on the final vote in the Senate voted to 
keep the seat empty and that the State should go unrepresented of one Senator until 
a Senator had been properly elected. He did not regard it so important to keep the 
Senate full, even when it consisted of but thirty members, as to admit to member¬ 
ship anyone not lawfully commissioned. Elsworth, it must be remembered, was 
not only the ‘greatest lawyer on earth,’ and a member of the Constitutional Con¬ 
vention, but he was also a member of the committee of detail to amplify and give 
expression to the principles of government which the convention had adopted, and 
was, therefore, specially qualified to speak, and his opinion in this case comes to us 
with peculiar force. It is not saying too much of Mr. Elsworth that he was not only 
one of the most active members of the Constitutional Convention, but one of the 
most influential, and when he gave his interpretation of this provision of the Con¬ 
stitution, it ought to come home to the members of the Senate to-day, as it did to 
the Senate then, with convincing power. 

* * * * * * * 

“Mr. President, we have reached a crisis in the history of the Senate fraught with 
the utmost peril, not only to the Senate but to the country. The eyes of the nation 
are upon us. What we do to-day will not be overlooked or forgotten. We can not 
change front unnoticed. We are not sitting behind closed doors. The Senate can 
not afford to reverse its record of one hundred and eleven years. It can not afford 
to reject a claimant for a seat to-day and, on the same state of Tacts, admit another 
claimant to-morrow. It can not afford to give credence to the charge that the Sen¬ 
ate of the United States is, after all, but a social club, where good-fellowship is a 
better credential than a certificate of election in conformity to law. In a word—we 
can not afford to do that which defies all precedent, strikes a fatal blow to the per¬ 
petuity of the Senate as constituted under existing forms of law, and shakes public 
confidence in the integrity of this body. 

‘‘ But ‘ to this issue it has come at last.’ The long and unbroken line of precedents, 
stretching over a century of national history, budded by the considerate judgment 
and patriotic solicitude of the great men who have gone before us, strengthened by 
the approving judgment of the Senate but two years ago, which has stood through 
all these years as a bulwark against the assaults of partisan zeal and the more insid¬ 
ious assaults of favoritism, is at last to be broken down and demolished, and this 
great council of States exposed to political intrigue and the machinations of ambi¬ 
tious men. 

“Mr. President, when this work of demolition has been consummated, if it must 
be, and the people realize that the Senate, trampling under foot the precedents of a 
century, has solemnly adjudged that it will receive into its membership the appointees 
of governors whenever the legislature fails to elect or can be prevented from choos¬ 
ing a Senator; that governors may fill the seats in this Chamber whenever vacant for 
any cause, though themselves conspirators to produce vacancies; that the Senate 
itself, with the cooperation of State executives, will hereafter make up the member¬ 
ship of this body out of their personal or political friends, independent of the legis¬ 
latures and regardless of the will of the people—when that time comes, I repeat, 
there will come with it the remedy, swift and complete. The people will not sub¬ 
mit to it. They ought not to submit to it. They are wedded to representative gov¬ 
ernment and they will not permit it to be subverted. There is yet a power mightier 
than Senates, more potent than Senators—a power that can make and unmake both. 

“And let me say to Senators that no sooner shall you establish the doctrine con¬ 
tended for by the minority than there will be a popular uprising in this country 
which no power can resist or suppress to take from State legislatures and governors 
all control over the election of Senators and lodge it with the sovereign people. 
Already 34 States, through their legislatures, have demanded it. The House of 
Representatives has repeatedly proposed it. 


142 


SENATE ELECTION CASES. 


“I implore Senators therefore to follow the beaten path of the century, in the 
footsteps of Elsworth, Benton, Vance, Cass, Bayard, Hill, Davis, Garland, Cameron, 
Douglas, Mason, Blaine, Edmunds, Conkling, Carpenter, and the long line ot illus¬ 
trious men whose genius and learning illumines the way, and so save the Senate 
from public scandal and reproach, restore and preserve its ancient dignity, and insure 
the perpetuity of representative government.” 

Wednesday, April 4 , 1900. 

The Secretary read the resolution reported from the Committee on Privileges and 
Elections January 23, 1900, as follows: 

“ Resolved, That the Hon. Matthew S. Quay is not entitled to take his seat in this 
body as a Senator from the State of Pennsylvania.” 

Mr. Chandler moved to amend the resolution by striking out the word “not.” 

(Cong. Rec., vol. 33, p. 3732.) 

Tuesday, April 24, 1900. 

The President pro tempore announced that the motion before the Senate was that 
offered by Mr. Chandler to strike out the word “not” from the pending resolution. 

The amendment was rejected by the following vote: 

Ayes—Messrs. Allison, Baker, Carter, Chandler, Clark (Wyo.), Cullom, Daniel, 
Davis, Deboe, Foraker, Frye, Gear, Hansbrough, Jones (Nev.), McComas, McLaurin, 
Mason, Morgan, Nelson, Penrose, Perkins, Platt (N. Y.), Scott, Sewell, Shoup, 
Spooner, Stewart, Sullivan, Taliaferro, Warren, Wetmore, and Wolcott—32. 

Nays—Messrs. Allen, Bacon, Bard, Bate, Berry, Burrows, Butler, Clay, Cockrell, 
Culberson, Hale, Harris, Hawley, Heitfeld, Jones (Ark.), Lindsay, McBride, McCum- 
ber, McEnery, McMillan, Martin, Money, Platt (Conn.), Proctor, Quarles, Ross, 
Simon, Teller, Tillman, Turley, Turner, Vest, and Wellington—33. 

A vote was then taken on the adoption of the resolution reported by the Commit¬ 
tee on Privileges and Elections, and the same was agreed to by the following vote: 

Ayes—Messrs. Allen, Bacon, Bard, Bate, Berry, Burrows, Butler, Clay, Cockrell, 
Culberson, Hale, Harris, Hawley, Heitfeld, Jones (Ark.), Lindsay, McBride, McCum- 
ber, McEnery, McMillan, Martin, Money, Platt (Conn.), Proctor, Quarles, Ross, 
Simon, Teller, Tillman, Turley, Turner, Vest, and Wellington—33. 

Nays—Messrs. Allison, Baker, Carter, Chandler, Clark (Wyo.), Cullom, Daniel, 
Davis, Deboe, Foraker, Frye, Gear, Hansbrough, Jones (Nev.), McComas, McLaurin, 
Mason, Morgan, Nelson, Penrose, Perkins, Platt (N. Y.), Scott, Sewell, Shoup, 
Spooner, Stewart, Sullivan, Taliaferro, Warren, Wetmore, and Wolcott—32. 

(Cong. Rec., vol. 33, pp. 4612,4613.) 


MARTIN MAGINNIS VS. WILLIAM A. CLARK, OF MONTANA. 143 


[Fifty-sixth Congress, First and second sessions.] 

MARTIN MAGINNIS v. WILLIAM A. CLARK, of Montana. 

After the resignation by William A. Clark of his seat in the Senate as a Senator from the State of 
Montana (see case of William A. Clark, of Montana, supra), the lieutenant-governor and acting 
governor of the State of Montana, on the 15th day of May, 1900, appointed William A. Clark to fill the 
vacancy caused by the resignation of Mr. Clark. The governor of the State of Montana, claiming 
that this appointment was brought about by fraud and collusion, revoked the appointment, and on 
the 19th day of May, 1900, appointed Martin Maginnis to fill the vacancy aforesaid. 

The conflicting claims of Mr. Clark and Mr. Maginnis were laid before the Senate, and a resolution 
was introduced in the Senate May 25, 1900, to refer the credentials of the claimants to the Committee 
on Privileges and Elections, but no action was taken on this resolution. Mr. Clark did not appear or 
attempt to claim a seat in the Senate otherwise than by the presentation of his credentials, and the 
Senate took no action in regard to determining the title of either of the claimants to the seat made 
vacant by the resignation of Mr. Clark. 

The question involved in the case was which appointment was legal and valid, the one made by 
the lieutenant-governor or the one made by the governor of the State of Montana. This question 
was not decided by the Senate either directly or indirectly by any action of the Senate in the case. 

The history of the case here given consists of the proceedings of the Senate in the case as published 
in the Congressional Record, a statement of the days on which the resolution to refer the matter to 
the Committee on Privileges and Elections was debated in the Senate, with a reference to the pages 
of the Congressional Record containing the same. 

PROCEEDINGS IN THE SENATE. 


Saturday, May 19, 1900. 

The President pro tempore laid before the Senate the following telegram from the 
governor of Montana: 

“Butte, Mont., May 18, 1900. 

“Hon. William P. Frye, 

11 President of the United States Senate, Washington, D. C. 

“Sir: This will inform you and the Senate of the United States that on account of 
collusion and fraud by Hon. W. A. Clark in resigning and securing an appointment 
to the Senate by the lieutenant-governor, I have this day disregarded and revoked 
said appointment by the lieutenant-governor, and have this day appointed Hon. 
Martin Maginnis, of Montana, United States Senator, to fill the vacancy caused by 
the resignation of Hon. W. A. Clark. His credentials will be forwarded in due course. 

“ROBT. B. SMITH, 

‘ ‘ Governor of Montana. ’ ’ 

(Cong. Rec., vol. 33, p. 5732.) 

Tuesday, May 22, 1900. 

Mr. Carter presented the following credentials; which were read and laid on the 
table: 

State of Montana, Executive Chamber, 

Helena, Mont., May 15, 1900. 

“ Whereas a vacancy has occurred in the representation of the State of Montana in 
the Senate of the United States, caused by the resignation of Senator William 
Andrews Clark; and 

“Whereas the legislature of said State is not in session, but in recess; 

“Therefore, be it known that, pursuant to the power vested in me by the Consti¬ 
tution of the United States, I, A. E. Spriggs, the lieutenant-governor and acting gov¬ 
ernor of said State, do hereby apoint William Andrews Clark, a citizen and inhabit¬ 
ant of said State, to be a member of the Senate of the United States, to fill the 
vacancy so caused and existing as aforesaid, to have and to hold the said office and 
membership until the next meeting of the legislature of this State. 

“In witness whereof I have hereunto set my hand and affixed the great seal of 
said State, at the city of Helena, in said State, this 15th day of May, A. D. 1900. 

“[seal.] A. E. Spriggs, Acting Governor. 

“By his excellency the acting governor: 

“T. S. Hogan, Secretary of State.” 

(Cong. Rec., vol. 33, p. 5850.) 


144 


SENATE ELECTION CASES. 


Friday, May 25, 1900. 

Mr. Carter presented a certificate from the governor of the State of Montana, 
appointing Martin Maginnis to fill a vacancy in the Senate of the United States, 
which was read, as follows: 

“In the name and by the authority of the State of Montana. 

“ To all to whom these presents shall come, greeting: 

“Whereas a vacancy has happened in the representation of the State of Montana 
in the Senate of the United States by reason of the resignation of William Andrews 
Clark; and 

“Whereas the legislature of said State of Montana is not in session, but in recess; 

“Therefore, know ye that I, Robert B. Smith, governor of the State of Montana, 
by virtue of the authority vested in me by the Constitution and laws of the United 
States, do hereby appoint Martin Maginnis, a citizen of the United States and an 
inhabitant of the State of Montana, to be United States Senator for said State of Mon¬ 
tana, to fill the vacancy caused as aforesaid; and by virtue of the authority in me 
vested as aforesaid I do commission him, the said Martin Maginnis, to be United 
States Senator for Montana, hereby authorizing and empowering him to execute and 
discharge all and singular the duties appertaining to said office, and to enjoy all the 
privileges and immunities thereof, until the next meeting of the legislature of said 
State. 

“In witness whereof I have hereunto set my hand and caused the great seal of the 
State to be affixed at Helena, the capital, this 19th day of May, A. D. 1900. 

“[seal.] Robt. B. Smith. 

“By the governor: 

“T. S. Hogan, Secretary of State.” 

The credentials were ordered to lie on the table. 

Mr. Chandler submitted a resolution, which was read and laid on the table, as 
follows: 

“Resolved, That the credentials showing the appointment as Senator from the State 
of Montana of William A. Clark, signed by Acting Governor A. E. Spriggs, and the 
credentials showing a like appointment of Martin Maginnis, signed by Governor 
Robert B. Smith, be taken from the table and referred to the Committee on Privi¬ 
leges and Elections, and that said committee be directed to inquire whether either 
of said appointees has been duly and legally appointed to a seat in the Senate as 
Senator from said State of Montana; and if so, to report which of said appointees is 
entitled to be admitted to the seat. ’ ’ 

(Cong. Rec., vol. 33, pp. 6017, 6018.) 

Tuesday, June 5, 1900. 

Mr. Chandler submitted the following resolution; which was referred to the Com¬ 
mittee to Audit and Control the Contingent Expenses of the Senate, and ordered to 
be printed: 

Resolved, That the Committee on Privileges and Elections, while making inquiry 
as to the respective claims of William A. Clark and Martin Maginnis to a seat in the 
Senate from the State of Montana, be authorized to send for persons and papers, to 
swear and examine witnesses, and to employ a stenographer; that said committee may 
act by a subcommittee, and may sit during the recess of Congress and during the 
sessions of the Senate, and that the expenses of the inquiry may be paid from the 
contingent fund of the Senate upon vouchers to be approved by the chairman of the 
committee.” 

(Cong. Rec., vol. 33, p. 6693.) 

The resolution submitted by Mr. Chandler on the 25th day of May, 1900, was called 
up in the Senate December 4, 1900, December 5, 1900, and December 6, 1900 (Cong. 
Rec., vol. 34, pp. 29, 58, 93); was debated in the Senate December 11, 1900 (Cong. 
Rec., vol. 34, pp. 216-219), and December 17, 1900. (Ibid., pp. 354, 355.) 

Wednesday, December 19, 1900. 

Mr. Chandler offered the following resolution: 

“Resolved, That the Committee to Audit and Control the Contingent Expenses of 
the Senate be discharged from further consideration of the resolution authorizing the 
Committee on Privileges and Elections to send for persons and papers in connection 
with the inquiry concerning the appointments of William A. Clark and Martin 
Maginnis as Senators from the State of Montana.” 

(Cong. Rec., vol. 34, p. 419.) 

The foregoing resolution was laid before the Senate and debated December 20,1900. 

(Cong. Rec., vol. 34, pp. 462-466.) 


MARTIN MAGINNIS VS. WILLIAM A. CLARK, OF MONTANA. 145 


COMPENSATION OF CONTESTANTS. 

° Thursday, February 21, 1901. 

Mr. Chandler submitted the following resolution; which was referred to the Com¬ 
mittee on Privileges and Elections: 

“ Resolved , That there he paid out of the contingent fund of the Senate to Martin 
Maginnis the sum of $2,500, in payment of expenses necessarily incurred by him in 
prosecuting his title to a seat in the Senate from the State of Montana under appoint¬ 
ment of the governor of Montana.” 

(Cong. Rec., vol. 34, p. 2726.) 


Saturday, February 23, 1901. 

Mr. Hoar, from the Committee on Privileges and Elections, reported the following 
resolution; which was referred to the Committee to Audit and Control the Contingent 
Expenses of the Senate: 

11 Resolved, That there be paid out of the contingent fund of the Senate to Martin 
Maginnis the sum of $2,000 in payment of expenses necessarily incurred by him in 
prosecuting his title to a seat in the Senate from the State of Montana under appoint¬ 
ment of the governor of Montana.” 

(Cong. Rec., vol. 34, p. 2869.) 


Thursday, February 28, 1901. 

Mr. Jones, of Nevada, from the Committee to Audit and Control the Contingent 
Expenses of the Senate, to whom was referred the resolution reported by Mr. Hoar 
on the 23d instant, reported it without amendment; and it was considered by unani¬ 
mous consent and agreed to. 

(Cong. Rec., vol. 34, p. 3189.) 


S. Doc. 11-10 



146 


SENATE ELECTION CASES. 


a 


A LIST SHOWING ALL THE APPOINTMENTS OF SENATORS BY 00] - 
ERNORS OF STATES PRIOR TO JANUARY 1, 1903, ARRANGED IN THE 
ORDER OP TIME THAT THE CREDENTIALS WERE READ IN THE 
SENA TE. 


1. John Walker, Virginia.—Appointed March 31, 1790; produced credentials and took 
seat April 26, 1790; death of William Grayson, and refusal of George Mason to act after 
election. James Monroe elected November 9, 1790, to fill unexpired term ending March 
3, 1791; credentials dated November 10, 1790; produced credentials and took seat De¬ 
cember 6, 1790. 

2. Kensey Johns, Delaware.—Appointed March 19, 1794; produced credentials March 
24,1794; resignation of George Read; Mr. Johns not admitted. Henry Latimei elected 
February 7, 1795, to fill unexpired term ending March 3, 1797; produced credentials 
and took seat February 28, 1795. 

3. George Walton, Georgia.—Appointed November 16, 1795; credentials dated No¬ 
vember 18, 1795; produced credentials and took seat December 18, 1795; resignation of 
James Jackson. Josiah Tatnall elected February 20, 1796, to fill unexpired term end¬ 
ing March 3, 1799; credentials dated February 27, 1796; produced credentials and took 
seat April 12, 1796. 

4. William Cocke, Tennessee.—Appointed April 22, 1797; produced credentials and 
took seat May 15, 1797; expiration of his previous term on March 3, 1797, and non- 
election of a successor. Under these credentials Mr. Cocke held the seat the first ses¬ 
sion of the Fifth Congress, May 15 to July 10, 1797. Andrew Jackson elected September 
26, 1797, for term ending March 3, 1803; credentials dated October 19, 1797; produced 
credentials and took seat November 22, 1797. 

5. William North, New York.—Appointed May 5, 1798; produced credentials and took 
seat May 21, 1798; resignation of John Sloss Hobart. James Watson elected August 
17, 1798, to fill unexpired term ending March 3, 1803; produced credentials and took 
seat December 11, 1798. 

6. Daniel Smith, Tennessee.—Appointed October 6, 1798; produced credentials and 
took seat December 3, 1798; resignation of Andrew Jackson. Joseph Anderson elected 
to fill unexpired term ending March 3, 1803; produced credentials and took seat De¬ 
cember 2, 1799. 

7. Franklin Davenport, New Jersey.—Appointed December 5, 1798; produced creden¬ 
tials and took seat December 19, 1798; resignation of John Rutherfurd. James Schure- 
man elected to fill unexpired term ending March 3,1803; credentials dated February 14, 
1799; produced credentials and took seat December 3, 1799. 

8. Uriah Tracy, Connecticut.—Appointed February 20, 1801; produced credentials 
and took seat March 4,1801; vacancy about to result from expiration of his term, March 
3, 1801, and non-election of a successor. Under these credentials Mr. Tracy held the 
seat during the special session of the Senate, March 4 and 5, 1801. In the following 
May he was elected for term ending March 3,1807; credentials dated July 8, 1801; pro¬ 
duced credentials and took seat December 7,1801. 

9. Samuel White, Delaware.—Appointed February 28, 1801; produced credentials 
and took seat March 4, 1801; resignation of Henry Latimer. Mr. White elected January 
14, 1802, to fill unexpired term ending March 3, 1803; credentials dated January 15, 
1802; produced credentials and took seat January 21, 1802. 

10. William Hindman, Maryland.—Appointed March 4,1801; produced credentials and 
took seat March 5, 1801; expiration of his previous term March 3, 1801, and non-elec¬ 
tion of a successor. Mr. Hindman held his seat under these credentials March 5, 1801. 
Robert Wright elected November 19, 1801, for term ending March 3, 1807; produced 
credentials and took seat December 7,1801. 

11. George Logan, Pennsylvania.—Appointed July 13,1801; produced credentials and 
took seat December 7,1801; resignation of Peter Muhlenberg. Mr. Logan elected to fill 
unexpired term ending March 3, 1807; credentials dated December 16, 1801; produced 
credentials and took seat December 21, 1801. 

12. John Taylor, Virginia.—Appointed June 4, 1803; produced credentials and took 
seat October 17, 1803; death of Stephens Thompson Mason. Abraham Venable elected 
to fill unexpired term ending March 3, 1809; credentials dated December 8, 1803; pro¬ 
duced credentials and took seat December 13, 1803. 

13. JohnCondit, New Jersey.—Appointed September 1, 1803; produced credentials 
and took seat October 17, 1803; expiration of term of Aaron Ogden ending March 3 
1803. Under these credentials Mr. Condi t held the seat from October 17 till Novem- 


APPOINTMENTS BY EXECUTIVES OF STATES. 


147 


ber 10, 1803. Mr. Condit elected for term ending March 3, 1809*; credentials dated 
November 3, 1803; produced credentials and took seat November 10,1803. 

14. John Armstrong, New York.—Appointed November 10, 1803; produced creden¬ 
tials and took seat December 8, 1803; resignation of De Witt Clinton. John Smith 
elected February 4, 1804, to fill nnexpired term ending March 3, 1807; produced ere- 
dentials and took seat February 23, 1804. 

15. William B. Giles, Virginia.—Appointed August 11, 1804; produced credentials 
and took seat November 5, 1804; resignation of Abraham B. Venable. Andrew Moore 
elected December 4, 1804, to fill unexpired term ending March 3, 1809; credentials dated 
December 5, 1804; produced credentials and took seat December 17, 1804. 

16. Andrew Moore, Virginia.—Appointed August 11, 1804; produced credentials and 
took seat November 6, 1804; resignation of Wilson C. Nicholas. William B. Giles 
elected to fill unexpired term ending March 3, 1805; credentials dated December 5, 
1804; produced credentials and took seat December 17, 1804. 

17. George Jones, Georgia.—Appointed August 27, 1807; produced credentials and 
took seat October 26, 1807; death of Abraham Baldwin. William H. Crawford elected 
November 7, 1807, to fill unexpired term ending March 3, 1811; credentials dated No- 
vember 10, 1807; produced credentials and took seat December 9, 1807. 

18. Joseph Anderson, Tennessee.—Appointed February 6, 1809; credentials read Feb¬ 
ruary 21, 1809; oath administered March 4, 1809; vacancy about to result from expira 
tion of his term March 3, 1809, and non-election of a successor. Under these creden 
tials Mr. Anderson held the seat during the special session of the Senate March 4 to 
March 7, 1809. Mr. Anderson elected April 11, 1809, for term ending March 3,1815; 
credentials dated April 12, 1809; produced credentials and took seat May 22, 1809. 

19. Samuel Smith, Maryland.—Appointed March 4, 1809; produced credentials and 
took seat March 4, 1809; expiration of his term and non-election of a successor. Under 
these credentials Mr. Smith held the seat during the extra session of the Senate, March 
4-7, 1809, and during the first session of the Eleventh Congress, May 22 to June 28,1809. 
Mr. Smith elected November 16,1809, for term ending March 3,1815; produced creden¬ 
tials and took seat December 4,1809. 

20. John Condit, New Jersey.—Appointed March 21, 1809; produced credentials and 
took seat May 24,1809; resignation of Aaron Kitchell. Mr. Condit elected to fill unex¬ 
pired term ending March 3, 1811; credentials dated November 2, 1809; produced cre¬ 
dentials and took seat November 30,1809. 

21. Stanley Griswold, Ohio.—Appointed May 18,1809; produced credentials and took 
seat June 2,1809; resignation of Edward Tiffin. Alexander Campbell elected December 
11, 1809, to fill unexpired term ending March 3,1813; credentials dated December 12, 
1809; produced credentials and took seat January 12, 1810. 

22. Thornes Posey, Louisiana.—Appointed October 8, 1812; produced credentials and 
took seat December 7, 1812; resignation of John N. Destrehan. James Brown elected 
December 1, 1812, to fill unexpired term ending March 3, 1817; produced credentials 
and took seat February 5, 1813. 

23. Charles Cutts, New Hampshire.—Appointed April 2, 1813; produced credentials 
and took seat May 24, 1813; expiration of his previous term March 3, 1813, and non¬ 
election of a successor. Under these credentials Mr. Cutts held the seat from May 24- 
June 21, 1813. Jeremiah Mason elected for term ending March 3, 1819; credentials 
dated June 10, 1813; produced credentials and took seat June 21, 1813. 

24. William Bellinger Bullock, Georgia.—Appointed April 8, 1813; produced cre¬ 
dentials and took seat May 24, 1813; resignation of William H. Crawford. William 
Wyatt Bibb elected November 6,1813, to fill unexpired term ending March 3,1817; cre¬ 
dentials dated November 6,1813; produced credentials and took seat December 6, 1813. 

25. Christopher Gore, Massachusetts.—Appointed May 5, 1813; produced credentials 
and took seat May 28, 1813; resignation of James Lloyd. Mr. Gore elected May 29, 
1813, to fill unexpired term ending March 3,1815; credentials dated May 29,1813; pro¬ 
duced credentials and took seat June 4,1813. 

26. Jesse Wharton, Tennessee.—Appointed March 17,1814; produced credentials and 
took seat April 9, 1814; resignation of George W. Campbell. John Williams elected 
October 4,1815, to fill unexpired term ending March 3, 1817; credentials dated October 
27,1815; produced credentials and took seat December 4, 1815. 

27. George Walker, Kentucky.—Appointed August 30, 1814; produced credentials 
and took seat October 10, 1814; resignation of George M. Bibb. William T. Barry 
elected December 16, 1814, to fill unexpired term ending March 3, 1817; credentials** 
dated December 17, 1814; produced credentials and took seat February 2,1815. 

28. Martin D. Hardin, Kentucky.—Appointed November 13,1816; produced creden¬ 
tials and took seat December 5, 1816; resignation of William T. Barry. Mr. Hardin 
elected December 5, 1816, to fill unexpired term ending March 3,1817; credentials dated 
December 12,1816; produced credentials and took seat December 24,1816. 

29. John Williams, Tennessee.—Appointed January 20, 1817; credentials read Feb¬ 
ruary 10, 1817; took seat March 4, 1817; vacancy about to result from expiration of his 


148 


SENATE ELECTION CASES. 


term, March 3, 1817, and non-election of his successor. Under these credentials Mr 
Williams held the seat during the special session of the Senate, March 4-6, 1817. Mr. 
Williams elected October 2, 1817, for term ending March 3, 1823; credentials dated Oc¬ 
tober 4, 1817; produced credentials and took seat December 1, 1817. 

30. John Henry Eaton, Tennessee.—Appointed September 5, 1818; produced creden¬ 
tials and took seat November 16, 1818; resignation of George W. Campbell. Mr. Eaton 
elected October 9, 1819, to fill unexpired term ending March 3, 1821; credentials dated 
October 11, 1819; produced credentials and took seat December 6, 1819. 

31. David Holmes, Mississippi.—Appointed August 30,1820; produced credentials and 
took seat November 13, 1820; resignation of Walter Leake. Mr. Holmes held his seat 
under these credentials the remainder of the term ending March 3, 1821. January 17, 
1821, he was elected for the succeeding term. 

32. Samuel L. Southard, New Jersey.—Appointed January 26, 1821; produced cre¬ 
dentials and took seat February 16,1821; resignation of James J. Wilson. Under these 
credentials Mr. Southard held the seat for the remainder of the term ending March 3, 
1821. He had been elected for the succeeding term; credentials dated November 15, 
1820. 

33. Henry W. Edwards, Connecticut.—Appointed October 8, 1823; produced creden¬ 
tials and took seat December 1, 1823; death of Elijah Boardman. Mr. Edwards elected 
first Wednesday in May, 1824, to fill unexpired term ending March 3, 1827; credentials 
dated May 31, 1824; produced credentials and took seat December 6, 1824. 

34. James Lanman, Connecticut.—Appointed February8,1825; credentials read March 
4,1825; vacancy about to result from expiration of his term on March 3,1825, and non¬ 
election of a successor. Mr. Lanman was not admitted on these credentials. Calvin 
Willey was afterwards elected for term ending March 3, 1831. 

35. Powhatan Ellis, Mississippi.—Appointed September 28,1825; produced credentials 
and took seat December 12,1825; resignation of David Holmes. Thomas B. Reed elected 
January 28, 1826, to fill unexpired term ending March 3, 1827; credentials dated Jan¬ 
uary 30, 1826; produced credentials and took seat March 11, 1826. 

36. William Harper, South Carolina.—Appointed March 8, 1826; produced creden¬ 
tials and took seat March 28, 1826; death of John Gaillard. William Smith elected 
November 29, 1826, to fill unexpired term ending March 3, 1831; credentials dated 
November 30, 1826; produced credentials and took seat December 7, 1826. 

37. Israel Pickens, Alabama.—Appointed February 20, 1826; produced credentials 
and took seat April 10, 1826; death of Henry Chambers. John McKinley elected to 
fill unexpired term ending March 3, 1831; credentials dated November 27, 1826; pro¬ 
duced credentials and took seat December 21, 1826. 

38. Daniel Rodney, Delaware.—Appointed November 8, 1826; produced credentials 
and took seat December 4, 1826; death of Nicholas Van Dyke. H. M. Ridgely elected 
January 12, 1827, to fill unexpired term ending March 3, 1829; credentials read Jan¬ 
uary 19, 1827; took seat January 23, 1827. 

39. George Poindexter, Mississippi.—Appointed October 15, 1830; produced creden¬ 
tials and took seat December 6, 1830; death of Robert H. Adams. Mr. Poindexter 
elected November 18, 1830, to fill unexpired term ending March 3, 1835; credentials 
dated November 25, 1830; produced credentials and took seat December 15, 1830. 

40. David J. Baker, Illinois.—Appointed November 12, 1830; produced credentials 
and took seat December 6, 1830; death of John McLean. John M. Robinson elected to 
fill unexpired term ending March 3, 1835; credentials dated December 11, 1830; pro¬ 
duced credentials and took seat January 4, 1831. 

41. Robert Hanna, Indiana.—Appointed August 19, 1831; produced credentials and 
took seat December 5, 1831; death of James Noble. John Tipton elected December 9, 
1831, to fill unexpired term ending March 3,1833; credentials dated December 10,1831; 
produced credentials and took seat January 3, 1832. 

42. John Black, Mississippi.—Appointed November 12, 1832; produced credentials 
and took seat December 12, 1832; to fill seat of Powhatan Ellis, vacated by his accept¬ 
ance of office of judge of a United States court. Under these credentials Mr. Black 
held the seat for the remainder of the term ending March 3, 1833. November 22,1833, 
he was elected for the succeeding term. 

43. Lewis F. Linn, Missouri.—Appointed October 25, 1833; produced credentials and 
took seat December 16,1833; death of Alexander Buckner. Mr. Linn elected Novem¬ 
ber 20, 1834, to fill unexpired term ending March 3, 1837; credentials dated November 

1 20, 1834; produced credentials and took seat December 15,1834. 

44. John M. Niles, Connecticut.—Appointed December 14, 1835; produced credentials 
and took seat December 21, 1835; death of Nathan Smith. Mr. Niles elected to fill un¬ 
expired term ending March 3, 1839; credentials dated May 11, 1836; produced creden¬ 
tials and took seat May 16, 1836. 

45. Judah Dana, Maine.—Appointed December 7,1836; produced credentials and took 
seat December 21,1836; resignation of Ether Shepley. Ruel Williams elected February 


APPOINTMENTS BY EXECUTIVES OF STATES. 149 

22, 1837, to fill unexpired term ending March 3, 1839; credentials dated February 22, 
1837; produced credentials and took seat March 4, 1837. 

46. Ambrose H. Sevier, Arkansas.—Appointed January 17, 1837; credentials read 
February 27, 1837; oath administered March 8, 1837; vacancy about to result from 
expiration of his term March 4, 1837, and non-election of successor. Under these cre¬ 
dentials Mr. Sevier held the seat during the remainder of the special session, March 
8-10, 1837, during the first session of the Twenty-fifth Congress, September 4-October 
16, and from December 4-13 of the second session. November 7, 1837, he was elected 
for term ending March 3, 1843. 

47. Ephraim H. Foster, Tennessee.—Appointed September 17, 1838; produced cre¬ 
dentials and took seat December 3,1838; resignation of Felix Grundy. Mr. Foster held 
the seat under these credentials during the remainder of the term ending March 3, 1839. 
He was elected for the succeeding term but resigned. 

48. Thomas H. Williams, Mississippi.—Appointed November 12, 1838; produced cre¬ 
dentials and took seat December 13,1838; resignation of James F. Trotter. Mr. Williams 
elected January 30,1839, to fill unexpired term ending March 3,1839; credentials dated 
February 1,1839; produced credentials and took seat February 19,1839. 

49. Allred O. P. Nicholson, Tennessee.—Appointed December 25,1840; produced cre¬ 
dentials and took seat January 11, 1841; death of Felix Grundy. Ephraim H. Foster 
elected October 17,1843, to fill unexpired term ending March 3, 1845; credentials dated 
November 13, 1843; produced credentials and took seat December 4,1843. 

50. Leonard Wilcox, New Hampshire.—Appointed March 1, 1842; produced creden¬ 
tials and took seat March 7, 1842; resignation of Franklin Pierce. Mr. Wilcox elected 
to fill unexpired term ending March 3, 1843; credentials dated June 9, 1842; produced 
credentials and took seat June 13, 1842. 

51. Samuel C. Crafts, Vermont.—Appointed April 23, 1842; produced credentials and 
took seat April 30, 1842; resignation of Samuel Prentiss. Mr. Crafts elected October 
26, 1842, to fill unexpired term ending March 3, 1843; credentials dated October 26, 
1842; produced credentials and took seat December 7, 1842. 

52. William L. Dayton, New Jersey.—Appointed July 2, 1842; produced credentials 
and took seat July 6, 1842; death of Samuel L. Southard. Mr. Dayton elected Octo¬ 
ber 28, 1842, to fill unexpired term ending March 3, 1845; credentials dated November 
8, 1842; produced credentials and took seat December 7, 1842. 

53. James Semple, Illinois.—Appointed August 16, 1843; produced credentials and 
took seat December 4, 1843; death of Samuel McRoberts. Mr. Semple elected Decem¬ 
ber 11, 1844, to fill unexpired term ending March 3, 1847; credentials dated December 
19, 1844; produced credentials and took seat January 28, 1845. 

54. David R. Atchison, Missouri.—Appointed October 15, 1843; produced credentials 
and took seat December 4, 1843; death of Lewis F. Linn. Mr. Atchison elected No¬ 
vember 20, 1844, to fill unexpired term ending March 3, 1849; produced credentials and 
took seat December 9, 1844. 

55. Dixon H. Lewis, Alabama.—Appointed April 22, 1844; produced credentials and 
took seat May 7, 1844; resignation of William R. King. Mr. Lewis elected to fill unex¬ 
pired term ending March 3, 1847; credentials dated December 10, 1844; produced cre¬ 
dentials and took seat January 28, 1845. 

56. Henry A. Foster, New York.—Appointed November 30, 1844; produced creden¬ 
tials and took seat December 9, 1844; resignation of Silas Wright. John A. Dix elected 
January 18,1845, to fill unexpired term ending March 3,1849; produced credentials and 
took seat January 27, 1849. 

57. Daniel S. Dickinson, New York.—Appointed November 30, 1844; produced cre¬ 
dentials and took seat December 9, 1844; resignation of Nathaniel P. Tallmadge. Mr. 
Dickinson elected January 18, 1845, to fill unexpired term ending March 3, 1845; pro¬ 
duced credentials and took seat January 27, 1845. 

58. Joseph W. Chalmers, Mississippi.—Appointed November 3, 1845; produced cre¬ 
dentials and took seat December 1, 1845; death of Robert J. Walker. Mr. Chalmers 
elected January 10, 1846, to fill unexpired term ending March 3,1847; credentials dated 
January 16, 1846; produced credentials and took seat February 4, 1846. 

59. Benning W. Jenness, New Hampshire.—Appointed November 12,1845; produced 
credentials and took seat December 1, 1845; resignation of Levi Woodbury. Joseph 
Cilley elected to fill unexpired term ending March 3, 1847; credentials dated June 13, 
1846; produced credentials and took seat June 22, 1846. 

60. Jefferson Davis, Mississippi.—Appointed August 10,1847; produced credentials and 
took seat December 6,1847; death of Jesse Speight. Mr. Davis elected Januaryll, 1848, 
to fill unexpired term ending March 3, 1851; credentials dated January 31, 1848; pro¬ 
duced credentials and took seat February 15, 1848. 

61. Roger S. Baldwin, Connecticut.—Appointed November 11, 1847; produced cre¬ 
dentials and took seat December 7,1847; death of Jabez W. Huntington. Mr. Baldwin 
elected first Wednesday of May, 1848, to fill unexpired term ending March 3, 1851; cre¬ 
dentials dated June 1, 1848; produced credentials and took seat June 5, 1848. 


150 


SENATE ELECTION CASES. 


62. Wyman B. S. Moor, Maine.— Appointed January 5, 1848; produced credentials 
and took seat January 17, 1848; death ol John Fairfield. Hannibal hlamlin elected 
May 26, 1848, to till unexpired term ending March 3, 1851; produced credentials and 

63. Herschell V. Johnson, Georgia.—Appointed February 4, 1848; produced cre¬ 
dentials and took seat February 14, 1848; resignation of Walter T. Colquitt. Under 
these credentials Mr. Johnson held the seat for the remainder of the term ending 
March 3, 1849. William C. Dawson had been elected for the succeeding term on 
November 13, 1847. 

64. Solon Borland, Arkansas.—Appointed March 30, 1848; produced credentials 
and took seat April 24,1848; resignation of Ambrose H. Sevier. Mr. Borland elected 
November 17, 1848, to till unexpired term ending March 3, 1849; credentials dated * 
November 20, 1849; produced credentials and took seat December 11, 1848. 

65. William K. Sebastian, Arkansas.—Appointed May 12, 1848; produced creden¬ 
tials and took seat May 31, 1848; death of Chester Ashley. Mr. Sebastian elected 
November 17, 1848, to fill unexpired term ending March 3, 1853; credentials dated 
November 20,1848; produced credentials and took seat December 21, 1848. 

66. Thomas Fitzgerald, Michigan.—Appointed June 8, 1848; produced credentials 
and took seat June 20, 1848; resignation of Lewis Cass. Lewis Cass elected Jan¬ 
uary 20, 1849, to fill his own unexpired term ending March 3, 1851, produced creden¬ 
tials and took seat March 3, 1849. 

67. Thomas Metcalfe, Kentucky.—Appointed June 23, 1848; produced credentials 
and took seat July 3, 1848; resignation of John J. Crittenden. Mr. Metcalfe elected 
January 3, 1849, to fill unexpired term ending March 3, 1849; credentials dated Jan¬ 
uary 3, 1849; produced credentials and took seat January 26, 1849. 

68. William R. King, Alabama.—Appointed July 1, 1848; produced credentials and 
took seat July 13, 1848, resignation of Arthur P. Bagby. Under these credentials 
Mr. King held his seat the remainder of the term ending March 3, 1849. He was 
elected for succeeding term November 30, i849. The seat was vacant during the 
special session of the Senate in 1849. 

69. Benjamin Fitzpatrick, Alabama.—Appointed November 25, 1848; produced cre¬ 
dentials and took seat December 11, 1848; death of Dixon H. Lewis. Jeremiah 
Clemens elected to fill unexpired term ending March 3, 1853; credentials dated No¬ 
vember 30, 1849; produced credentials and took seat December 6, 1849. 

70. David Stewart, Maryland.—Appointed December 6, 1849; produced credentials 
and took seat December 8,1849; resignation of Reverdy Johnson. Thomas G. Pratt 
elected to fill unexpired term ending March 3, 1851; credentials dated January 12, 
1850; produced credentials and took seat January 14, 1850. 

71. Franklin H. Elmore, South Carolina.—Appointed April 11, 1850; credentials 
read April 16,1850; took seat May 6, 1850; death of John Caldwell Calhoun. Robert 
W. Barnwell appointed June 4, 1850, on death of Franklin H. Elmore; produced cre¬ 
dentials and took seat June 24,1850. R. Barnwell Rliett elected December 18, 1850, 
for unexpired term of J. C. Calhoun ending March 3,1853; credentials dated Decem¬ 
ber 20, 1850; produced credentials and took seat January 6, 1851. 

72. Robert W. Barnwell, South Carolina.—Appointed June 4, 1850; produced cre¬ 
dentials and took seat June 24, 1850; death of Franklin H. Elmore, who had been 
appointed by governor to fill vacancy happening by death of John Caldwell Calhoun. 
Robert Barnwell Rhett elected December 18, 1850, for remainder of term of J. C. 
Calhoun ending March 3, 1853; credentials dated December 20, 1850; produced cre¬ 
dentials and took seat January 6, 1851. 

73. Thomas Ewing, Ohio.—Appointed July 20, 1850; produced credentials and 
took seat July 27, 1850; resignation of Thomas Corwin. Under these credentials 
Mr. Ewing held the seat the remainder of the term ending March 3, 1851. Benjamin 
F. Wade was elected March 15, 1851, for the succeeding term. 

74. Robert C. Winthrop, Massachusetts.—Appointed July 27, 1850; produced cre¬ 
dentials aud took seat July 30,1850; resignation of Daniel Webster. Robert Rantoul 
elected February 1. 1851, to fill unexpired term ending March 3, 1851; credentials 
read February 7, 1851; took seat February 22, 1851. 

75. John I. McRae, Mississippi.—Appointed December 1, 1851; produced credentials 
and took seat December 19, 1851; resignation of Jefferson Davis. Stephen Adams 
elected February 19, 1852, to fill unexpired term ending March 3, 1857; produced 
credentials and took seat March 17, 1852. 

76. William F. Desaussure, South Carolina.—Appointed May 10, 1852; produced 
credentials and took seat May 24, 1852; resignation of R. Barnwell Rhett. Mr. De¬ 
saussure elected November 29, 1852, to fill unexpired term ending March 3, 1853; 
credentials dated December 9, 1852; produced credentials and took seat December 
20, 1852. 

77. Robert M. Charlton, Georgia.—Appointed May 18, 1852; produced credentials 
and took seat June 11,1852; resignation of John M. Berrien. Under these credentials 


APPOINTMENTS BY EXECUTIVES OF STATES. 151 

Mr. Charlton held the seat the remainder of the term ending March 3, 1853. Robert 
Toombs had on November 10, 1851, been elected for succeeding term. 

78. David Meriwether, Kentucky.—Appointed July 6, 1852; .produced credentials 
and took seat July 15, 1852; death of Henry Clay. Under these credentials Mr. Meri¬ 
wether held the seat till September 1, 1852. Archibald Dixon had been elected De¬ 
cember 30, 1851, to fill unexpired term ending March 3, 1855, about to result from 
resignation ot Mr. Clay, which had been made and was to take effect the first Mon¬ 
day in September, 1852. Mr. Dixon’s credentials read December 6, 1852; took seat 
December 20, 1852. 

79. Charles W. Cathcart, Indiana.—Appointed November 23, 1852; produced cre¬ 
dentials and took seat December 6, 1852; death of James Whitcomb. John Pettit- 
elected January 11, 1853, to till unexpired term ending March 3, 1855; credentials 
dated January 11, 1855; produced credentials and took seat January 18, 1853. 

80. Samuel S. Phelps, Vermont.—Appointed January 17, 1853; produced creden¬ 
tials and took seat January 17, 1853; death of William Upham. Lawrence Brainerd 
elected to till unexpired term ending March 3, 1855; credentials dated October 14, 
1854 ; produced credentials and took seat December 4, 1854. 

81. Benjamin Fitzpatrick, Alabama.—Appointed January 14, 1853; produced ere 
dentials and took seat January 20, 1853; resignation of William R. King. Mr. Fitz¬ 
gerald elected to fill unexpired term ending March 3, 1855; credentials dated Decem¬ 
ber 12, 1853; produced credentials and took seat December 19, 1853. 

82. Robert W. Johnson, Arkansas.—Appointed July 6, 1853; produced credentials 
and took seat December 5, 1853; resignation of Solon Borland. Mr. Johnson elected 
November 10, 1854, to till unexpired term ending March 3, 1855; credentials dated 
November 24, 1854; produced credentials and took seat December 18, 1854. 

83. Jared W. Williams, New Hampshire.—Appointed November 29,1853; produced 
credentials and took seat December 12, 1853; death of Charles G. Atherton. Under 
these credentials Mr. Williams held the seat until August 4,1854, when it was deter¬ 
mined that the u right of representation under appointment” had expired. John P. 
Hale elected to fill unexpired term ending March 3, 1859; credentials dated July 30, 
1855; produced credentials and took seat December 4, 1855. 

84. Julius Rockwell, Massachusetts.—Appointed June 3,1854; produced credentials 
and took seat June 15, 1854; resignation of Edward Everett. Henry Wilson elected 
to fill unexpired term ending March 3,1859; credentials dated February 1, 1855; pro¬ 
duced credentials and took seat February 10, 1855. 

85. John S. Wells, New Hampshire.—Appointed January 16,1855; produced cre¬ 
dentials and took seat January 22, 1855; death of Moses Norris. Under these cre¬ 
dentials Mr. Wells held the seat the remainder of the term ending March 3, 1855. 
James Bell elected for succeeding term; credentials dated July 30,1855. 

86. Joseph P. Comegys, Delaware.—Appointed November 19, 1856; produced cre¬ 
dentials and took seat December 4, 1856; death of John W. Clayton. Martin W. 
Bates elected January 14, 1857, to fill unexpired term ending March 3, 1859; cre¬ 
dentials dated January 14, 1857; credentials read January 19, 1857; took seat De¬ 
cember 6, 1858. 

87. Thomas L. Clingman, North Carolina.—Appointed May 6, 1858; produced cre¬ 
dentials and took seat May 7,1858; resignation of Asa Biggs. Mr. Clingman elected 
to fill unexpired term ending March 3,1861; credentials dated November 23, 1858; 
produced credentials and took seat December 6, 1858. 

88. Arthur P. Hayne, South Carolina.—Appointed May 11, 1858; produced creden¬ 
tials and took seat May 20, 1858; death of Josiah J. Evans. James Chestnut, jr., 
elected December 4, 1858, to fill unexpired term ending March 3, 1859; credentials 
dated December 7, 1858; produced credentials and took seat January 5, 1859. 

89. Matthias Ward, Texas.—Appointed September 27, 1858; produced credentials 
and took seat December 6, 1858; death of J. Pinkney Henderson. Louis T. Wigfall 
elected December 5, 1859, to fill unexpired term ending March 3, 1863; credentials 
dated December 8, 1859; produced credentials and took seat January 4, 1860. 

90. Henry P. Haun, California.—Appointed November 3, 1859; produced credentials 
and took seat December 5, 1859; death of David C. Broderick. Milton S. Latham 
elected January 11, 1860, to fill unexpired term ending March 3,1863; credentials 
dated January 14, 1860; produced credentials and took seat March 5, 1860. 

91. Orville H. Browning, Illinois.—Appointed June 26, 1861; produced credentials 
and took seat July 4, 1861; death of Stephen A. Douglas. William A. Richardson 
elected January i.2, 1863, to fill unexpired term ending March 3, 1865; credentials 
dated January 12, 1863; produced credentials and took seat January 30, 1863. 

92. Robert Wilson, Missouri.—Appointed January 17, 1862; produced credentials 
and took seat January 24, 1862; expulsion of Waldo P. Johnson. B. Gratz Brown 
elected November 13, 1863, to till unexpired term ending March 3, 1867; credentials 
dated November 14, 1863; produced credentials and took seat December 14, 1863. 

93. John B. Henderson, Missouri.—Appointed January 17, 1862; produced creden¬ 
tials and took seat January 29, 1862; expulsion of Trusten Polk. Mr. Henderson 


152 


SENATE ELECTION CASES. 


elected January 6 , 1863, to fill unexpired term ending March 3, 1863; credentials 
dated February 12, 1863 ; produced credentials and took seat 1 ebruary 18, 18b3. 

94 Beniamin Stark, Oregon.—Appointed October 29, 1861; credentials presented 
January 6 , 1862; took seat February 27, 1862; death of E. D. Baker. Benjamin F. 
Harding elected September 12, 1862, to fill unexpired term ending March 3. 1865; 
credentials dated September 26,1862; produced credentials and took seat December 
1 . 1862. 

' 95 . Joseph A. Wright, Indiana.—Appointed February 24, 1862; produced creden¬ 
tials and took seat March 3,1862; expulsion of Jesse D. Bright. David Turpie elected 
January 14, 1863, to fill unexpired term ending March 3, 1863; credentials dated 
January 14, 1863; produced credentials and took seat January 22, 1863. 

96. Richard S. Field, New Jersey.—Appointed November 21, 1862; produced cre¬ 
dentials and took seat December 1, 1862; death of John R. Thompson. James W. 
Wall elected January 14,1863, to fill unexpired term ending March 3, 1863; produced 
credentials and took seat January 21, 1863. 

97. Thomas H. Hicks, Maryland.—Appointed December 29, 1862; produced creden¬ 
tials and took seat January 14, 1863; death of James A. Pearce. Mr. Hicks elected 
to fill unexpired term ending March 3, 1867; produced credentials and took seat 
January 19, 1864. 

98. Nathan A. Farwell, Maine.—Appointed October 27, 1864; produced credentials 
and took seat December 5, 1864; resignation of William Pitt Fessenden. Mr. Far- 
well elected January 11, 1865, to fill unexpired term ending March 3, 1865; creden¬ 
tials dated January 12,1865; produced credentials and took seat February 6,1865. 

99. Luke P. Poland, Vermont.—Appointed November 21, 1865; produced creden¬ 
tials and took seat December 4, 1865; death of Jacob Collamer. Mr. Poland elected 
October 24, 1866, to fill unexpired term ending March 3, 1867; produced credentials 
and took seat December 3, 1866. 

100. George F. Edmunds, Vermont.—Appointed April 3,1866; produced credentials 
and took seat April5,1866; death of Solomon Foot. Mr. Edmunds elected October 24, 
1866, to fill unexpired term ending March 3, 1869; credentials dated October 24, 1866; 
produced credentials and took seat December 3, 1866. 

101. Edmund G. Ross, Kansas.—Appointed July 19, 1866; produced credentials and 
took seat July 25, 1866; death of James H. Lane. Mr. Ross elected January 23, 1867. 
to fill unexpired term ending March 3, 1871; credentials dated January 24,1867; pro¬ 
duced credentials and took seat February 14, 1867. 

102. George G. Fogg, New Hampshire.—Appointed August 31, 1866; produced cre¬ 
dentials and took seat December 3, 1866; resignation of Daniel Clark. Mr. Fogg held 
the seat under these credentials the remainder of the term ending March 3, 1867. 
James W. Patterson had on August 29, 1866, been elected for succeeding term. 

103. F. T. Frelinghuysen, New Jersey.—Appointed November 12, 1866; produced 
credentials and took seat December 3,1866; death of William Wright. Mr. Freling¬ 
huysen elected to fill unexpired term ending March 3, 1869; credentials dated Janu¬ 
ary 23, 1867; produced credentials and took seat January 24, 1867. 

104. James A. Bayard, Delaware.—Appointed April 5, 1867; produced credentials 
and took seat April 11, 1867; death of George Read Riddle. Mr. Bayard elected 
January 19, 1869, to fill unexpired term ending March 3, 1869; credentials dated Jan¬ 
uary 20, 1869; produced credentials and took seat January 22, 1869. 

105. William Pinkney Whyte, Maryland.—Appointed July 13, 1868; produced cre¬ 
dentials and took seat July 14, 1868; resignation of Reverdy Johnson. Under these 
credentials Mr. Whyte held the seat the remainder of the term ending March 3,1869. 
William T. Hamilton had been elected for the succeeding term; credentials dated 
February 7, 1868. 

106. Lot M. Morrill, Maine.—Appointed October 30, 1869; produced credentials 
and took seat December 6 , 1869; death of William Pitt Fessenden. Mr. Morrill 
elected January 19, 1870, to fill unexpired term ending March 3, 1871; produced 
credentials and took seat January 24, 1870. 

107. William Windom, Minnesota.—Appointed July 16,1870; produced credentials 
and took seat December 5, 1870; death of Daniel S.'Norton. O. P. Stearns elected 
January 18, 1871, to fill unexpired term ending March 3, 1871; produced credentials 
and took seat January 25, 1871. 

108. Daniel T. Jewitt, Missouri.—Appointed December 19, 1870; produced creden¬ 
tials and took seat December 22, 1870; resignation of Charles D. Drake. Francis 
P. Blair elected to fill unexpired term ending March 3, 1873; credentials dated Jan¬ 
uary 20, 1871; credentials read January 24, 1871; took seat January 25, 1871. 

109. Willis B. Machen, Kentucky.—Appointed September 27, 1872; produced cre¬ 
dentials and took seat December 2, 1872; death of Garrett Davis. Mr. Machen 
elected January 21, 1873, to fill unexpired term ending March 3, 1873; credentials 
dated February 3, 1873; produced credentials and took seat February 10, 1873. 

110. Robert Crozier, Kansas.—Appointed November 24, 1873; produced credentials 
»d took seat December 1,1873; resignation of Alexander Caldwell. James M. Harvey 


APPOINTMENTS BY EXECUTIVES OF STATES. 


153 


elected February 2, 1874, to fill unexpired term ending March 3, 1877; credentials 
dated February 7,1874, produced credentials and took seat February 12, 1874. ' 

111. William W. Eaton, Connecticut.—Appointed February 10, 1875; produced 
credentials and took seat February 13, 1875; death of William A. Buckingham. 
Under this appointment Mr. Eaton held his seat during ;he remainder of the term 
ending March 3,1875. He had been elected May 20, 1874, for the succeeding term. 

112. David M. Key, Tennessee.—Appointed August 18, 1875; produced credentials 
and took seat December 6,1875; death of Andrew Johnson. James E. Bailey elected 
Junuary 19, 1877, to fill unexpired term ending March 3, 1881; credentials dated 
January 20, 1877; credentials read January 24, 1877; took seat January 29, 1877. 

113. James E. English, Connecticut.—Appointed November 27, 1875; produced 
credentials and took seat December 7,1875; death of Orris S. Ferry. William H. 
Babnum elected May 16, 1876, to fill unexpired term ending March 3, 1879; creden¬ 
tials dated May 17, 1876; produced credentials and took seat May 22, 1876. 

114. Robert H. Marr, Louisiana.—Appointed December 16, 1875; credentials read 
December 20, 1875; resignation of William L. McMillen. Neither Mr. McMillen nor 
Mr. Marr was admitted. 

115. James G. Blaine, Maine.—Appointed July 10, 1876; credentials read July 
12, 1876; took seat December 4, 1876; resignation of Lot M. Morrill. Mr. Blaine 
elected January 16, 1877, to fill unexpired term ending March 3, 1877; credentials 
dated January 17, 1877; credentials read January 19,1877; took seat January 22, 
18 77. 

116. Samuel Price, West Virginia.—Appointed August 26, 1876; produced creden¬ 
tials and took seat December 4,1876; death of Allen T. Caperton. Frank Hereford 
elected January 26,1877, to fill unexpired term ending March 3, 1881; credentials 
dated January 29,1877; produced credentials and took seat January 31, 1877. 

117. David H. Armstrong, Missouri.—Appointed September 29, 1877; produced 
credentials and took seat October 16, 1877; death of Louis V. Bogy. James Shields 
elected January 22, 1879, to fill unexpired term ending March 3,1879; credentials 
dated January 24, 1879; produced credentials and took seat January 27, 1877. 

118. Daniel W. Voorhees, Indiana.—Appointed November 6, 1877; produced cre¬ 
dentials and took seat November 12, 1877; death of Oliver P. Morton. Mr. Voorhees 
elected to fill unexpired term ending March 3, 1879; credentials dated January 31, 
1879; produced credentials and took seat February 3, 1879. 

119. Charles H. Bell, New Hampshire.—Appointed March 13, 1879; credentials 
read March 18, 1879; took seat April 10, 1879; expiration of term of Bainbridge 
Wadleigh, ending March 3, 1879, and non election of a successor. Henry W. Blair 
elected June 17. 1879, for term ending March 3, 1885; credentials dated June 18, 
1879; produced credentials and took seat June 20, 1879. 

120. Henry P. Baldwin, Michigan.—Appointed November 17, 1879; produced cre¬ 
dentials and took seat December 3, 1879; death of Zachariah Chandler. Mr. Bald¬ 
win elected January 18, 1881, to fill unexpired term ending March 3, 1881; credentials 
dated January 20, 1881; produced credentials and took seat January 31, 1881. 

121. Luke Pryor, Alabama.—Appointed January 7, 1880; produced credentials and 
took seat January 15, 1880; death of G. S. Houston. James L. Pugh elected 
November 24, 1880, to fill unexpired term ending March 3, 1885; credentials dated 
November 29, 1880; produced credentials and took seat December 6, 1880. 

122. Joseph E. Brown, Georgia.—Appointed May 21, 1880; produced credentials 
and took seat May 26, 1880; resignation of John B. Gordon. Mr. Brown elected 
November 16, 1880, to fill unexpired term ending March 3, 1885; credentials dated 
December 2, 1880; produced credentials and took seat December 6, 1880. 

123. Thomas Courtland Manning, Louisiana.—Appointed November 16, 1880; cre¬ 
dentials read December 7, 1880; death of Henry M. Spofford, claimant of seat held 
by William Pitt Kellogg. Mr. Manning not admitted. Mr. Kellogg held the seat 
during the term. 

124. James W. McDill, Iowa.—Appointed March 8,1881; produced credentials and 
took seat March 14, 1881; resignation of Samuel J. Kirkwood. Mr. McDill elected 
January 18, 1882, to fill unexpired term ending March 3, 1883; credentials dated 
January 19, 1882; produced credentials and took seat January 24, 1882. 

125. Alonzo J. Edgerton, Minnesota.—Appointed March 12, 1881; produced cre¬ 
dentials and took seat March 17, 1881; resignation of William Windom. William 
Windom elected October 26, 1881, to fill his own unexpired term ending March 3, 
1883; credentials dated October 27,1881; produced credentials and took seat Decem¬ 
ber 5, 1881. 

126. George M. Chilcott, Colorado.—Appointed April 11,1882; produced credentials 
and took seat April 17, 1882; resignation of Henry M. Teller. Horace A. W. Tabor, 
elected January 27, 1883, to fill unexpired term ending March 3, 1883, credentials 
dated January 27, 1883; produced credentials and took seat February 2, 1883. 

127. William P. Sheffield, Rhode Island.—Appointed November 19,1884; credentials 
read December 1, 1884; took seat December 2, 1884; death of Henry B. Anthony. 


154 


SENATE ELECTION CASES. 


Jonathan Cliace elected January 20, 1885, to fill unexpired term ending March 3, 
1889; credentials dated January 21, 1885; credentials read January 24, 188o; took 

seat January 26, 1885. ' , 

128. Henry W. Blair, of New Hampshire.—Appointed March 5, 1885; presented 
credentials March 9, 1885; the oath was administered and he took his seat March 10, 
1885; expiration of his previous term and failure of legislature to elect successor. 
June 17, 1885, Mr. Blair was elected by the legislature for the unexpired term ending 
March 3, 1891; credentials dated June 18, 1885; produced credentials and took his 
seat December 7, 1885. 

129. Edward C. Walthall.—Appointed March 9, 1885; produced credentials and 
took seat March 12, 1885; resignation of L. Q. C. Lamar. Mr. Walthall elected by 
the legislature January 20, 1886, for the unexpired term ending March 4, 1889; Jan¬ 
uary 25, 1886, he produced his credentials and took his seat. * 

130. George Hearst, California—Appointed March 23, 1886; produced credentials 
and took his seat April 9, 1886; death of John F. Miller. A. P. Williams elected by 
the legislature, August 4, 1886, for the unexpired term ending March 3, 1887; pro¬ 
duced his credentials and took his seat December 6,1886. 

131. Washington C. Whitthorne, Tennessee.—Appointed April 16, 1886; produced 
his credentials and took his seat April 26, 1886; resignation of Howell E. Jackson 
January 18, 1887. Mr. Whitthorne was elected by the legislature for the unexpired 
term ending March 4, 1887; credentials dated January 26, 1887; produced his cre¬ 
dentials and took his seat February 3, 1887. 

132. Person C. Cheney, New Hampshire.—Appointed November 24, 1886; produced 
credentials and took seat December 7, 1886; death of Austin F. Pike. William E. 
Chandler elected by the legislature June 14, 1887, for the unexpired term ending 
March 3, 1889; credentials dated June 15, 1887; produced credentials and took seat 
December 5, 1887. 

133. Gilman Marston, New Hampshire.—Appointed March 4, 1889; produced cre¬ 
dentials and took seat March 5, 1889; expiration of term of William E. Chandler and 
failure of legislature to elect a successor. William E Chandler elected by the leg¬ 
islature June 18,1889, for the unexpired term ending March 3, 1895; credentials dated 
June 19, 1889; produced his credentials and took seat December 2, 1889. 

134. Charles H. Gibson, Maryland.—Appointed November 19, 1891; produced cre¬ 
dentials and took seat December 7, 1891; death of Ephraim King Wilson. Mr. 
Gibson elected by the legislature January 21, 1892, for the unexpired term ending 
March 3, 1897; credentials dated February 3, 1892; produced credentials and took 
seat February 10, 1892. 

135. Redfield Proctor, Vermont.—Appointed November 2, 1891; produced creden¬ 
tials and took seat December 7, 1891; resignation of George F. Edmunds. 

136. Horace Chilton, Texas.—Appointment made April 25, 1891, to take effect June 
10, 1891; produced credentials and took seat December 7, 1891; resignation of John 
H. Reagan. Roger Q. Mills elected by the legislature March 22, 1892, for the unex¬ 
pired term ending March 3, 1893; credentials dated March 25, 1892; produced his 
credentials and took his seat March 30, 1892. 

137. Bishop W. Perkins, Kansas.—Appointed January 1, 1892; produced creden¬ 
tials and took seat January 6, 1892; death of Preston B. Plumb. 

138. Eppa Hunton, Virginia.—Appointed May 28, 1892; produced credentials and 
took seat June 1, 1892; death of John S. Barbour. 

139. Donelson Caffery, Louisiana.—Appointed January 7, 1893; presented creden¬ 
tials and took seat January 13, 1893; death of Randall L. Gibson. 

140. Samuel Pasco, Florida.—Appointed February 27, 1893; presented credentials 
March 3, 1893; expiration of term of Samuel Pasco, March 3, 1893, the legislature of 
Florida not being in session in time to elect a successor. 

141. Lee Mantle, Montana .—Appointed March 4,1893; presented credentials March 
9, 1893; expiration of term of Wilbur S. Sanders, March 3, 1893. (Not admitted.) 

142. Asaliel C. Beckwith. Wyoming.—Appointed March 9, 1893; presented creden¬ 
tials March 15, 1893; expiration of term of Francis E. Warren, March 3, 1893. (Not 
admitted.) 

143. John B. Allen, Washington.—Appointed March 10,1893; presented credentials 
March 20,1893; expiration of term of John B. Allen, March 3,1893. (Not admitted.) 

144. George C. Perkins, California.—Appointed July 24,1893; presented credentials 
and took seat August 8, 1893; death of Leland Stanford. 

145. Newton C. Blanchard, Louisiana.—Appointed March 7, 1894; presented cre¬ 
dentials and took seat March 12, 1894; resignation of Edward D. White. 

146. Patrick Walsh, Georgia.—Appointed April 2,1894; presented credentials and 
took seat April 9, 1894 ; death of Alfred H. Colquitt. 

147. Thomas J. Jarvis, North Carolina.—Presented credentials and took seat April 
23, 1894; death of Zebulon B. Vance. 

148. John Patton, Michigan.—Presented credentials and took seat May 8, 1894; 
death of Francis B. Stockbridge. 


APPOINTMENTS BY EXECUTIVES OF STATES. 155 

149. Marcus A. Hanna, Ohio.—Presented credentials and took seat March 5, 1897; 
resignation of John Sherman. 

150. Andrew T. Wood, Kentucky.—Appointed March 5, 1897; presented creden¬ 
tials March 10, 1897; expiration ol‘ term of Joseph C. S. Blackburn, March 3, 1897. 
(Not admitted.) 

151. Henry W. Corbett, Oregon.—Appointed March 6, 1897; presented credentials 
March 15, 1897; expiration of term of John H. Mitchell, March 3, 1897. (Not 
admitted.) 

152. John A. Henderson, Florida.—Appointed March G, 1897; presented credentials 
March 16,1897; expiration of term of Wilkinson Call, March 3,1897. (Not admitted.) 

153. John C. McLaurin, South Carolina.—Presented credentials and took seat June 
1, 1897; death of Joseph Earle. 

154. Thomas B. Turley, Tennessee.—Presented credentials and took seat July 22, 
1897; death of Isham G. Harris. 

155. Hernando 1). Money, Mississippi.—Appointed October 8, 1897; presented cre¬ 
dentials and took seat December 7, 1897; death of J. Z. George. 

156. William V. Sullivan, Mississippi.—Presented credentials and took seat May 
31, 1898; death of Edward C. Walthall. 

157. Jonathan Ross, Vermont.—Appointed January 11,1899; presented credentials 
and took seat January 16, 1899; death of Justin S. Morrill. 

158. Samuel Pasco, Florida.—Presented credentials March 3, 1899; expiration of 
term of Samuel Pasco, March 3, 1899. Credentials tiled. 

159. Matthew S. Quay, Pennsylvania.—Appointed April 21,1899; presented cre¬ 
dentials December 4, 1899; expiration of term of Matthew S. Quay, March 3, 1899. 
(Not admitted.) 

160. William V. Allen, Nebraska.—Appointed December 13, 1899; presented cre¬ 
dentials and took seat December 18, 1899; death of Monroe L. Hayward. 

161. William A. Clark, Montana.—Appointed May 15, 1900; presented credentials 
May 22, 1900; resignation of William A. Clark. (Not admitted.) 

162. Martin Maginnis, Montana.—Appointed May 19, 1900; presented credentials 
May 25,1900; resignation of William A. Clark. (Not.admitted.) 

163. Jonathan P. Dolliver, Iowa.—Appointed August 23, 1900; presented creden¬ 
tials and took seat December 3, 1900; death of John H. Gear. 

164. Alfred B. Kittredge, South Dakota.—Appointed July 11, 1901; presented cre¬ 
dentials and took seat December 2, 1901; death of Dimes H. Kyle. 

165. Russell A. Alger, Michigan.—Appointed September 27,1902; presented cre¬ 
dentials and took seat December 2, 1902; death of James McMillan. 







. 



























. 



































SENATE ELECTION CASES. 


II. 

MISCELLANEOUS CASES. 


[Third Congress—First session.] 

ALBERT GALLATIN, 

Senator from Pennsylvania from December 2, 1793, to February 28, 1794. 

Albert Gallatin, a native of Geneva, came to Boston, Mass., in 1780. After changing his residence 
a few times he went, in November, 1783, to Virginia, where he had purchased lands. In October, 
1785, he took an oath of allegiance to Virginia. In December, 1785, he purchased a plantation in 
Fayette County, Pennsylvania, on which he was living in 1793. On the 28th of February, 1793, he 
was elected from that State to the Senate of the United States, which office he held until February 
28, 1794, when it was determined that he was not entitled to his seat, not having been “nine years a 
citizen of the United States.” 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Annals of Congress, 3d Cong., 1793-’95, within pages 9-61. 

It will be observed that the Senate resolved that the doors of the Senate be opened during the dis¬ 
cussion upon this contested election. A discussion of the merits of this case, and of the decision of 
the Senate regarding it, may be found in the “Life of Albert Gallatin,” by Henry Adams, pages 
119,120. 

Monday, December 2, 1793. 

The Vice-President administered the oath required by law to Mr. Gallatin, and he 
took his seat. 

The Vice-President laid before the Senate the petition of Conrad Laub and others, rel¬ 
ative to the appointment of Mr. Gallatin, a Senator of the United States; which was 
read and ordered to lie on the table. 

Wednesday, December 11, 1793. 

Ordered , That Messrs. Rutherford, Cabot, Ellsworth, Livermore, and Mitchell be a 
committee to take into consideration the petition of Conrad Laub and others, stating 
that the Hon. Albert Gallatin, at the time he was elected a Senator of the United States, 
had not been nine years a citizen of the said United States, as is required by the Consti¬ 
tution, and report thereon to the Senate. 

Tuesday, December 31, 1793. 

Mr. Rutherfurd reported, from the committee to whom was referred the petition of 
Conrad Laub and others, stating that the Hon. Albert Gallatin, at the time he was 
elected a Senator of the United States, had not been nine years a citizen of the said 
United States, as is required by the Constitution; which report was read and ordered to 
lie for consideration. 

Wednesday, January 1, 1794. 

The Senate proceeded to the consideration of the report of the committee to whom was 
referred the petition of Conrad Laub and others. 

On motion to postpone the consideration of the report until to-morrow, it was agreed 
to amend this motion by striking out the word ‘ ‘ to-morrow, ’ ’ and to insert in lieu thereof, 
‘‘Thursday, the 9th instant.” 

Thursday, January 9, 1794. 

Agreeably to the order of the day, the Senate took into consideration the report of 
the committee on the petition of Conrad Laub and others, respecting the appointment of 
Albert Gallatin to be a Senator of the United States. 

On motion, 

Ordered That the further consideration of the report be postponed until to-morrow. 

157 



158 


SENATE ELECTION CASES. 


Friday, January 10, 1794. 

The Senate resinned, the consideration of the report of the committee on the petition 
of Conrad Laub and others, respecting the appointment of Albert Gallatin, a Senator 
of the United States; which report is as follows: 

REPORT OF SELECT COMMITTEE. 

[This committee consisted of Messrs. Rutherford, Cabot, Ellsworth, Livermore, and 
Mitchell.] 

The committee, to whom was referred the petition of Conrad Laub and others, stating 
that Albert Gallatin, at the time he was elected a Senator of the United States, had not 
been nine years a citizen of the said United States, as is required by the Constitution, 
report: 

That the committee have conferred with Mr. Michael Schmyser, agent for the pe¬ 
titioners, and with Mr. Gallatin; that Mr. Schmyser has declared that the petitioners 
are ready to adduce proofs in support of the petition at such time as the Senate may 
think proper to appoint; that Mr. Gallatin states no objection to the trial’s commencing 
at an early day. The committee therefore recommend that the Senate agree to the fol¬ 
lowing resolution: 

Resolved, That-be assigned for hearing the petition of Conrad Laub and others, 

respecting Mr. Gallatin’s right to a seat in the Senate, and that Messrs. Gallatin and 
Schmyser be furnished with a copy of this resolution. 

On motion, it was agreed to postpone the report of the committee, and to take into 
consideration the following resolution : 

“ Resolved, That a committee of elections, to consist of seven, be appointed to re¬ 
port rules for receiving petitions and conducting inquiries relative to the qualifications 
of a Senator; and that the petition of Conrad Laub and others be referred to the same 
committee, to state the facts, and that they be authorized to send for persons and pa¬ 
pers.” 

On which a motion was made and seconded to postpone this motion and to take up 
the following: 

“That-be a committee to ascertain and state to the Senate the facts relative to 

the time when Albert Gallatin became a citizen of the United States, and that the said 
committee have power to send for persons and papers. ’ ’ 

Whereupon a motion was made and seconded to postpone the preceding, and to take 
into consideration the following motion: 

11 Resolved, That a committee of elections be appointed, and that the petition of 
Conrad Laub and others be referred to it, to report their opinion on the merits of the 
said petition. ’ ’ 

And, after debate, the Senate adjourned. 


Monday, January 13, 1794. 

The Senate resumed the consideration of the petition of Conrad Laub and others, re¬ 
specting the appointment of Mr. Gallatin to be a Senator of the United States. 

On motion, 

Ordered, That a committee of elections, to consist of seven, be appointed, and that 
the petition of Conrad Laub and others be referred, without prejudice as to any ques¬ 
tions which may, upon the hearing, be raised by the sitting member, as to the suffi¬ 
ciency of the parties and the matter charged in the petition, to the same committee, to 
state the facts, and that they be authorized to send for persons and papers; also, that 
Messrs. Bradley, Ellsworth, Mitchell, Rutherfurd, Brown, Livermore, and Taylor be 
this committee. 


Monday, February 10, 1794. 

Mr. Bradley reported from the committee to whom was referred the petition of Con¬ 
rad Laub and others, respecting the appointment of Mr. Gallatin to be a Senator of the 
United States; and the report w T as read. 

Ordered, That Wednesday next be assigned to take this report into consideration, and 
that in the mean time it be printed for the use of the Senate. 

On motion that the Senate adopt the following resolution: 

Resolved, That the doors ot the Senate be opened, and continue open, durin 0, the dis¬ 
cussion upon the contested election of Albert Gallatin,” 

Ordered, That this motion lie on the table until to-morrow. 




ALBERT GALLATIN. 


159 


Tuesday, February 11, 1794. 

Agreeably to the order of the day, the Senate took into consideration the motion made 
yesterday that the doors of the Senate be opened during the discussion of the contested 
election of Mr. Gallatin. Whereupon, 

Resolved , That the doors of the Senate be opened, and continue open, during the dis¬ 
cussion upon the contested election of Albert Gallatin. 

Wednesday, February 12, 1794. 

On motion that the consideration of the report of the committee on the petition of 
Conrad Laub and others respecting the appointment of Mr. Gallatin to be a Senator of 
the United States be postponed until Monday next, it was passed in the affirmative. 

Monday, February 17, 1794. 

The petition of Michael Schmyser, agent for Conrad Laub and others, petitioners 
against the election of Albert Gallatin to be a Senator of the United States, was pre¬ 
sented and read, praying to be heard by counsel. 

Ordered, That the prayer of the petition be granted. 

The consideration of the report of the committee on the petition of Conrad Laub and 
others, respecting the election of Mr. Gallatin to be a Senator of the United States, 
was resumed, and, after progress, it was ordered that the consideration thereof be post¬ 
poned until Wednesday next. 

Wednesday, February 19, 1794. 

Agreeably to the order of the day, the Senate resumed the consideration of the report 
of the committee on the petition of Conrad Laub and others, respecting the election of 
Mr. Gallatin to be a Senator of the United States. 

Ordered , That the consideration thereof be further postponed until to-morrow. 

Thuksday, February 20, 1794. 

Agreeably to the order of the day, the Senate resumed the consideration of the report 
of the committee on the petition of Conrad Laub and others, respecting the election of 
Mr. Gallatin to be a Senator of the United States. 

The report of the committee states the evidence, and concludes with an opinion that 
to controvert the allegations set forth in the petition against Mr. Gallatin it lays with 
him to prove his citizenship. 

Accordingly Mr. Gallatin presented a written statement of facts, which the President 
of the Senate read. It contained a narrative of several transactions from the time of 
Mr. Gallatin’s arrival in the Province of Maine, or Massachusetts, about thirteen years 
ago; of his having contributed by money and his own services as a volunteer in the 
cause of the Revolution; of his having taken oaths of allegiance and purchased lands 
in that State, and also in the State of Virginia. In the back parts of the last-mentioned 
State he had formed an interesting settlement, and had been extremely useful in bring¬ 
ing settlers from Europe. The dates of those transactions and times of his arrival in 
Pennsylvania and of being sent to the State convention are also recited, up to the time 
of his being chosen one of their representatives in the Senate of the United States. 

After the President had done reading the statement of facts, Mr. Gallatin addressed 
the Senate by observing that he felt himself rather in an awkward predicament, not 
knowing whether the counsel l'or the prosecutors or himself were the proper persons to 
speak the first, as this preliminary was not yet laid down by the Senate; neither had he 
provided any counsel. He should have supposed himself in the situation of defendant 
were it not that the weight of proving the affirmative in regard to citizenship had been 
laid on him, under which predicament it might perhaps be necessary for him to begin, 
and after the counsel for the petitioners had spoken that he should then be allowed to 
close the arguments. 

Mr. Livermore was of opinion that the sitting member should begin the debate, as the 
onus probandi lay with him. 

The counsel for the petitioners, Mr. Lewis, rose. He was attended by Mr. Schmyser, 
one of the members of the senate of Pennsylvania, who, we understand, manages the 
prosecution on the part of the petitioners. Mr. Lewis hoped he would be permitted to 
say a few words in the early stage of the business in regard to the manner of conducting 
it. He recapitulated sundry offices and posts of honor that had been conferred on him, 
from which he humbly presumed he had gathered much experience, and particularly in 
cases of contested elections. He would, therefore, beg leave of the honorable Senate to 
offer an observation before they should determine on the mode of conducting the trial. 
When the question for postponement, which was debated the other day, was before them 
the sitting member did then consider himself as defendant, and for an hour had fought 


160 


SENATE ELECTION CASES. 


phantoms of his own imagination; but now he has changed his ground and desires to 
have the privileges which belong to the petitioners only, namely, the right of opening 
the prosecution and afterwards concluding the arguments. 

Mr. Gallatin submitted to the decision of the Senate, and said he did not wish to con¬ 
tend for mere matters of form. 

Martin, from North Carolina, thought it immaterial who began or concluded, if 
in the end the Senate should be enabled to arrive at a just degree of information. 

Mr. Jackson, from Georgia, made some observations on the manner of conducting the 
business. He thought it would be incumbent on the counsel for the petitioners to prove 
that Mr. Gallatin was not a citizen, &c. 

Mr. King, from New York, and some other gentleman of the Senate said a few more 
words on the motion; it was agreed that the sitting member should begin. 

Mr. Gallatin accordingly rose and recapitulated the facts stated in the written paper 
which he had presented to the President, commenting on each of them as he proceeded. 
He proved that he had been an inhabitant of the United States for thirteen years, and 
was one before the peace of 1783 and before the Confederation. He quoted the laws 
previous thereto respecting aliens, and also the British statutes, and he maintained that 
they were all done away by the Revolution. He conceived himself a citizen in common 
with the other citizens of the United States from the time of his first qualifying after 
his arrival and attachment to the country. He concluded by saying he would reserve 
the remainder of his defense until after he should hear the counsel on behalf of the peti¬ 
tioners. 

Mr. Lewis commenced his speech by observing chat he appeared there on behalf of 
Conrad Laub and other respectable men who complained of the unconstitutionality of 
admitting Mr. Gallatin to a seat in the Senate. He was glad to find by the gentleman’s 
expressions that the ground of debate had been narrowed into so small a compass, and 
he would therefore take him up from the argument where he had left off speaking, that 
of his being a citizen in common of the United States from the time of his qualifying 
in Massachusetts or Virginia. But in Virginia two oaths are required, and they must 
be taken in a court, not before a magistrate, to entitle a man to citizenship. He must also 
be possessed of a certain quantity of property and be a resident for two years. It appears 
Mr. Gallatin did not remain in Virginia more than two months. [Here Mr. Lewis read 
the law of Virginia of the 20th October, 1783.] On this law Mr. Lewis argued that Mr. 
Gallatin had not gone through the necessary qualifications to entitle him to citizenship 
there; and he observed that he admired the gentleman’s candor in not insisting on it 
here. In this State he had certainly not qualified himself agreeably to the law. Under 
these circumstances Mr. Lewis, for his part, could never admit of the gentleman’s right 
to citizenship so far back as to entitle him to the suffrage of a vote for a seat in the 
Senate, &c. 

The mischievous consequences of permitting such innovations he represented in strong 
terms; and he called to the recollection of the Senate the conduct of ancient and modern 
governments on this question. One of the ancient republics made it death for an alien 
to intermeddle in their politics. The sentiments of antiquity and those of men in mod¬ 
ern days proved the justice of these conclusions. 

With regard to the arguments of the gentleman respecting his being entitled to be a 
citizen of the Union, or of any individual State of it, because he had qualified himself to 
be a citizen of one of them, Mr. Lewis said was a mere bubble, for surely the gentleman 
was not one of the mass of citizens at the accomplishment of independence. 

The doctrine of the old law, which the gentleman says was done away by the Revolu¬ 
tion, in respect to aliens may have been so with regard to the British king; it was still, 
however, virtually in force against the gentleman. But, supposing it to be done away, 
how do the constitutions of the different States stand on this head? Is it not implied 
by all of them that certain oaths, residence, and property make the requisites to form 
citizenship ? In Massachusetts a foreigner is not a citizen without he complies with those 
terms. [Here he quoted page 70 of the small volume of the laws of Massachusetts. He 
also cited the act in favor of John Jarvis and others; also page 104 of the same book and 
pages 191 and 192.] From these he maintained that no such wild idea was ever contem¬ 
plated by either the law ol Massachusetts or Virginia as to admit foreigners or persons 
from other States to citizenship immediately on their entrance within their limits. 

The situation of the sitting member with respect to the constitution and laws of 
Pennsylvania he had little doubt was similar to what he had mentioned in regard to the 
other States, although he would not assert it as a fact. [He read the forty-second sec¬ 
tion and also in page 43 of the Law of Pennsylvania , 13th of March, 1789, a proviso which 
contains some precautions requiring records to be kept by the master of the rolls of the 
persons admitted to citizenship. ] The same principle pervades all the States as well as it 
does the Constitution of the United States. The absurdity of applying it in any other 
sense was severely pictured by Mr. Lewis, and to admit the idea advanced by the sitting 


ALBERT GALLATIN. 


161 


member was as inadmissible as it was novel. In support of what he wished to impress 
on the minds ol the Senate Mr. Lewis quoted the first volume of the Journals of Congress 
in 1774 and 1775, pages 28 and 29. He rhea recurred to Blackstone, vol. 1, pages 63,64, 
and 69; also 73 and 79. 

It was not his intention to quote the parliamentary laws of England in support of any¬ 
thing, but such parts of their common law as could be got over—that common law of 
England which was imported by our ancestors and handed down to them by the people, 
not the Parliament. The people had made the common law from time to time. The 
Saxons, Normans, &c., were all concerned in making and improving it until it had 
finally reached that degree of perfection in which it was given to us by our ancestors, and 
it was founded in wisdom and justice. 

Mr. Lewis next quoted first Blackstone, 402, which was one of the British laws that had 
never been admitted in this country and which he hoped never would, viz: That wherein 
the distinction is drawn between the commoner and the peer, an oath being required of 
the commoner upon all occasions, and no more than ‘ ‘ upon my honor ’ ’ from a peer, ex¬ 
cept in giviug evidence in civil or criminal trials. 

Mr. Lewis concluded by saying that the difficulties which stood between Mr. Gallatin 
and his seat were insurmountable and could not be removed without showing a law of 
Massachusetts, Virginia, &c., repealing those laws in regard to the qualification of citi¬ 
zens which he had mentioned, but which repeal he was certain did not exist. He there¬ 
fore stated that to insist upon the gentleman’s right to a seat was both novel and absurd. 
These were his opinions, which he had given in a perfectly extempore way, not having 
been allow ed time nor expecting to meet the subject on the new ground which it had this 
day taken in the Senate. 

Mr. Gallatin said he would pledge himself to the Senate to prove that the grounds of 
his arguments and his construction of the confederation and laws of the States was 
neither novel nor absurd, except in Mr. Lewis’s construction of them, but had been ad¬ 
mitted in many instances. However, as the common law of England was now intro¬ 
duced by Mr. Lewis, which was new ground to him, and as the hour of adjournment 
was nearly approaching, he would beg leave to make his reply to-morrow. 

On motion, the further consideration of this subject was postponed until to-morrow. 

Friday, February 21, 1794. 

Agreeably to the order of the day, the Senate resumed the consideration of the report 
of the committee on the petition of Conrad Laub and others, respecting the election of 
Mr. Gallatin to be a Senator of the United States. 

Mr. Gallatin commenced his defense by laying down the principles on which he in¬ 
tended to argue. His was a very serious situation for a person to be placed in who had 
been so long in America and who had mingled with the inhabitants in the common 
cause, that he should afterwards be called before so solemn a tribunal with an intention 
to wrest from him his right of citizenship. He confessed that on this occasion his feel¬ 
ings were deeply interested, particularly as the manner of the counsel for the prosecutors 
was so personal and went not only to deny him a seat in the Senate of the United States, 
but even to contest his citizenship and denounce him as being yet an alien. 

This was a matter of consequence to many thousands as well as himself who have long 
considered themselves in possession of all the privilege of denizens and yet may be de¬ 
prived of their rights if the doctrines of the counsel for the prosecutors should obtain any 
sanction from the body who were now to judge of its merits. 

Mr. Gallatin entered into a series of observations on the various points of law, &c., 
which had been adduced by Mr. Lewis, and he particularly remarked that the common 
law of England was entirely inapplicable to the subject under consideration. He read 
the laws of Virginia respecting naturalization, &c., from which he insisted that he had 
long since become a citizen of the United States. He also quoted first Blackstone, page 
374, and Viner’s Abridgment, Vol. II, page 266, respecting the different acceptations of den¬ 
izen and citizen, and he went back so far as the British statutes in 1740 to show the intention 
of the old government was to naturalize all persons who would go and reside in the Col¬ 
onies. He next mentioned the act of Pennsylvania of 31st of August, 1778, and com¬ 
mented on the principles generally entertained by most writers on the subjects of alle¬ 
giance and citizenship—Blackstone, 266, &c. 

An alien is a man born out of the allegiance of the king. But allegiance in England 
is not an allegiance to the country or to society as it is understood in this country. 

In order to explain the principle of reciprocity, he observed that when the two crowns 
of England and Scotland were united under James the inhabitants of Scotland became 
naturalized in England as if they had been natural-born subjects of that country. The 
allegiance in Britain was personal to the king, and it has there this remarkable quality 
that by the British laws allegiance can never be shaken off. 

This country, before the Revolution, owed allegiance to the king, but that was de- 

S. Doc. 11-11 



162 


SENATE ELECTION CASES. 


stroyed by the Declaration of Independence, and then the inhabitants of the States 
became mutually citizens of every State reciprocally; and they continued so until such 
time as the States made laws of their own afterwards respecting naturalization. 

As soon as separate governments existed allegiance was due to each, and here the al¬ 
legiance was a reality, it was to the Government and to society, whereas in Britain it is 
merely fictitious, being only to one man. 

Every man who took an active part in the American Revolution was a citizen accord¬ 
ing to the great laws of reason and of nature, and when afterwards positive laws were 
made they were retrospective in regard to persons under this predicament; nor did those 
posterior laws invalidate the rights which they enjoy under the Confederation. 

Mr. Gallatin here mentioned his having been an inhabitant of Massachusetts before 
October, 1780, and he also observed that the law passed in that State was decisive against 
the common law of England. 

In quoting the laws of Massachusetts, which were passed in 1785 and afterwards, for 
naturalizing John Gardner and James Martin, he remarked that they clearly implied 
that even a natural-born subject who had not acted in the Revolution and an absentee 
was not entitled to citizenship. He likewise took notice of the case of Mr. William 
Smith, of South Carolina, against whose election as a Representative in Congress a peti¬ 
tion was presented by Dr. Ramsey, although the decision of South Carolina on that sub¬ 
ject was exactly the reverse of Massachusetts. 

In speaking of the difficulties that occurred in explaining the terms citizen and alien 
he ran over a number of cases and asked whether if a person had arrived in the United 
States during the war, from Nova Scotia or elsewhere, and had taken an active part 
against the enemy, would he not be better entitled to the right of a citizen than even 
those who afterwards subscribed to the acts? The counsel for the prosecutors had ad¬ 
mitted that a person who had been one of the mass of the people at the Declaration of 
Independence was a citizen. On the same principle, until a law passes to disprove that 
a man who was active in the Revolution previous to the treaty of peace was a citizen he 
must be one 4pso facto. 

Mr. Gallatin next read a quotation from the first volume of Woodison, page 382, an 
English writer who acknowledged that all persons were aliens at the recognition of inde¬ 
pendence, and that is a more liberal construction than the counsel for the petitioners 
would admit of, for by his construction our sailors, &c., ought to be naturalized, lest they 
be alarmed by the British. 

The new Constitution of the United States requires certain qualifications for members 
of Congress, &c., but it does not deprive persons of their rights who were actually citi¬ 
zens before this Constitution was ratified that made the States the United States. 
They were united by consent before, and consequently he was one of the people before 
the United States existed. 

He went on to read from the constitution of Massachusetts and several other States 
sundry clauses in support of his reasoning, and recapitulated the several heads of Mr. 
Lewis’s arguments, to each of which he replied. 

Mr. Gallatin said that Mr. Lewis was unfortunate in producing the law of Pennsyl¬ 
vania, for by proving too much he had proved nothing, for the forty-second section of the 
constitution is retrospective and by acknowledging the Articles of Confederation to be the 
supreme law of the land persons who were reciprocally citizens before are still left in full 
possession of the right. 

So far from any dangerous consequences arising on my construction of citizenship, 
said he, I think it must be evident that there is more danger and absurdity in the 
counsel’s own constructions. For in remarking on the policy of nations we find even 
slaves have been enfranchised by the great republics iu times of common danger. The 
policy of America should be to make citizenship as easy as possible for the purpose of en¬ 
couraging population; even during the British dominion that was a principle laid down, 
and afterwards it was attempted to be varied; it is made one of the principal subjects of 
complaint in the Declaration of Independence, where it is expressly said that the king 
endeavored to prevent the population of these States by having laws made to obstruct 
the naturalization of foreigners. 

If there was any dangerous consequences to be apprehended from the former regula¬ 
tions on this subject they are all remedied by the new Constitution. 

Therefore no ill consequence or absurdity can follow. The author of the Federalist 
supports this principle in Yol. II, page 54,'for he says that it is a construction scarcely 
avoidable that citizens of each of the States are mutually so in all of them. 

The first words in the Constitution, “We, the people,” furnished another argument 
in support of Mr. Gallatin’s principles, which he turned to great advantage, still draw¬ 
ing an inference to show that Mr. Lewis’s construction of the subject was most liable to 
difficulties and to mischievous consequences. 

He concluded by observing that if there was any disfranchising clauses in the Consti- 


ALBERT GALLATIN. 


163 


tution of the United States tending to deprive citizens of antecedent rights, all such 
clauses must be construed favorably, and were evidently on his side. With regard to a 
sentence that had been added by the advice of counsel to the affidavit of Pelatiah Webster, 
he made some remarks which tended to establish his own personal character, which he 
trusted would be found, when traced back to his nativity, to stand the test; and that his 
right to a seat in the Senate would also stand upon an equally just foundation. 

Mr. Lewis denied ever having seen the affidavit of Mr. Webster until it was shown him 
at the time the examination before the committee was going forward. 

Mr. Gallatin recriminated that the clause of which he took notice was not in the affi¬ 
davit when Mr. Webster brought it to the committee, and that he had permitted it to be 
added with great reluctance. It was only the recital of a few words which passed be¬ 
tween Mr. Gallatin and Mr. Webster in jest some years since, wherein Mr. Gallatin had 
ironically said his name was Sidney, probably alluding to some essays that had appeared 
in the newspapers under that signature which have been generally attributed to the pen 
of another gentleman in this State. 

Mr. Jackson, in order to bring the merits of the subject directly before the Senate, 
said he would move a resolution that would have that effect; but upon Mr. Lewis’s ob¬ 
serving that lie had not yet closed his arguments, and at the instance of Mr. Butler, from 
South Carolina, who said he would second Mr. Jackson’s motion hereafter, it was with¬ 
drawn for the present. 

Ordered , That the further consideration thereof be postponed until to-morrow. 

Saturday, February 22,1794. 

The Senate resumed the consideration of the report of the committee on the petition 
of Conrad Laub and others, respecting the election of Mr. Gallatin to be a Senator of 
the United States. 

The greater part of the day was taken up by Mr. Lewis’s pleadings, wherein he en¬ 
tered into a very extensive field of reasoning, and quoted a great number of authorities 
in support of the principles on which he had set out last Thursday, and to prove that 
in the true sense of the Constitution of the United States, as well as of that of the State 
of Pennsylvania, Mr. Gallatin was not duly qualified for the office of a Senator, and 
therefore he trusted that the honorable Senate, upon mature reflection, would vacate his 
seat. 

Mr. Gallatin closed his defense in a short speech, wherein he quoted Yattel, page 167, 
and explained the forty-second section of the constitution of Pennsylvania, the liberal con¬ 
struction of which, he said, was in his favor, and the construction contended for by the 
counsel absurd. He finished by reading a passage from Lord Bacon’s works to show 
that where there is any doubt in the laws it should operate in favor of the defendant, 
and he accordingly made no doubt but that the Senate would validate his election. 

Ordered , That the further consideration of the subject be postponed until Monday next. 

A motion was made as follows: 

“ Resolved, That Albert Gallatin, returned to this House as a member for the State of 
Pennsylvania, is duly qualified for, and elected to, a seat in the Senate of the United 
States. ’ ’ 

Ordered, That the consideration of this motion be postponed until Monday next, and 
that a number of copies of the fourth article of the First Confederation of United States 
be printed for the use of the Senate. 

Monday, February 24, 1794. 

The Senate resumed the consideration of the motion made the 22d instant, on the re¬ 
port of the committee on the petition of Conrad Laub and others, respecting the election 
of Mr. Gallatin to be a Senator of the United States ; and, 

After progress, 

Ordered, That the further consideration thereof be postponed until to-morrow. 

Tuesday, February 25,1794. 

The Senate resumed the consideration of the motion made the 22d instant, on the 
report of the committee on the petition of Conrad Laub and others, respecting the elec¬ 
tion of Mr. Gallatin to be a Senator of the United States; and, 

After progress, 

Ordered, That the further consideration thereof be postponed until to-morrow. 

Wednesday, February 26, 1794. 

The Senate resumed the consideration of the motion made the 22d instant, on the 
report of the committee on the petition of Conrad Laub and others, respecting the elec¬ 
tion of Mr. Gallatin to be a Senator of the United States; and, 

After progress, 

Ordered, That the further consideration thereof be postponed until to-morrow. 


164 


SENATE ELECTION CASES. 


Thursday, February 27,1794. 

The Senate resumed the consideration of the motion, made the 22d instant, on the 
report of the committee on the petition of Conrad Laub and others, respecting the elec¬ 
tion of Mr. Gallatin to be a Senator of the United States; and, 

After progress, 

Ordered , That the further consideration thereof be postponed until to-morrow. 

Friday, February 28, 1794. 

The Senate resumed the consideration of the 22d instant, on the report of the com¬ 
mittee on the petition of Conrad Laub and others, respecting the election of Mr. Gallatin 
to be a Senator of the United States, and, 

On the question to agree to the motion, as follows: 

“ Resolved, That Albert Gallatin, returned to this House as a member for the State of 
Pennsylvania, is duly qualified for, and elected to, a seat in the Senate of the United 
States,” 

It passed in the negative—yeas 12, nays 14; as follows: 

Yeas —Messrs. Bradley, Brown, Burr, Butler, Edwards, Gunn, Jackson, Langdon, 
Martin, Monroe, Robinson, and Taylor. 

Nays —Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Hawkins, Izard, 
King, Livermore, Mitchell, Morris, Potts, Strong, and Vining. 

On motion that it be 

Resolved , That the election of Albert Gallatin to be a Senator of the United States 
was void, he not having been a citizen of the United States the term of years required 
as a qualification to be a Senator of the United States, 

A motion was made to divide the question at the word “ void; ” and 

On motion to agree to the first paragraph of the motion so divided, it passed in the 
affirmative—yeas 14, nays 12; as follows: 

Yeas —Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Hawkins, Izard, 
King, Livermore, Mitchell, Morris, Potts, Strong, and Vining. 

Nays —Messrs. Bradley, Brown, Burr, Butler, Edwards, Gunn, Jackson, Langdon, 
Martin, Monroe, Robinson, and Taylor. 

On motion to adopt the resolution, as follows: 

“ Resolved, That the election of Albert Gallatin to be a Senator of the United States 
was void, he not having been a citizen of the United States the term of years required as 
a qualification to be a Senator of the United States, ’ ’ 

It passed in the affirmative—yeas 14, nays 12; as follows: 

Yeas —Messrs. Bradford, Cabot, Ellsworth, Foster, Frelinghuysen, Hawkins, Izard, 
King, Livermore, Mitchell, Morris, Potts, Strong, and Vining. 

Nays —Messrs. Bradley, Brown, Burr, Butler, Edwards, Gunn, Jackson, Langdon, 
Martin, Monroe, Robinson, and Taylor. 

Resolved , That an attested copy of the resolution of the Senate, declaring the election 
of Albert Gallatin to be void, be transmitted by the President of the Senate to the ex¬ 
ecutive of the Commonwealth of Pennsylvania. 

REPORT OF COMMITTEE ON ELECTIONS. 

[This committee consisted of Messrs. Bradley, Ellsworth, Mitchell, Rutherford, Brown, 
Livermore, and Taylor.] 

The report of the committee on the petition of Conrad Laub and others, above referred 
to, and made on the 10th instant, is as follows: 

The Committee of Elections, to whom was referred the petition of Conrad Laub and 
others, against the election of the Hon. Albert Gallatin as a Senator of the United 
States for the State of Pennsylvania, report: 

That they have had the same under consideration, and, having given due notice, as 
•well the petitioners, by their agent, Michael Schmyser, as the said Mr. Gallatin ap¬ 
peared before them, and, on the part of the petitioners, the following evidence was pro¬ 
duced, to wit: 

Robert Morris, esq., being duly sworn, deposeth: “That during the war two of his 
sons went to Geneva for their education, and that at that place they became acquainted 
with some of the friends of Mr. Albert Gallatin, who had gone for America, and they 
being solicitous to hear of his safety, desired Mr. Morris's sons to write to their father to 
make inquiry and give the information he should obtain. That frequently afterwards he 
received letters for Mr. Gallatin from Europe, which he always supposed to come from 
the friends of Mr. Gallatin in Geneva. He supplied Mr. Gallatin with money for a bill upon 
London, and there supposed the funds to pay the same were remitted from Geneva. Mr. 

Morris paid Mr. Gallatin about one thousand guineas, by order of Messrs._ 

& Co., bankers in Paris, believing always that they were reimbursed from Geneva. Mr. 




ALBERT GALLATIN. 


165 


Morris does not recollect dates, not having lor a long while seen any of the letters that 
passed on the subject; he does not know the place of Mr. Gallatin’s nativity, but from 
the general course of the circumstances which came under his observation he always did 
suppose he was born in Geneva. 

“Sworn to and subscribed, January 22, 1794.” 

Nathaniel Cabot Higginson, esq., being duly sworn, deposeth: ‘ ‘ That he does not know 
directly anything of Mr. Gallatin’s being a foreigner or native; that he recollects know¬ 
ing him by reputation and sight at Boston, in one of the years 1781, 1782, or 1783, and 
that he was generally reputed to be a foreigner. This deponent believes that Mr. Galla¬ 
tin then taught the French language, and did not speak the English with facility; and 
further recollects that Mr. Gallatin was resident there or thereabouts a considerable 
time. This deponent further says that he never had any conversation with Mr. Galla¬ 
tin, but founds his belief with respect to Mr. Gallatin’s not speaking the English with 
facility on the information received from others. 

“Sworn to and subscribed, January 22, 1794.” 

Mr. John Breakbill, being duly sworn, testifies : “ That last winter, being a member 
of the legislature of Pennsylvania, previous to the election of Senator for the State of 
Pennsylvania, I heard Mr. Gallatin say his citizenship would not admit his being a 
Senator; what were his reasons for making the declaration I cannot say; I took it he 
did not wish to be elected. This declaration by Mr. Gallatin was made at a meeting of 
a number of members of the Pennsylvania legislature, held for the purpose of agreeing 
who should be set up as a candidate. The deponent further says he does not recollect 
Mr. Gallatin’s assigning any other reason for his backwardness to serve as a Senator than 
the want of citizenship. 

“ Sworn to and subscribed, January 22,1794.” 

Henry Kammerer, esq., being duly sworn, testifies: “That last winter, being a mem¬ 
ber of the legislature of Pennsylvania, and previous to the election of Senator for the 
said State, at a meeting of a number of the members of the State legislature to agree 
upon a candidate to fill said office, I heard Mr. Gallatin say when his name was proposed, 
‘As for my name, it is out of the question; I have not been a citizen long enough to en¬ 
title me to serve in that station. ’ That at a second meeting for the same purpose Mr. 
Gallatin was again proposed as a proper person for a candidate, and then the deponent 
understood (not from Mr. Gallatin, but from some of the members of assembly then 
present) that the doubt about his citizenship was then put to rights; and then it was 
almost unanimously agreed to put up Mr. Gallatin’s name. That on the morning suc¬ 
ceeding Mr. Gallatin’s election the deponent heard it observed that notwithstanding Mr. 
Gallatin’s election he could not take his seat, in consequence of his declaration that he 
had not been long enough a citizen. That he the same day mentioned this to Mr. Galla¬ 
tin, who said that he had made this declaration under a mistaken idea that it was neces¬ 
sary for him to have been nine years a citizen of Pennsylvania, but that upon examining 
the Constitution he had found that to have been nine years a citizen of the United States 
was sufficient, and that he had been above nine years a citizen of the United States, or 
words to that effect. 

“Swornto and subscribed, January 22,1794.” 

Pelatiah Webster, being duly qualified, testifies: “That eleven years ago last summer 
I let my house in Philadelphia to Mary Linn, who proposed to take lodgers; I reserved 
apartments for myself and boarded with her. Soon after Mr. Savery and Mr. Gallatin 
took lodgings of her and continued a number of months there. Mr. Savery spoke no 
English; Mr. Gallatin spoke good English and served as interpreter for him. They 
appeared to be well-bred gentlemen, and their conduct was agreeable and conciliating, 
and they soon gained the esteem and respect of the family. I do not know that they 
ever declared their country, but we all supposed they were French, and of course the 
people, customs, and country of France often made the topic of fireside chat. In one of 
these transient conversations Mr. Gallatin took occasion to say that his knowledge of 
French affairs was not very perfect, for he was not a native of France, nor had ever re¬ 
sided long in that country, but was from Geneva. No one interesting circumstance made 
any further inquiry necessary, nor do I recollect that he made any more explication of 
the subject. 

“N. B. Mr. Gallatin once said that his original name was not Gallatin, but I think he 
said it was Sidney, but this conversation was in drollery, and not in earnest, as I con¬ 
ceived at the time of speaking from the manner and air of his speaking thereon. 

“Swornto and subscribed, January 28, 1794.” 

Mr. John Smilie, member of the House of Representatives of the United States, being 
sworn, saith: “That at a meeting of sundry members of the legislature of Pennsylvania, 
previous to Mr. Gallatin’s election as a Senator of the United States, that gentleman was 
mentioned as a proper person to fill the said office; at which time Mr. Gallatin started 


166 


SENATE ELECTION CASES. 


some doubt respecting his being qualified, but in what words the deponent does not 
recollect. 

“That the deponent did not understand upon what the doubt was founded, though he 
thinks from something said by Mr. Gallatin that it related to Mr. Gallatin’s citizenship, 
for, as the deponent conceived, the conversation proceeded from that kind of modesty 
which gentlemen usually feel upon having their names proposed upon such occasions, he 
did not pay much attention to it, and that his reason for forming this opinion was his 
having frequently observed gentlemen to make excuses in similar situations, and from his 
knowledge of Mr. Gallatin’s modesty of disposition. When being asked whether he ever 
heard Mr. Gallatin say that he had not been a citizen of the United States nine years 
previous to his election, the deponent replies he never did. Upon being asked by Mr. 
Lewis, counsel for the petitioners, what he had ever heard Mr. Gallatin say touching his 
citizenship, the deponent replies that a considerable time subsequent to Mr. Gallatin’s 
election Mr. Gallatin, in conversations with the deponent, expressed an opinion that he 
was qualified with respect to citizenship. What else did you ever hear Mr. Gallatin say 
with respect to his citizenship? The deponent answers that he recollects having heard 
him say something with respect to the laws of Massachusetts not requiring an oath of alle¬ 
giance at the time of his giving his opinion as aforesaid. Did you ever hear Mr. Gallatin 
say he was born in Europe? The deponent replies that he does not recollect Mr. Galla¬ 
tin’s saying that he was born in Europe, but that he has heard Mr. Gallatin speak of 
himself as a Genevan, mention his family in Geneva, and in conversations with him hath 
always understood him to be of Geneva. Did you ever hear Mr. Gallatin mention the 
time of his coming into America? He replies that he thinks Mr. Gallatin, about a year 
past, mentions that he had been then thirteen years in this country, and that he was 
nineteen years old when he came. Did you ever hear Mr. Gallatin say when or where he 
took the oath'of allegiance ? He replies he heard Mr. Gallatin say that he took the oath 
of allegiance in Virginia, but as to the time the deponent cannot be precise, but he thinks, 
if he can recollect, that Mr. Gallatin did mention to him, though he cannot be certain; 
but it was not nine years before he was elected. That the deponent thinks Mr. Gallatin’s 
doubts respecting his citizenship were founded on this ground, the witness referring in 
this part of his testimony to the meeting before mentioned, when these doubts were ex¬ 
pressed; but he cannot specify the time of Mr. Gallatin’s having mentioned to him the 
circumstance of his having taken the oath of allegiance. 

“Sworn to and subscribed, January 28, 1794.” 

Mr. Thomas Stokely, being sworn, deposeth and saith: “That some few days before a 
Senator was chosen for the State of Pennsylvania a meeting was had to fix on a proper 
person to represent the State in that office; sundry persons were started as candidates, 
among whom was Mr. Gallatin, who, upon his being named, observed that there were 
many other persons more proper to fill that office; and also observed that there might be 
doubts as to his citizenship, though the deponent, from the length of time, and not ex¬ 
pecting to have been called upon, retains too slight an impression of what then passed 
to be able to recollect the words with precision. That at a subsequent meeting for the 
same purpose Mr. Gallatin was finally agreed to be nominated, and the deponent heard 
no objection stated thereto, either by Mr. Gallatin (who was present) or any other person. 

“Sworn to and subscribed, February 1, 1794.” 

The before-recited evidence being introduced and closed on the part of the petition¬ 
ers, Mr. Gallatin was asked whether he had any testimony to produce on his part, to 
which he gave the following answer in writing, to wit: 

“The committee to whom the petition of Conrad Laub, &c., was referred, having in¬ 
formed me that the petitioners had closed their evidence, and asked me ‘ whether I had 
any testimony to produce on my side, ’ I answer that it appears to me that there is not 
sufficient matter charged in the petition and proved by the testimony to vacate my seat; 
that by the resolution appointing the committee the petition is referred to them to state 
the facts, ‘ without prej ad ice as to any questions which may, upon the hearing, be 
raised by the sitting member as to the sufficiency of the parties and the matter charged 
in the petition; ’ that upon the hearing, and in the present stage of the same, the ques¬ 
tion as to the sufficiency of matter, as above stated, is raised by me; that I conceive from 
the evident construction of the resolution I have a right to have that question decided 
by the Senate; that until the same shall have been decided I do not wish to be at the 
trouble and expense of collecting evidence at a great distance; and therefore that at pres¬ 
ent I do not mean to produce any testimony, reserving, however, to myself the right 
which I conceive I have to produce any testimony in my favor after the said question 
shall have been decided by the Senate, in case it is decided against me. 

“ALBERT GALLATIN.” 

Which being duly read and considered, the committee came to the following resolu¬ 
tion, to wit: 

“ Whereas the evidence on the part of the petitioners having been closed, and it ap¬ 
pearing that Mr. Gallatin was an alien in the year 1780, and his answer in writing as- 


ALBERT GALLATIN. 


107 


signing reasons why he should not adduce evidence on his part in the present stage of 
the inquiry not being, in the opinion of the committee, sufficient, 

“Resolved, That in the opinion of the committee it is now incumbent on Mr. Gallatin 
to show that he has become a citizen of the United States, and when.” 

Which resolution being read to Mr. Gallatin, he informed the committee he should 
rely on the answer he had before given. 

All which is respectfully submitted to the honorable Senate by the committee. 

And subjoined is the statement of facts exhibited by Mr. Gallatin and agreed to be¬ 
tween him and the counsel for the petitioners, as mentioned the 20th instant: 

“Albert Gallatin was born at Geneva on the 29th day of January, 1761. He left that 
place for the United States in April or May, 1780; arrived in Boston, Mass., on the 14th 
or 15th of July of the same year, and has ever since resided within the United States. 
In October, 1780, he removed from Boston toMachias, in the Province of Maine, in which 
place and its neighborhood he resided one year, and commenced a settlement on a tract 
of vacant land. During that time he furnished out of his own funds supplies amounting 
in value to more than sixty pounds Massachusetts currency to Col. John Allen, who was 
the commanding officer stationed there, and also superintendent of Indian affairs for 
the Eastern department, for the use of the American troops, and on several occasions 
acted as a volunteer under the same officer’s command. For the said supplies he re¬ 
ceived one year after a warrant on the treasury of the State of Massachusetts, which he 
sold at a considerable depreciation. In October, 1781, he returned to Boston, and in the 
spring of 1782 was, by a vote of the corporation of the University of Cambridge, other¬ 
wise called Harvard College, chosen instructor of the French language of the said uni¬ 
versity. By the same vote he was allowed a room in the college, the privilege of the 
commons at the tutor’s table, the use of the library, and also the right of having his pay, 
which depended on the voluntary subscription and attendance of the students, collected 
by the steward of the institution, together with the other charges against the students 
for board and education. Those terms he accepted and remained in that station for the 
term of one year. In July, 1783, he removed to Pennsylvania, and in November of the 
same year proceeded to Virginia, in which State he had purchased more than one thou¬ 
sand acres of land, and amounting to more than one hundred pounds Virginia currency 
in value, some time between July and November, 1783. Between this last-mentioned 
period and the month of October, 1785, he purchased other lands in the said State to a 
very large amount, and in the said last-mentioned month he took an oath of allegiance to 
the said State. In December, 1785, he purchased the plantation in Fayette County, in 
Pennsylvania, on which he has lived ever since. In October, 1789, he was elected member 
of the convention to amend the constitution of Pennsylvania, and in October, 1790, 1791, 
and 1792, he was elected member of the legislature of the same State. On the 28th of 
February, 1793, he was chosen Senator to represent the said State in the Senate of the 
United States, and took his seat in December following.” 


168 


SENATE ELECTION CASES. 


[Fourth Congress—First session.] 

HUMPHREY MARSHALL, 

Senator from Kentucky from March 4, 1795, to March 4, 1801. 

In February, 1796, the Vice-President laid before the Senate a letter from the governor of Ken¬ 
tucky and a memorial from the Representatives of said State, which memorial stated that in Feb¬ 
ruary, 1795, a pamphlet was published by George Muter and Benjamin Sebastian (two judges of the 
court of appeals), in which they said that Humphrey Marshall had had a suit in chancery in said 
court of appeals, in which, it appearing manifest from the records and documents that he had 
committed a gross fraud, the court had given a decree against him; and that in the course of the 
investigation he had been publicly charged with perjury. The memorial further stated that the said 
representatives did not mean to give an opinion on the justice of the said charge, but requested 
that an investigation relative thereto might take place. Mr. Marshall was also solicitous that an 
investigation of the subject should take place in the Senate. It was determined that the memorial 
could not be sustained; also that as the Constitution does not give jurisdiction to the Senate the 
consent of the party cannot give it, and that therefore the said memorial ought to be dismissed. 

Tne history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Annals of Congress, 4th Cong., 1st sess., 1795-’96, within pages 47-59. 

Friday, February 26, 1796. 

The Vice-President laid before the Senate a letter from the governor of the State of 
Kentucky, with divers papers accompanying the same. 

The letter and papers therein referred to were read, and ordered to lie on the table. 

Monday, February 29, 1796. 

On motion by Mr. Marshall, 

‘ ‘ That the letter from the governor of the State of Kentucky, with divers papers ac- 
ompanying the same, communicated to the Senate on the 26th instant, be referred to a 
'■ommittee. ” 

It was agreed to postpone the consideration of the motion until to-morrow. 

Wednesday, March 2, 1796. 

The Senate resumed the consideration of the motion made on the 29th of February 
respecting the letter and papers from the governor of the State of Kentucky; and 

Ordered , That they be referred to Messrs. Livermore, Ross, King, Rutherfurd, and 
Strong to consider and report thereon to the Senate. 


Friday, March 11, 1796. 

Mr. Livermore reported from the committee to whom was referred the letter of the 
governor and the memorial of the representatives of the State of Kentucky, with the 
papers accompanying them; and the report was read, and ordered to lie on the table. 

Tuesday, March 15, 1796. 

The Senate resumed the consideration of the report of the committee to whom was 
referred the letter of the governor and the memorial of the representatives of the 
State of Kentucky, with the papers accompanying them; and, 

After debate, the Senate adjourned. 

Wednesday, March 16, 1796. 

Ordered , That the consideration of the report of the committee to whom was referred 
the letter of the governor and the memorial of the representatives of the State of Ken¬ 
tucky, with the papers accompanying them, be further postponed. 

Thursday, 3farch 17, 1796. 

The Senate resumed the consideration of the report of the committee to whom was re¬ 
ferred the letter from the governor and the memorial of the Representatives of the State 
of Kentucky, with the papers accompanying them, which is as follows: 

REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Livermore, Ross, King, Rutherford, and Strong.] 

That the representatives of the freemen of Kentucky state in their memorial that 
in February, 1795, a pamphlet was published by George Muter and Benjamin Sebastian 
(who were two judges of the court of appeals), in which they say that Humphrey Mar¬ 
shall had a suit in chancery in the said court of appeals, in which it appearing manifest 


HUMPHREY MARSHALL. 


169 


from tlie oatli of the complainant, from disinterested testimony, from records, from doc¬ 
uments furnished by himself, and from the contradictions contained in his own answer, 
that he had committed a gross fraud, the court gave a decree against him; and that in 
the course ot the investigation he was publicly charged with perjury. That Mr. Mar¬ 
shall, in a publication in the Kentucky Gazette, called for a specification of the charge; 
to which the said George Muter and Benjamin Sebastian, in a like publication, replied 
that he was guilty of perjury in his answer to the bill in chancery exhibited against 
him by James Wilkinson, and that they would plead justification to any suit brought 
against them therefor. That no such suits, as the said representatives could learn, had 
been brought. The said representatives further say that they do not mean to give an 
opinion on the justice of the said charge, but request that an investigation may imme¬ 
diately take place relative thereto. 

Your committee observe that the said suit was tried eighteen months before Mr. 
Marshall was chosen a member of the Senate, and that previous to his election mutual 
accusations had taken place between him and the judges of the said court relating to 
the same suit. 

The representatives of Kentucky have not furnished any copy of Mr. Marshall’s an¬ 
swer on oath, nor have they stated. any part of the testimony, or produced any of the 
said records or documents, or the copy of any paper in the cause, nor have they intimated 
a design to bring forward those or any other proofs. 

Your committee are informed by the other Senator and two Representatives in Con¬ 
gress from Kentucky that they have not been requested by the legislature of that State 
to prosecute this inquiry, and that they are not possessed of any evidence in the case, 
and that they believe no person is authorized to appear in behalf of the legislature. 

Mr. Marshall is solicitous that a full investigation of the subject should take place 
in the Senate, and urges the principle that consent takes away error, as applying on this 
occasion, to give the Senate jurisdiction; but, as no person appears to prosecute, and 
there is no evidence adduced to the Senate, nor even a specific charge, the committee 
think any further inquiry by the Senate would be improper. If there were no objec¬ 
tions of this sort, the committee would still be of opinion that the memorial could not 
be sustained. They think that in a case of this kind no person can be held to an¬ 
swer for an infamous crime unless on a presentment or indictment of a grand jury, and 
that in all such prosecutions the accused ought to be tried by an impartial jury of the 
State and district wherein the crime shall have been committed. If, in the present case, 
the party has been guilty in the manner suggested, no reason has been alleged by the 
memorialists why he has not long since been tried in the State and district where he 
committed the offense. Until he is legally convicted, the principles of the Constitution 
and of the common law concur in presuming that he is innocent. And the committee 
are compelled, by a sense of justice, to declare that in their opinion this presumption 
in favor of Mr. Marshall is not diminished by the recriminating publications of two 
men, who take no pains to conceal their personal resentment against him. 

Whatever motives induced the legislature of Kentucky to call the attention of the 
Senate to the above-mentioned publications, the committee are of opinion that as the 
Constitution does not give jurisdiction to the Senate the consent of the party cannot 
give it, and that therefore the said memorial ought to be dismissed. 

On motion to postpone the consideration of the report until to-morrow, it passed in 
the negative; and, 

After debate, on motion to reconsider the question for postponement, it passed in the 
negative. 

On motion to expunge all the words from “if in the present case,” inclusive, to the 
end of the report, a motion was made to amend the part proposed to be struck out by 
expunging these words: “of two men who take no pains to conceal their personal re¬ 
sentment,” and it was agreed that this motion was not in order. 

A motion was made to divide the original motion for striking out, and retain the words 
from “ if in the present case,” inclusive, to the word, “ innocent,” at the end of the first 
paragraph; and, 

After debate, the Senate adjourned. 

Friday, March 18, 1796. 

The Senate resumed the consideration of the report ot the committee to whom was 
referred the letter from the governor and the memorial of the representatives of the 
State of Kentucky, with the papers accompanying them, together with the motion made 
thereon, and under debate yesterday; and a motion was made to amend the motion by 
expunging from the report all that follows the words, “the memorial could not be sus¬ 
tained;” and, 

After debate, the Senate adjourned. 

Saturday, March 19, 1796. 

The Senate resumed the consideration of the report of the committee to whom was 


170 


SENATE ELECTION CASES 


referred the letter from the governor and the memorial of the representatives ol the 
State of Kentucky, with the papers accompanying them; also the motion made thereon 
and under debate'yesterday, together with the motion for amendment by expunging from 
the report all that follows the words, “the memorial could not be sustained;” and a 
motion was made to postpone the report and the motions made thereon, and to take into 
consideration the following resolution: 

“Whereas the honorable the legislature of the State of Kentucky have,by their me¬ 
morial transmitted by the governor of said State, informed the Senate that Humphrey 
Marshall, a Senator from the said State, had been publicly charged with the crime of 
perjury, and requested that an inquiry might be thereupon instituted, in which request 
the said Humphrey Marshall has united; and it being highly interesting, as well to the 
honor of the said State as to that of the Senate, and an act of justice due to the charac¬ 
ter of the said Humphrey Marshall that such inquiry should be had: Therefore, 

“ Resolved , That the Senate will proceed to the examination of the said charge on 
the-day of the next session of Congress; that in the opinion of the Senate a convic¬ 

tion or acquittal in the ordinary courts of justice of the said State would be the most 
satisfactory evidence on this occasion; but that if this should not be attainable by reason 
of any act of limitation or other legal impediment, such other evidence will be received 
as the nature of the case may admit and require. 

“ Resolved , That the Vice-President be requested to transmit a copy of the foregoing 
resolution to the governor of the said State. ’ ’ 

After debate, the Senate adjourned. 

Monday, March 21, 1796. 

The Senate resumed the consideration of the motion, made on the 19th instant, to post¬ 
pone the report of the committee to whom was referred the letter from the governor 
and the memorial of the representatives of the State of Kentucky, with the papers ac¬ 
companying them, together with the motions of amendment made thereon, in order to 
consider the following resolution: 

“Whereas the honorable legislature of the State of Kentucky have, by their memo¬ 
rial, transmitted by the governor of the said State, informed the Senate that Humphrey 
Marshall, a Senator from the said State, had been publicly charged with the crime of 
perjury, and requested that an inquiry might be thereupon instituted, in which request 
the said Humphrey Marshall has united; and it being highly interesting, as well to the 
honor of the said State as to that of the Senate, and an act of justice due to-the charac¬ 
ter of the said Humphrey Marshall that such inquiry should be had: Therefore, 

11 Resolved, That the Senate will proceed to the examination of the said charge on 
the-day of the next session of Congress; that, in the opinion of the Senate, a con¬ 

viction or acquittal in the ordinary courts of j ustice of the said State would be the most 
satisfactory evidence on this occasion; but that, if this should not be attainable, by reason 
of any act of limitation or other legal impediment, such other evidence will be received 
as the nature of the case may admit and require. 

“ Resolved, That the Vice-President be requested to transmit a copy of the foregoing 
resolution to the governor of the said State.” 

And on the question for postponement, it passed in the negative—yeas 7, nays 17; 
as follows: 

Yeas —Messrs. Blood worth, Brown, Burr, Langdon, Mason, Robinson, and Tazewell. 

Nays— Messrs. Bingham, Bradford, Cabot, Foster, Frelinghuysen, Gunn, Henry, 
Latimer, Livermore, Martin, Paine, Read, Ross, Rutherfurd, Strong, Trumbull, and 
Vining. 

Tuesday, March 22, 1796. 

The Senate resumed the consideration of the report of the committee to whom was 
referred the letter from the governor and the memorial of the representatives of the 
State of Kentucky, with the papers accompanying them. 

On the question to expunge these words: “if there were no objections of this sort, the 
committee would still be of opinion that the memorial could not be sustained,” it passed 
in the negative. 

On the question to expunge the following words: 

They think that in a case of this kind no person can be held to answer for an infa¬ 
mous crime unless on a presentment or indictment of a grand jury, and that in all such 
prosecutions the accused ought to be tried by an impartial jury of the State and district 
wherein the crime shall have been committed. If in the present case the party has been 
guilty in the manner suggested, no reason has been alleged why he has not long since 
been tried in the State and district where he committed the offense. Until he is legally 
convicted, the principles of the Constitution and of the common law concur in presum¬ 
ing that he is innocent ”— 

It passed in the negative. 

On motion, it was agreed to amend the next paragraph to read as follows: 

“And the committee are compelled by a sense of justice to declare that in their opin- 




HUMPHREY MARSHALL. . 171 

ion this presumption in favor of Mr. Marshall is not diminished by recriminating publi¬ 
cations, which manifest strong resentment against him.” 

And on the question to expunge the paragraph as amended, it passed in the negative. 

On motion, it was agreed to amend the last clause of the report to read as follows: 

‘ ‘And they are also of opinion that as the Constitution does not give j urisdiction to 
the Senate the consent of the party cannot give it; and that therefore the said memo¬ 
rial ought to be dismissed. ’ ’ 

On motion to expunge the clause last agreed to be amended, it passed in the negative— 
yeas 7, nays 1(1; as follows: 

Yeas —Messrs. Bloodworth, Burr, Langdon, Martin, Mason, Robinson, and Tazewell. 

Nays —Messrs. Bingham, Bradford, Cabot, Foster, Frelinghuysen, Gunn, Henry, Lat¬ 
imer, Livermore, Paine, Read, Ross, Rutherfurd, Strong, Trumbull, and Yining. 

Mr. Brown requested and was excused from voting on the question. 

On motion, it was agreed to amend the last paragraph but two of the report, begin¬ 
ning with the words “if in the present case,” by inserting the words “ by the memori¬ 
alists” after the word “alleged.” 

On the question to adopt the report as amended, it passed in the affirmative—yeas 16, 
nays 8; as follows: 

Yeas —Messrs. Bingham, Bradford, Cabot, Foster, Frelinghuysen, Gunn, Henry, Lat¬ 
imer, Livermore, Paine, Read, Ross, Rutherfurd, Strong, Trumbull, and Yining. 

Nays —Messrs. Bloodworth, Brown, Burr, Langdon, Martin, Mason, Robinson, and 
Tazewell. 

So the report was adopted, as follows: 

REPORT AS ADOPTED. 

The committee to whom was referred the letter of the governor and the memorial 
of the representatives of Kentucky, with the papers accompanying them, report: 

That the representatives of the freemen of Kentucky state in their memorial that 
in February, 1795, a pamphlet was published by George Muter and Benjamin Sebastian 
(who were two judges of the court of appeals), in which they say that Humphrey Mar¬ 
shall had a suit in chancery in the said court of appeals, in which it appearing manifest 
from the oath of the complainant, from disinterested testimony, from records, from doc¬ 
uments furnished by himself, and from the contradictions contained in his own answer, 
that he had committed a gross fraud, the court gave a decree against him; and that in 
the course of the investigation he was publicly charged with perj ury. That Mr. Mar¬ 
shall, in a publication in the Kentucky Gazette, called for a specification of the charge; 
to which the said George Muter and Benjamin Sebastian, in a like publication, replied 
that he was guilty of perjury in his answer to the bill in chancery exhibited against him by 
James Wilkinson, and that they would plead justification to any suit brought against them 
therefor That no such suit, as the said representatives could learn, had been brought. 
The said representatives further say that they do not mean to give an opinion on the 
justice of the said charge, but request that an investigation may immediately take place 
relative thereto. 

Your committee observe that the said suit was tried eighteen months before Mr. 
Marshall was chosen a member of the Senate, and that previous to his election mutual 
accusations had taken place between him and the judges of the said court relating to 
the same suit. 

The representatives of Kentucky have not furnished any copy of Mr. Marshall’s an¬ 
swer on oath, nor have they stated any part of the testimony, or produced any of the 
said records or documents, or the copy of any paper in the cause, nor have they inti¬ 
mated a design to bring forward those or any other proofs. 

Your committee are informed by the other Senator and the two Representatives in 
Congress from Kentucky that they have not been requested by the legislature of that 
State to prosecute this inquiry, and that they are not possessed of any evidence in the case, 
and that they believe no person is authorized to appear on behalf of the legislature. 

Mr. Marshall is solicitous that a full investigation of the subject shall take place in 
the Senate, and urges the principle that consent takes away error, as applying, on this 
occasion, to give the Senate jurisdiction; but, as no person appears to prosecute, and 
there is no evidence adduced to the Senate, nor even a specific charge, the committee 
think any further inquiry by the Senate would be improper. If there were no objec¬ 
tions of this sort, the committee would still be of opinion that the memorial could not 
be sustained. They think that in a case of this kind no person can be held to answer 
for an infamous crime unless on a presentment or indictment of a grand jury, and that 
in all such prosecutions the accused ought to be tried by an impartial jury of the State 
and district wherein the crime shall have been committed. If, in the present case, the 
party has been guilty in the manner suggested, no reason has been alleged by the me¬ 
morialists why he has not long since been tried in the State and district where he com- 


172 


SENATE ELECTION CASES. 


mitted the offense. Until he is legally convicted, the principles of the Constitution and 
of the common law concur iu presuming that he is innocent. And the committee are 
compelled, by a sense of justice, to declare that in their opinion the presumption in 
favor of Mr. Marshall is not diminished by the recriminating publications, which mani¬ 
fest strong resentment against him. 

And they are also of opinion that as the Constitution does not give jurisdiction to 
the Senate the consent of the party cannot give it; and that therefore the said memo¬ 
rial ought to be dismissed. 

Resolved, That the Vice-President of the United States be requested to transmit a 
copy of the foregoing report to the governor of Kentucky. 


BLOUNT AND COCKE. 


173, 


[Fourth Congress—First session.] 

WILLIAM BLOUNT and WILLIAM COCKE, 

of Tennessee . 

The history of the case as here given consists of a transcript of the proceedings of the Senate 
relating to it from the Annals of Congress, 4th Cong., 1st seas., vol. 1,1795-’96, and found within 
pages 83-122. The case simply shows that Messrs. Blount and Cocke were not admitted to seats in 
the Senate on papers presented to the Senate May 9,1796, and purporting to be credentials of being 
duly elected Senators from the State of Tennessee. It does not show why they were not admitted. 
There is, however, an allusion to a pending “bill proposing to admit the Southwestern Territory 
into the Union,” which bill was not approved until June 1,1796. From this it may be inferred 
that Messrs. Blount and Cocke were not admitted to their seats because the papers purporting to be 
their credentials of election were of earlier date than that of the admission of Tennessee into the 
Union. Mr. Blount and Mr. Cocke were again elected August 2, 1796, by the legislature of Tennes¬ 
see, after its admission as a State, and took their seats in the Senate December 6,1796. 


Monday, 3fay 9, 1796. 

On motion that a paper purporting to be the appointment of William Blount and 
William Cocke, respectively, to seats in the Senate, should be read, it was agreed that 
the motion be postponed till to-morrow. 

Tuesday, 3Iay 10, 1796. 

Ordered , That the consideration of the paper, purporting to be the appointment of 
William Blount and William Cocke to a seat in the Senate, respectively, be postponed 
until Friday next. 


Satubday, 31ay 21, 1796. 

A letter, signed William Cocke, purporting that he is appointed a Senator for the 
State of Tennessee, and claiming a seat in the Senate, was presented and read. 

Ordered , That it lie on the table. 

Monday, 31ay 23, 1796. 

A letter, signed William Blount and William Cocke, was read, stating that they have 
been duly and legally elected Senators to represent the State of Tennessee in the Senate. 

On motion, 

“That Mr. Blount and Mr. Cocke, who claim to be Senators of the United States, be 
received as spectators, and that chairs be provided for that purpose until the final decis¬ 
ion of the Senate shall be given on the bill proposing to admit the Southwestern Terri¬ 
tory into the Union,” 

A motion was made to refer the consideration thereof to a committee; and it passed 
in the negative. 

On motion to agree to the original motion, it passed in the affirmative—yeas 12, nays 
11; as follows: 

Yeas —Messrs. Blood worth, Brown, Burr, Butler, Foster, Henry, Langdon, Martin, 
Potts, Robinson, Tattnall, and Tazewell. 

Nays —Messrs. Bingham, Bradford, Gunn, Latimer, Livermore, Marshall, Read, Ross, 
Rutherfurd, Strong, and Trumbull. 


Wednesday, June 1, 1796. 

On motion by Mr. Martin that it be 

“ Resolved , That the Hon. William Blount and William Cocke, esquires, who have 
produced credentials of being duly elected Senators for the State of Tennessee, be ad¬ 
mitted to take the oath necessary for their qualification, and their seats accordingly, ’ ’ 

Ordered , That a paper, purporting to be the credentials of Mr Blount and Mr. Cocke, 
be read. 

And, on the question to agree to the resolution, it passed in the negative—yeas 10, 
nays 11; as follows: 

Yeas —Messrs. Bloodworth, Brown, Burr, Butler, Gunn, Langdon, Martin, Robinson, 
Tattnall, and Tazewell. 

Nays — Messrs. Bingham, Bradford Foster, Latimer, Livermore, Marshall, Potts, 
Read, Ross, Rutherfurd, and Trumbull. 


174 


SENATE ELECTION CASES. 


[Eleventh Congress—First session.] 

STANLEY GRISWOLD, 

Senator from Ohio from June 2 to December 11, 1809. 

Stanley Griswold had resided in Ohio from September, 1808, till May 18, 1809, when he was ap 
pointed by the governor of that State to fill a vacancy in the United States Senate. It was deter¬ 
mined that the term of residence or other qualifications necessary to entitle a person to become an 
inhabitant of the State not being defined either by the constitution or laws of the State, the cer¬ 
tificate of the governor that a person was a citizen thereof was sufficient for the Senate to proceed 
upon, he being otherwise entitled thereto. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Annals of Congress, 11th Cong., 1st and 2d sess., vol. 1, 1809-’10, within pages 
?3-37; together with the report of the committee in the case, copied from the original on file in the 
office of the Secretary of the Senate. 


Friday, June 2, 1809. 

Stanley Griswold, appointed a Senator by the executive of the State of Ohio to fill 
the vacancy occasioned by the resignation of Edward Tiffin, was qualified and took his 
seat. 

Friday, June 9, 1809. 

Resolved , That a committee of elections be appointed. 

Ordered , That Messrs. Hillhouse, Giles, Crawford, Franklin, and Robinson be the 
committee. 

On motion by Mr. Hillhouse, 

Ordered , That the credentials of Stanley Griswold, appointed a Senator by the execu¬ 
tive of the State of Ohio, be referred to this committee. 


Thursday, June 15, 1809. 

Mr. Hillhouse, from the Committee of Elections, to whom were referred the creden¬ 
tials of Stanley Griswold, esq., appointed a Senator of the United States by the execu¬ 
tive of the State of Ohio, made report. 

Whereupon, 

Resolved , That Stanley Griswold, appointed by the governor of the State of Ohio as 
a Senator of the United States, to fill the vacancy occasioned by the resignation of Ed¬ 
ward Tiffin, is entitled to his seat. 

REPORT OF COMMITTEE. 

Mr. Hillhouse, from the Committee of Elections, to whom was referred the credentials 
of an appointment by the governor of the State of Ohio of Stanley Griswold as a Senator 
of the United States, having had the same under consideration, reported: 

That Edward Tiffin, a Senator for the State of Ohio, resigned his seat since the last 
session of the legislature of said State, and during their recess. That on the 18th day 
of May last, and during said recess of said legislature, said Stanley Griswold was ap¬ 
pointed by the governor of said State to fill the vacancy occasioned by the resignation 
aforesaid. That said Stanley Griswold, being a citizen of the United States, removed 
into the said State of Ohio and has there resided since September last, but the term of 
residence or other qualifications necessary to entitle a person to become an inhabitant of 
said State are not, so far as the committee have been able to discover, defined either by 
the constitution or laws of said State; but the executive who mad© the appointment 
having certified that said Stanley Griswold is a citizen of said State, the committee sub¬ 
mit the following resolution. 

[Resolution given above.] 


JESSE BLEDSOE. 


175 


[Thirteenth Congress—Third session.] 


JESSE BLEDSOE, 

Senator from Kentucky from March 4, 1813, to December 24, 1814. 


January 20,1815, Mr. Bledsoe addressed a letter to the President of the Senate setting forth these 
facts: That previous to the 24tli of the December preceding he had forwarded his resignation to 
the governor of the State to take place on that day, to be by the governor communicated to the leg¬ 
islature ; that he had been advised by letter that the governor had received the resignation and 
would hold it up in the hope of hearing from him of a change in his determination on the subject, 
until about the last of that month, when he (the governor) would communicate it to the legislature; 
that newspaper information stated that the governor had done so, and that his successor had been 
appointed, which latter fact he had been informed was also stated in a letter to a gentleman of 
the House of Representatives; that he had received no more information. Mr. Bledsoe desired 
to know whether, under these circumstances, he was to be considered still a member of the Senate. 
It was determined that the facts stated in the letter to the President of the Senate vacated Mr. 
Bledsoe’s seat, the grounds on which the Senate proceeded not being given. It appears from the 
Journals of the Senate that Isham Talbot produced credentials of election to fill Mr. Bledsoe’s un¬ 
expired term February 2,1815, and took his seat on the same day. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from the Annals of Congress, 13th Cong., 1814-’15, vol. 3, pages 175,176. 

Friday, January 20, 1815. 

The President laid before the Senate a letter from the Hon. Mr. Bledsoe, as follows: 


Washington, January 20,1815. 

Sir: Doubts having arisen whether I have a right still to fill my seat in the Senate of 
the United States, with a view to have the question settled and a precedent established, 
and to save my own feelings on a point of duty, I beg leave, through you, to submit the 
following case for the decision of that honorable body: 

Previous to the 24th December last I forwarded by mail my resignation to the gov¬ 
ernor of the State of Kentucky, to take place on that day, to be by him communicated 
to the legislature of that State then and, so far as I am informed, still in session. I was 
by a letter from the governor of that State advised that he had received my resignation 
and would hold it up, in the hope of hearing from me and of a change in my determina¬ 
tion on that subject, until about the last of that month, when he would communicate it 
to the legislature. Newspaper information states that he did so, and that my successor 
has been appointed, which latter fact is also stated in a letter to a gentleman of the 
House of Representatives, as I have been informed. This is all the information I have 
received. Whether, under these circumstances, I am to be considered as still a member 
will be for the honorable Senate to decide. Wishing it to be understood I have no other 
solicitude as to the result than to be informed of my duty, which is concerned in con¬ 
tinuing in my place if I have a right to do so, 

I am, with high resnect, your most obedient servant, 

J. BLEDSOE. 


The Hon. John Gaillard, 

President of the Senate. 


And the letter was read. 

Whereupon 

Mr. Roberts submitted the following motion: 

“ Resolved , That the facts stated in the letter of the Hon. Jesse Bledsoe addressed to 
the President of the Senate do not vacate his seat in the Senate.” 

A motion was made by Mr. King to amend the resolution by striking out therefrom 
the word “not; ” and it was determined in the affirmative—yeas 25, nays 8; as follows: 

Yeas —Messrs. Anderson, Barbour, Brown, Chace, Daggett, Fromentin, Gaillard. 
German, Giles, Goldsborough, Gore, Horsey, Howell, Hunter, Kerr, King, Lambert, 
Mason, Morrow, Robinson, Tait, Taylor, Thompson, Wells, and Wharton. 

Nays —Messrs. Bibb, Condit, Dana, Lacock, Roberts, Smith, Turner, and Yarnum. 

On the question, Shall the resolution pass as amended? it was determined in the 
affirmative—yeas 27, nays 6; as follows: 

Yeas —Messrs. Anderson, Barbour, Brown, Chace, Daggett, Fromentin, Gaillard, Ger¬ 
man, Giles, Goldsborough, Gore, Horsey, Howell, Hunter, Kerr, King, Lacock, Lambert. 
Mason, Morrow, Robinson, Tait, Taylor, Thompson, Turner, Wells, and Wharton. 

Nays —Messrs. Bibb, Condit, Dana, Roberts, Smith, and Yarnum. 

So it was 

Resolved, That the facts stated in the letter of the Hon. Jesse Bledsoe addressed t<*» 
the President of the Senate do vacate his seat in the Senate. 


176 


SENATE ELECTION CASES, 


[Twentieth Congress—First session.] 

EPHRAIM BATEMAN, 

Senator from New Jersey from December 7, 1826, till January 12,1829, 

when he resigned. 

Mr. Bateman’s first term expired March 3,1827. February 26, 1827, his credentials of election for 
the succeeding term were presented to the Senate. February 28,1827, a remonstrance of a number 
of members of the general assembly of the State against the legality of the election was communi¬ 
cated to the Senate and ordered to lie on the table. December 3, 1827, Mr. Bateman took his seat. 
May 6, 1828, the remonstrance was referred to a select committee of five. It was to the effect that 
the election ought to be declared null and void for the reason that Mr. Bateman, being chairman of 
the joint meeting of the two houses of the legislature, had voted for himself. It stated that Theo¬ 
dore Frelinghuysen had 28 votes and Mr. Bateman 29, and claimed that Mr. Bateman was elected 
“ by his own vote, without which he neither could nor would have been elected,” and that it was 
“ repugnant to the fundamental principles of our free institutions that the same man, at the same 
time, should be both candidate and elector .” May 22, the committee reported the facts in regard to 
the election to be as stated in the remonstrance. On a preliminary point discussed, it reported that 
the Senate was “ empowered by the Constitution to judge of the elections, returns, and qualifica¬ 
tions of its members, and could not therefore be precluded by the commission emanating from the 
executive of a State from any inquiry which is necessary to the exercise of that judgment.” On 
the chief point before the committee it reported that Mr. Bateman ' ‘ was a member of the legisla¬ 
ture of New Jersey, duly elected, and competent to the exercise of every legislative power not for¬ 
bidden by its laws, among which the right to vote in the election of a Senator was one.” The com¬ 
mittee recommended the adoption of a resolution discharging the committee from the further con¬ 
sideration of the subject, which was agreed to. 

The history of the ease here given consists of a transcript of the proceedings of the Senate relating 
to it from the Senate Journals, 2d sess. 19th Cong., 1826-’27, and 1st sess. 20th Cong., 1827-’28, with the 
reportof the committee from Senate Documents, 1st sess. 20th Cong., vol. 5, Doc. No. 202, pages 1-3. 

The documents relating to the case which were printed are found in the volume of Senate Doc¬ 
uments above referred to, Doc. No. 202, pages 4-21. It appears from Niles’ Register, vol. 34, page 
223, that some debate on the subject occurred, in which Messrs. Bateman, Van Buren, and Noble 
took part; but it is not there reported, nor is it found in the Congressional Debates. 


Monday, February 26, 1827. 

Mr. Dickerson communicated the credentials of the Hon. Ephraim Bateman, appointed 
a Senator by the legislature of the State of New Jersey for the term of six years, to com¬ 
mence on the 4th day of March next. 


WEDNESDAY, February 28, 1827. 

The Vice-President communicated a letter from Samuel J. Bayard, James S. Green, 
and John R. Thompson, inclosing the remonstrances of a number of the members of the 
legislative council and general assembly of New Jersey and of a number of citizens of 
that State against the legality of the election by the legislature of Ephraim Bateman to 
the Senate of the United States from the 3d of March next; and 
Ordered , That it lie on the table. 


Monday, December 3, 1827. 

The Hon. Ephraim Bateman, appointed a Senator by the legislature of the State of 
New Jersey for the term of six years commencing on the 4th day of March last, at¬ 
tended, and the oath prescribed by law was administered to him and he took his seat in 
the Senate. 


Tuesday, May 6, 1828. 

On motion by Mr. Eaton, 

Resolved , That the remonstrance presented to the Senate at the last session against 
the legality ol the election by the legislature of New Jersey of Ephraim Bateman to 
the Senate ol the United States be referred to a select committee, toconsistof five mem¬ 
bers, to consider and report thereon. 

Ordered , That Mr. Berrien, Mr. Tazewell, Mr. McLane, Mr. Seymore, and Mr. San¬ 
ford be the committee. 

Mr. Bateman presented his answer to the remonstrance against his election; and 

Ordered , That it be referred to the last-mentioned committee. 

Mr. Eaton laid on the table two papers relating to the subject of said remonstrance 
and 

Ordered , That they be referred to the last-mentioned committee. 


EPHRAIM BATEMAN. 


177 


Thursday, May 22, 1828. 

Mr. Berrien, from the select committee to whom was referred the memorial of sundry 
citizens oi New Jersey touching the election of Ephraim Bateman, a Senator from that 
State, made a report, accompanied by a request to be discharged from the further con¬ 
sideration ol the subject; and the committee was discharged accordingly. 

On motion by Mr. Eaton, 

Ordered , That the report and the documents connected with it be printed. 

REPORT OF COMMITTEE. 

In Senate of the United States. 

May 22, 1828. 

Mr. Berrien made the following report: 

The select committee to whom was referred the memorial of sundry citizens of New 
Jersey touching the election of Ephraim Bateman, a Senator from that State, report: 

That, by a reference to the proceedings of the legislature of New Jersey, assembled in 
joint meeting on the 9th November, 1826, of which a duly certified copy has been exhib¬ 
ited by the memorialists, it appears that an election for a Senator, to represent the said 
State of New Jersey iu the Congress of the United States for six years from the 4th day 
of March then next ensuing, was on that day held; that Theodore Frelinghuysen, 
Ephraim Bateman, Thomas Chapman, and George K. Drake were put in nomination for the 
said appointment; that Ephraim Bateman was at that time a member of the said legisla¬ 
ture of New Jersey, vice-president of the council and chairman of the joint meeting; 
that the names ofi Thomas Chapman and George K. Drake were with leave respectively 
withdrawn; that the said Ephraim Bateman thereafter withdrew from the chair of the 
joint meeting, and at his instance William B. Ewing, esq., was called to the same; and, 
on motion, the same was confirmed by the joint meeting; that, after some discussion as to 
the manner of proceeding, the said Ephraim Bateman returned to the assembly room and 
resumed the chair; that the secretary was thereupon directed to call the joint meeting, 
which being done, the members voting viva voce, it appeared that there were for Theodore 
Frelinghuysen 28 votes and for Ephraim Bateman 29 votes, and that the said Ephraim 
Bateman voted for himself, and was accordingly declared to be duly appointed. 

It moreover appears to the committee that in virtue of such election, and the com¬ 
mission of the governor of New Jersey founded thereon, the said Ephraim Bateman now 
holds his seat in the Senate of the United States. 

The memorialists object to the validity of this election, because the said Ephraim Bate¬ 
man, being a member of the legislative council, vice-president of the State, and chairman 
of the joint meeting of the two houses of the legislature, permitted himself to be nomi¬ 
nated as a candidate for the office of Senator in Congress of the United States; that he 
presided as chairman of the joint meeting during the said election; that, before the vote 
was taken, he made a motion that he should be excused from voting, because he was a 
candidate, and therefore interested; and, on the question being put on his said motion, 
voted that he should not be excused, the other members of the joint meeting being equally 
divided on the same; and that, on the vote for Senator for six years, the joint meeting, 
without the vote of the said Ephraim Bateman, being again equally divided, he, the said 
Ephraim Bateman, voted for himself. 

The transcript of the proceedings of the legislature of New Jersey, which has been 
exhibited to the committee, does not show what motions were made and decided before 
the joint meeting proceeded to the election of a Senator; but it does show that on pro¬ 
ceeding to that election, the votes of the joint meeting were for Theodore Frelinghuysen 
28 and for Ephraim Bateman 29, and that Ephraim Bateman voted for himself. The ques¬ 
tion, therefore, which is presented to the consideration of the committee is whether this 
act invalidates the election. 

On the preliminary point which is discussed in the argument forwarded in behalf of 
the memorialists, as well as in that submitted by the respondent, and which relates to the 
right of the Senate to look behind the commission granted by the governor, the com¬ 
mittee cannot permit themselves to entertain a doubt. 

The Senate is empowered by the Constitution to judge of the elections, returns, and 
qualifications of its members, and cannot therefore be precluded by the commission 
emanating from the executive of a State from any inquiry which is necessary to the ex¬ 
ercise of that judgment. If this were not so, the governor of a State, by an abuse of his 
trust, either from misapprehension or design, might assume to himself the appointing 
power in exclusion of the legislature. 

The question whether the election of the respondent is invalidated by the fact that he 
voted for himself, and that without such vote he had not a majority of the votes of the 

S. Doc. 11-12 



178 


SENATE ELECTION CASES. 


joint meeting by which he was declared to be elected, is then forced upon the attention 
of the committee. 

The following clauses of the Constitution of the United States relate to the manner of 
election: 

“The Senate of the United States shall be composed of two Senators from each State, 
who shall he chosen by the legislature thereof .” 

“The times, places, and manner of holding elections for Senators and Representatives 
shall be prescribed in each State by the legislature thereof; but the Congress may at 
any time by law make or alter such regulations, except as to the places of choosing Sen¬ 
ators. ’ ’ 

The legislature of New Jersey has enacted the following provision: 

“Senators of the United States on the part of this State shall be appointed by the 
council and general assembly, in joint meeting assembled, at the place where the legis¬ 
lature shall then sit.” 

It is manifest from the aforegoing clauses that Congress may prescribe the mode of elect¬ 
ing Senators, and that in the absence of any provision by them it is competent to the legis¬ 
latures of the several States to do so. It seems equally clear that each State must pos¬ 
sess the power of defining by its organic law the constituents of its own legislative 
department, of prescribing the qualifications of its members, and the limitations under 
which the trust confided to them shall be exercised; and that the interest of a member 
in any subject of legislative action may be declared to constitute, as to that subject, a 
ground of disqualification to the exercise of his legislative functions by such interested 
member. But no such provision exists. For aught that appears to the committee the 
respondent was a member of the legislature of New Jersey duly elected and competent 
to the exercise of every legislative power not forbidden by its laws, among which the 
right to vote in the election of a Senator was one. The committee have not considered 
the question of the propriety or delicacy of the act complained of by the memorialists as 
coming within the scope of the reference made to them by the Senate. Nor have they 
felt themselves at liberty to apply to this question any abstract principles of right or of 
that system of jurisprudence which, however its principles may have become intermin¬ 
gled with our statutory regulations or its rules of proceeding may be seen to operate in 
the forms which are in use in our judicial tribunals, has no intrinsic validity in those 
tribunals or in any other forum in the United States. 

Contenting themselves with this brief view of the subject, it appears to the committee 
that the facts set forth in the memorial referred to them are not sufficient to invalidate 
the election of Ephraim Bateman as a Senator of the State of New Jersey in the Con¬ 
gress of the United States, under the election had in the joint meeting of the assembly 
of that State on the 9th day of November, 1826. They therefore recommend the follow¬ 
ing resolution: 

Resolved , That the select committee raised on the remonstrance and petition of sundry 
citizens of the State of New Jersey be discharged from the further consideration of the 

same. 


POTTER VS. ROBBINS, 


179 


[Twenty-third Congress—First session.] 

ELISHA R. POTTER vs. ASHER ROBBINS, 
of Rhode Island. 


Fe >ruary 4 1833, Mr. Knight, of Rhode Island, presented in the Senate the credentials of Asher 
Robbins, elected a Senator from Rhode Island for the term beginning March 4, 1833, which were 
read. Mr. Robbins had been elected January 19, 1833*, his credentials dated January 28, 1833. De¬ 
cember 2, 1833, the first day of the first meeting of Congress in said term, the President of the Sen¬ 
ate communicated an act of the State of Rhode Island declaring the election of January 19 void; 
also credentials of election to the Senate of Elisha R. Potter for the said term. The act had passed 
in October, 1833. Mr. Potter had been elected November 1,1833; his credentials dated November 5, 
1833. After debate on the question whether Mr. Robbins should be admitted at once to the seat to 
hold until the Senate should have decided to which of the contestants it belonged, it was determined 
that Mr. Robbins be admitted to take the oath, which he did December 2,1833, and the credentials 
of Mr. Potter were laid on the table. December 5, 1833, the credentials of Mr. Potter were re¬ 
ferred to a select committee of five elected by the Senate; and December 9 the credentials of Mr. 
Robbins were referred to the same committee. Majority and minority reports were made by the 
committee. The majority reported that the body electing Mr. Robbins was the legislature of Rhode 
Island; also a resolution “that Asher Robbins, being duly and constitutionally chosen a Senator 
in Congress from the State of Rhode Island, is entitled to his seat in the Senate,” which resolution 
passed in the affirmative May 27,1834, by a vote of 27 yeas to 16 nays. The minority reported that the 
choice of Mr. Robbins was not made by the legislature of the State; that the terms of the governor 
and senators forming part of that body had expired in May, 1832, before the election of Mr. Robbins; 
that there had been no new election by the people; and that the act passed m January, 1832, by the 
legislature, providing that in case of a failure at any annual election by the people of the election of 
a governor, lieutenant-governor, or a quorum of the Senate, such of those officers who should then 
be incumbents should continue in office until their successors should be duly qualified, under which 
act the governor and senators referred to were holding office at the time of the election, was in 
violation of the charter granted to the State in 1633, and was null and void ; and report that Mr. 
Potter was duly elected. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journal, 1st sess. 23d Cong., 1833-34; the majority report (Report No.139, Senate 
Documents, 1st sess. 23d Cong., vol. 2,1833- 34); and the minority report (Report No. 246, Senate Doc¬ 
uments, 1st sess. 23d Cong., vol. 3,1833-’34), with the exception of certain accompanying documents, 
which may be found in the volume of Senate Documents containing the report. 

The debate on the prima facie right of Mr. Robbins to the seat is found in Congressional Debates, 
vol. 10, part 1,1833-’34, pages 2-11. A debate on the right of the minority to make report, and on the 
question whether a minority report should be responsive to the majority report, is found in the 
same volume, pages 804-807,1229,1230,1252-1257. Special references to the other debates are inserted 
below. The vote on agreeing to the resolution reported by the committee was taken without de¬ 
bate. 

The references here given are all either to the Senate Journal or to the Congressional Debates 
(Gales & Seaton). The case is also reported in the Congressional Globe and the Register of De¬ 
bates (Green). 

Monday, February 4, 1833. 

Mr. Knight communicated the credentials of the Hon. Asher Robbins, appointed a 
Senator by the legislature of the State of Rhode Island and Providence Plantations for 
the term of six years, to commence on the 4th day of March next; which were read. 

Monday, December 2, 1833. 

The President communicated an act of the general assembly of the State of Rhode 
Island and Providence Plantations, declaring void the election by the general assembly 
of that State, on the 19th of January last, of Asher Robbins to the office of Senator to 
represent that State in the Senate of the United States for the term of six years from the 
3d day of March last; and the certificate of the governor and secretary of that State of 
the election, by the said general assembly, of Elisha R. Potter to the same office; which 
act and certificate were read; and, 

On motion by Mr. Poindexter, 

Ordered, That they be laid on the table. 

On motion by Mr. Poindexter that the oath prescribed by law be now administered 
to Mr. Robbins, whose credentials were received at the last session, 

A motion was made by Mr. Benton that said motion be referred to a select commit¬ 
tee to consider and report thereon. 

It was determined in the negative—yeas 15, nays 19. 

[A reference to the debate that took place on the two last motions is given in the 
head-note, it being pages 2-11 of the references.] 

On motion by Mr. Benton, the yeas and nays being desired by one-fifth of the mem¬ 
bers present, 

Those who voted in the affirmative are Messrs. Benton, Brown, Grundy, Hill, Kane, 
King of Alabama, Morris, Rives, Robinson, Shepley, Tallmadge, Tipton, White, Wil¬ 
kins, and Wright. 


180 


SENATE ELECTION CASES. 


Those who voted in the negative are Messrs. Bell, Bibb, Chambers, Clay, Ewing, Fre- 
linghuysen, Hendricks, Kent, Knight, Mangum, Moore, Naudain, Poindexter, Prentiss, 
Silsbee, Smith, Swift, Tomlinson, and Tyler. 

The question recurring on the motion by Mr. Poindexter, ‘ ‘ that the oath prescribed 
bylaw be administered to Mr. Robbins,” it was determined in the affirmative; and the 
oath was accordingly administered to Mr. Robbins and he took his seat in the Senate, 

Wednesday, December 4, 1833. 

On motion by Mr. Wright that the proceedings of the legislature of the State of 
Rhode Island, now upon the table of the Senate, showing the appointment of Elisha R. 
Potter as a Senator to represent that State in the Senate of the United States, be referred 
to a select committee of five members, to inquire and report upon the claim of the said 
Elisha R. Potter to the seat in the Senate now occupied by the Hon. Asher Robbins; and, 

On motion by Mr. Clay, 

Ordered , That the said motion be laid on the table. 

[On Mr. Wright’s motion was a brief debate on the method of appointment of select 
committees, which is found on pages 13,14 of the volume of Congressional Debates above 
referred to. ] 

Thursday, December 5, 1833. 

On motion of Mr. Wright the Senate resumed the consideration of the motion sub¬ 
mitted by him yesterday, to refer to a select committee the claim of Elisha R. Potter to 
a seat in the Senate; and it was amended and agreed to, as follows: 

“Resolved, That the proceedings of the legislature of the State of Rhode Island, now 
upon the table of the Senate, showing the appointment of Elisha R. Potter as a Sena¬ 
tor to represent that State in the Senate of the United States, be referred to a select com¬ 
mittee, to be elected by the Senate , to inquire and report upon the claim of the said Elisha 
R. Potter to the seat in the Senate now occupied by the Hon. Asher Robbins. ’ ’ 

Ordered , That Mr. Poindexter, Mr. Rives, Mr. Frelinghuysen, Mr. Wright, and Mr. 
Sprague be the committee. 

[Some remarks made on this motion of Mr. Wright are found on page 19 of the vol¬ 
ume of Congressional Debates above referred to. ] 

Monday, December 9, 1833. 

On motion by Mr. Poindexter, 

Ordered, That the credentials of Mr. Robbins be referred to the select committee ap¬ 
pointed on the claim of Elisha R. Potter to a seat in the Senate. 

Tuesday, March 4, 1834. 

Mr. Poindexter, from the select committee to whom had been referred the credentials 
of Asher Robbins, appointed a Senator in Congress from the State of Rhode Island for 
the term of six years, to commence on the 4th day of March, 1833, and the proceedings 
of the legislature of said State, convened on the last Monday of October, 1833, declaring 
void the appointment of said Robbins, and the appointment of Elisha R. Potter for the 
said term, made a report,* accompanied by the following resolution: 

“ Resolved, That Asher Robbins, being duly and constitutionally chosen a Senator in 
Congress from the State of Rhode Island, is entitled to his seat in the Senate. ” 

[Here followed a debate on the right of the minority of the committee to submit a 
report, a reference to which is given in the head-note, it being pages 804-807 of the ref¬ 
erences. ] 

Tuesday, April 1, 1834. 

On motion by Mr. Wright that he have leave to present to the Senate a paper con¬ 
taining the views and opinions of the minority of the select committee to whom had been 
referred the appointments of Asher Robbins and Elisha R. Potter, by the State of Rhode 
Island, to the Senate of the United States. 

[A reference to the debate on this motion is given in the head-note, it being pages 
1229,1230 of the references. ] ’ S P 8 

On motion by Mr. Ewing, 

Ordered, That it be laid on the table. 


Friday, April 4, 1834. 

On motion by Mr. Wright, the Senate resumed the consideration of his motion to pre¬ 
sent to the Senate a paper containing the views and opinions of the minority of the select 
committee to whom had been referred the appointments of Asher Robbins and Elisha R 
Potter by the legislature of Rhode Island to the Senate of the United States; and 


* Found on page 102. 




POTTER VS. ROBBINS. 


181 


On motion ot Mr. Forsyth, 

Ordered , Tha it be laid on the table, and that the said paper, with the documents 
therein referred to, except those marked G, H, and I, be printed. 

[A reference to the debate following Mr. Wright’s motion is given in thehead-note i i 
being pages 1252-1257 of the references. ] 

[The consideration of the report was successively postponed April 10, May 8, May 12, 
and May 19.] 


Tuesday, May 27, 1834. 

The Senate resumed the consideration of the report of the select committee on the re¬ 
spective claims of Messrs. Robbins and Potter to a seat in the Senate; and, on the ques¬ 
tion to concur in the resolution with which it concludes, as follows: 

“ Resolved , That Asher Robbins, being duly and constitutionally chosen a Senator in 
Congress from the State of Rhode Island, is entitled to his seat in the Senate,” 

It was determined in the affirmative—yeas 27, nays 16. 

On motion of Mr. Wright, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs Bell, Bibb, Calhoun, Chambers, Clay, 
Clayton, Ewing, Frelinghuysen, Hendricks, Kent, Knight, Leigh, McKean, Mangum, 
Naudain, Poindexter, Porter, Preston, Silsbee, Smith, Southard, Sprague, Swift, Tip- 
ton, Tomlinson, Waggaman, and Webster. 

Those who voted in the negative are Messrs. Benton, Brown, Forsyth, Grundy, Hill, 
Kane, King of Alabama, King of Georgia, Linn, Morris, Robinson, Shepley, Tallmadge, 
White, Wilkins, and Wright. 

[Some remarks on the question of proceeding to a vote without debate are found in 
the Congressional Debates, vol. 10, part 2, 1833-’34, page 1813.] 

COMPENSATION OF ME. POTTEE. 

Thuesday, June 5, 1834. 

The following motion, submitted by Mr. Wright, was considered and agreed to: 

“ Resolved, That the Committee on Finance be instructed to inquire into the justice and 
expediency of providing by law for the pay and mileage of the Hon. Elisha R. Potter from 
the commencement of the present session of Congress up to the time of the final decision 
of the contest for a seat in the Senate between the said Potter and the Hon. Asher Robbins, 
at the rate of pay allowed to the members of the Senate. ’ ’ 


Tuesday, June 10, 1834. 

On motion of Mr. Webster, 

Ordered , That the Committee on Finance be discharged from the consideration of the 
resolution relating to the claim of Elisha R. Potter for mileage and compensation. 

Feiday, June 12, 1834. 

The following motion submitted by Mr. Wright was considered: 

“Whereas the Hon. Elisha R. Potter did at the commencement of the present session of 
Congress cause to be laid before the Senate a commission from the governor of the State 
of Rhode Island, duly authenticated, and constituting the regular prima facie evidence to 
entitle him to a seat in the Senate; and 

“Whereas the contest for the seat claimed by Mr. Potter was not finally decided by 
the Senate until the 27th day of May now last past, when the said seat was awarded to 
the Hon. Asher Robbins: Therefore, 

‘ ‘ Resolved, That the said Elisha R. Potter is entitled to the compensation of mileage al¬ 
lowed by law to members of Congress for his travel from his place of residence, in the 
State of Rhode Island, to the capital, and returning; and also to the per diem allowance 
of a member of Congress for the time he actually attended at the city of Washington 
during the contest pending before the Senate in relation to the seat claimed by him and 
occupied by the Hon. Mr. Robbins.” 

On motion of Mr. Wright, 

Ordered, That it be postponed until to-morrow. 

Monday, June 16, 1834. 

The Senate resumed the consideration of the motion submitted by Mr. Wright on the 
12th instant, to compensate Elisha R. Potter for mileage and per diem to the 27th ultimo, 
and 

Ordered, That it be referred to the Committee on the Judiciary. 

[Some remarks on the resolution are found in part 2 of the Congressional Debates 
already referred to, page 2021.] 


182 


SENATE ELECTION CASES. 


Thursday, June 19, 1834. 


On motion of Mr. Clayton, 

Ordered , That the Committee on the Judiciary be discharged from the consideration 
of the resolution to compensate Elisha R. Potter for mileage and attendance to the 27th 
ultimo. 

The Senate then proceeded to consider said resolution, and it was amended to read as 
follows: 

“ Whereas the Hon. Elisha R. Potter did at the commencement of the present session of 
Congress cause to be laid before the Senate credentials authenticated by the governor of the 
State of Rhode Island declaring the election of Asher Robbins void, and that said Potter had 
been elected by the legislature a Senator from the State of Rhode Island; and 

‘ ‘ Whereas the contest for the seat claimed by Mr. Potter was not finally decided by the 
Senate until the 27th day of May now last past, when the said seat was awarded to the 
Hon. Asher Robbins: Therefore, 

“ Resolved , That the said Elisha R. Potter ought , under the circumstances of the case , to be 
paid the compensation of mileage allowed by law to members of Congress for his travel 
from his place of residence in the State of Rhode Island to the Capitol, and returning; 
and also the per diem allowance of a member of Congress for the time he actually 
attended at the city of Washington during the contest pending before the Senate in 
relation to the seat claimed by him, and occupied by the Hon. Mr. Robbins; and that 
the Judiciary Committee be instructed to prepare a bill or resolution for that purpose!' 

On the question to agree to the resolution as amended, it was determined in the af 
firmative—yeas 24, nays 22. 

On motion by Mr. Wright, the yeas and nays being desired by one-fifth of the mem* 
bers present, 

Those who voted in the affirmative are Messrs. Benton, Bibb, Brown, Chambers, Grundy, 
Hendricks, Hill, Kane, King of Alabama, Knight, Linn, McKean, Moore, Morris, Preston, 
Robinson, Shepley, Silsbee, Tallmadge, Tyler, Waggaman, White, Wilkins, and Wright. 

Those who voted in the negative are Messrs. Bell, Black, Clay, Clayton, Ewing, For¬ 
syth, Frelinghuysen, Kent, King of Georgia, Leigh, Mangum, Naudain, Poindexter, 
Porter, Prentiss, Smith, Southard, Sprague, Swift, Tipton, Tomlinson, and Webster. 

[Some remarks on the resolution are found in part 2 of the Congressional Debates 
already referred to, pages 2037, 2038.] 


Monday, June 23, 1834. 

[The Senate having under consideration the bill entitled ‘ ‘ An act making appropria¬ 
tions for the civil and diplomatic expenses of Government for the year 1834.”] 

Pursuant to instruction of a majority of the Committee on the Judiciary, 

Mr. Clayton moved further to amend the bill by inserting the following section: 

“Sec. 4. And be it further enacted, That the Secretary of the Senate be, and he 
hereby is, directed to pay, out of the fund appropriated by law for the pay of members 
of Congress, to Elisha R. Potter, of the State of Rhode Island, such compensation as is 
allowed by law to members of Congress, for his travel from his place of residence to the 
city of Washington to claim a seat in the Senate, and for his return; and also the per 
diem compensation for the days he was in actual attendance at the seat of Government 
from the commencement of the present session of Congress until the final decision of 
the Senate against his right to the seat claimed by him. ” 

It was determined in the affirmative—yeas 20, nays 19. 

On motion of Mr. Clayton, the yeas and nays being desired by one-fifth of the mem¬ 
bers present, 

Those who voted in the affirmative are Messrs. Benton, Bibb, Brown, Chambers, 
Grundy, Hendricks, Hill, Kane, King of Alabama, Knight, Linn, Preston, Robinson, 
Shepley, Silsbee, Tallmadge, Tyler, White, Wilkins, and Wright. 

Those who voted in the negative are Messrs. Black, Clay, Clayton, Ewing, Forsyth, 
Frelinghuysen, Kent, King ol Georgia, Leigh, Mangum, Naudain, Poindexter, Porter, 
Prentiss, Smith, Southard, Sprague, Tomlinson, and Webster. 

REPORT OF COMMITTEE. 

In the Senate of the United States. 

March 4,1834.—Ordered to be printed. 

Mr. Poindexter made the following report: 

The select committee to which was reYerred the credentials of Asher Robbins chosen 
a Senator in Congress from the State of Rhode Island for the term of six years to com¬ 
mence on the 4th day of March, 1833; and also the proceedings of the legislature of 


POTTER VS. ROBBINS. 


183 


said State, convened on the last Monday of October, 1833, declaring the election of the 
said Asher Robbins void, who thereupon proceeded to elect Elisha R. Potter a Senator 
in Congress for six years, to commence on the 4th day of March, 1833, instead of said 
Asher Robbins, whose election to fill said office had been declared void as aforesaid, have 
had the whole subject so referred to them under their serious and attentive considera¬ 
tion, and submit the following report: 

That it appears by the credentials of Asher Robbins and the proceedings of the general 
assembly of the State of Rhode Island hereto appended, and marked A, that the senate 
and house of representatives of said State, then sitting in the city of Providence, met in 
grand committee in conformity to the usage of the legislature in such cases, for the pur¬ 
pose of choosing a Senator to represent said State in the Congress of the United States; 
and that, on counting the ballots, it appeared that Mr. Robbins was elected by a majority 
of four votes, who was thereupon declared to be duly elected a Senator to represent said 
State in the Congress of the United States for six years from and after the 4th day of 
March then next following; that, having performed the duty for which the two houses 
had met, the grand committee was dissolved, and the members of each house repaired 
to their respective chambers. It further appears to your committee that on the 28th day 
of the same month Of January his excellency Lemuel H. Arnold, governor of the State 
of Rhode Island, by commission in due form, bearing his signature, under the great 
seal of the State, did proclaim and make known the election of the said Asher Robbins 
as aforesaid, and caused the said commission, signed and sealed as aforesaid, to be de¬ 
livered to the said Asher Robbins, which was presented to the Senate of the United States 
in open session on the 4th day of February, 1833, and on motion read and entered on 
the journals of the Senate. By virtue of the force and effect of the aforesaid commis¬ 
sion, the said Asher Robbins, Senator-elect from the State of Rhode Island, appeared in 
the Senate Chamber on the 2d day of December, 1833, was duly sworn to support the 
Constitution of the United States, and took his seat as a member of the Senate. 

It further appears to your committee that at a subsequent session of the general assem¬ 
bly of Rhode Island, begun and held at the town of South Kingston in said State, on 
the last Monday of Octobor, 1833, certain proceedings were had relative to the election 
of the said Asher Robbins as above mentioned, which resulted in the adoption of a dec¬ 
laration or act of the said general assembly, by which the election of Mr. Robbins is 
declared to be “ null and void and of no effect, ’ ’ and the office vacated. Whereupon, at 
the same session of the general assembly the two houses met in grand committee on the 
1st day of November, 1833, and proceeded to elect a Senator to represent the State of 
Rhode Island in the Congress of the United States for the term of six years, commenc¬ 
ing on the 4th day of March preceding, to supply the vacancy created, or supposed to 
be created, by the act declaring the election of Mr. Robbins null and void; and the ma¬ 
jority appearing to be in favor of Elisha R. Potter, the said Potter was thereupon de¬ 
clared to be duly elected a Senator in Congress from the said State for the term aforesaid, 
when the grand committee was dissolved and the members repaired to their respective 
chambers. That on the 5th day of the same month of November his excellency John 
Brown Francis, governor of the State of Rhode Island, by commission in due form, bear¬ 
ing his signature, under the great seal of the State, did proclaim and make known the 
election of the said Elisha R. Potter as aforesaid, and cause the said commission, signed 
and sealed as aforesaid, to be delivered to the said Elisha R. Potter, which was presented 
to the Senate on the 2d day of December last, and on the 5th day of the same month 
referred to this committee. The documents relating to those proceedings are subjoined 
and marked B. This statement of the case is deemed sufficient to show the questions 
which arise for the consideration of your committee, and which they now proceed to 
examine: 

1. Was the commission of Asher Robbins made and executed in conformity with the 
provisions of the Constitution of the United States, and the laws and usages of Rhode 
Island prescribing the time, place, and manner of choosing Senators to Congress? 

2. Was Mr. Robbins, at the time of his election, eligible, according to the Constitution 
of the United States, to the office of Senator? 

3 Was he chosen by the legislature of the State of Rhode Island? 

If these questions be answered affirmatively it will be unnecessary to inquire into the 
validity of the subsequent election of Mr. Potter, or into the power of the legislature 
to create a vacancy by annulling the act of their predecessors; and therefore your com¬ 
mittee limit the views which they deem it proper to take of the subject referred to them 
to the objections made to the commission of Mr. Robbins on the ground that the legis¬ 
lature by whom he was chosen had no power to elect a Senator to Congress, and that 
the governor who signed and sealed his commission was not at the time competent to 
exercise any power or perform any duty in his official character. These objections rest 
on the same general principle; and if they are supported by the facts disclosed in the 
case, connected with the constitution and laws of the State, it will then be proper to 
examine the claims of Mr. Potter to a seat in the Senate, and not otherwise. 


184 


SENATE ELECTION CASES. 


The Constitution of the United States provides that “each house shall be the judge 
of the elections, returns, and qualifications of its own members.” (Article 1, section 5.) 

The members of the House of Representatives are to be chosen by the people of the 
several States having the qualifications requisite for electors of the most numerous 
branch of the State legislature. The members of the Senate are to be chosen by the 
legislatures of each State, and the times, places, and manner of holding elections for Sen¬ 
ators and Representatives shall be prescribed in each State by the legislature thereof; 
but the Congress may at any time, by law, make or alter such regulations, except as to 
the places of choosing Senators. Congress having passed no law on the subject, we must 
look into the statutes of the several States for those regulations and conform our action 
to them. The Senators from each State are equal in number, and cannot be increased 
or diminished even by an amendment of the Constitution without the consent of the 
States respectively. They are chosen by the States as political sovereignties, without 
regard to their representative population, and form the Federal branch of the National 
Legislature. The same body of men which possesses the powers of legislation in each 
State is alone competent to appoint Senators to Congress for the term prescribed in the 
Constitution. In the performance of this duty the State acts in its highest sovereign 
capacity, and the causes which would render the election of a Senator void must be such 
as would destroy the validity of all laws enacted by the body by which the Senator was 
chosen. Other causes might exist to render the election voidable , and these are enumer¬ 
ated in the Constitution, beyond which the Senate cannot interpose its authority to disturb 
or control the sovereign powers of the States vested in their legislatures by the Constitu¬ 
tion of the United States. We might inquire, was the person elected thirty years of 
age at the time of his election? Had he been nine years a citizen of the United States? 
Was he at the time of his election a citizen of the State for which he shall have been 
chosen? Was the election held at the time and place directed by the laws of the State? 
These are facts capable of clear demonstration by proofs, and in the absence of the requi¬ 
site qualifications in either of the specified cases, or if the existing laws of the State 
regulating the time and place for holding the election were violated, the Senate, acting 
under the power to judge of “the elections, returns, and qualifications of its own mem¬ 
bers,” might adjudge the commission of the person elected void, although in all other 
respects it was legal and constitutional. But where the sovereign will of the State is 
made known through its legislature, and consummated by its proper official function¬ 
aries in due form, it would be a dangerous exertion of power to look behind the commis¬ 
sion for defects in the component parts of the legislature, or into the peculiar organization 
of the body for reasons to justify the Senate in declaring its acts absolutely null and 
void. Such a power, if carried to its legitimate extent, would subject the entire scope 
of State legislation to be overruled by our decision, and even the right of suffrage of in¬ 
dividual members of the legislature whose elections were contested might be set aside. 
It would also lead to investigations into the motives of members in casting their votes, 
for the purpose of establishing a charge of bribery or corruption in particular cases. 
These matters, your committee think, properly belong to the tribunals of the State, and 
cannot constitute the basis on which the Senate could, without an infringement of State 
sovereignty, claim the right to declare the election of a Senator void who possessed the 
requisite qualifications and was chosen according to the forms of law and the Constitution. 

These general views are offered to show that contested elections in the popular branch 
of Congress, where the people exert in their primary capacity the right of suffrage under 
various limitations and restrictions in the choice of Representatives from certain pre¬ 
scribed districts, open a much wider field of inquiry and investigation than a like con¬ 
test for a seat in the Senate, which is a body wholly federative in its character and 
organization and whose members hold their appointments from and represent the States 
as political sovereignties. Your committee having regard to these rules as applicable 
to all contested elections in the Senate, proceed to apply them to the case now under 
consideration. 

It is admitted that the sitting member, Asher Robbins, possesses all the qualifications 
required by the Constitution of the United States to be a Senator in Congress, and that 
his commission as such is in due form according to the laws and usages of Rhode Island. 
These points being conceded, the remaining and the only question to be decided is, was 
the body by which he was chosen a Senator the legislature of Rhode Island ? or was it 
merely an assemblage of citizens without authority to pass laws prescribing that which 
is right and prohibiting that which is wrong to the people of the State ? On this ground 
both parties seem content to rest their claims to a seat in the Senate. 

The general assembly of Rhode Island, as at present organized, consists of two sepa¬ 
rate and distinct branches: The senate, over which body the governor presides, and the 
house of representatives—each chosen by the people of the State who are freemen or 
freeholders and entitled to vote at elections. The governor and senate are elected an¬ 
nually; the members of the house of representatives, semi-annually. To constitute a 


POTTER VS. ROBBINS. 


185 


legislature capable of enacting laws or performing any other duty confided to that 
body by the constitution of the State or of the United States it is essential that there 
should be in existence at the same time a governor or some officer authorized to perlorm 
the executive functions, a senate, and a house of representatives. In the absence of 
either the other branches could not perform any act which would be obligatory on the 
people ol the State. We are then brought to the inquiry whether these component 
parts oi the legislature of Rhode Island were assembled at Providence in January, 1833, 
when Mr. Robbins was elected in grand committee a Senator to Congress? It is alleged 
on the one hand that the governor and senate had ceased to exist in the month of May, 
1832, by the expiration of the term of one year for which they had been elected and the 
failure of the people to elect their successors by a majority of all the votes given in, ac¬ 
cording to the constitution and laws of the State. On the other, it is maintained that 
the powers of the governor and senate were by law extended until their successors should 
be duly chosen and engaged, for which purpose special elections were ordered and held, 
but without success, prior to the time at which Mr. Robbins was elected. For the pur¬ 
pose of forming a correct judgment of this anomaly in the constitution of the State it is 
necessary to recur to the ancient charter of Charles 11, of England, granted to the col¬ 
ony of Rhode Island and Providence Plantations in 1063, which has not been superseded 
by a written constitution since the Revolution, and to the various laws which have been 
enacted modifying the provisions of that charter in such manner as to adapt it to the 
condition and convenience of the people of the State. By the charter certain political 
powers, rights, and privileges are granted to the inhabitants of the colony, among which 
are the following: 

“And further, we will and ordain, and by these presents, for us, our heirs and suc¬ 
cessors, do declare and appoint that, for the better ordering and managing of the atfairs 
of the said company and their successors, there shall be one governor, one deputy gov¬ 
ernor, and ten assistants, to be from time to time constituted, elected, and chosen, out of 
the freemen of the said company for the time being, in such manner and form as is here¬ 
after in these presents expressed; which said officers shall apply themselves to take care 
for the best disposing and ordering of the general business and affairs of and concerning 
the lands and hereditaments hereinafter mentioned to be granted, and the plantation 
thereof, and the government of the people there .”—Charter of R. page 6, Digest 1822. 

“And that forever hereafter, twice in every year, that is to say, on every first Wednes¬ 
day in the month of May, and on every last Wednesday in October, or oftener in case it 
shall be requisite, the assistants, and such of the freemen of the said company, not ex¬ 
ceeding six persons for Newport, four persons for each of the respective towns of Provi¬ 
dence, Portsmouth, and Warwick, and two persons for each other place, town, or city, 
who shall be from time to time thereunto elected or deputed by the major part of the 
freemen of the respective towns or places for which they shall be so elected or deputed, 
shall have a general meeting or assembly, then and there to consult, advise, and deter¬ 
mine in and about the affairs and business of the said company and plantations. And 
further, we do, of our especial grace, certain knowledge, and mere motion, give and grant, 
unto the said governor and company of the English colony of Rhode Island and Provi¬ 
dence Plantations in New England, in America, and their successors, that the governor, 
or, in his absence, and by his permission, the deputy governor of the said company for 
the time being, the assistants, and such of the freemen of the said company as shall be 
so as aforesaid elected or deputed, or so many of them as shall be present at such meet¬ 
ing or assembly as aforesaid, shall be called the general assembly; and that they, or the 
greatest part of them then present, whereof the governor or deputy governor and six of 
the assistants, at least to be seven, shall have, and hereby have, given and granted unto 
them full power and authority from time to time, and at all times hereafter, to appoint, 
alter, and change such days, times, and places of meeting and general assembly as they 
shall think fit, &c.” * * * 

“And from time to time to make, ordain, constitute, or repeal such laws, statutes, 
orders, and ordinances, forms and ceremonies of government and magistracy, as to them 
shall seem meet for the good and welfare of the said company, and for the government 
and ordering of the lands and hereditaments hereinafter mentioned to be granted, and 
of the people that do, or at any time hereafter shall, inhabit or be within the same, so 
as such laws, ordinances, and constitutions so made be not contrary and repugnant unto, 
but as near as may be agreeable to the laws of this our realm of England, considering the 
nature and constitution of the place and people there .”—Digest of 1822, pages 6, 7, 8 of 
Charter. 

“And further, our will and pleasure is, and we do hereby for us, our heirs and suc¬ 
cessors, establish and ordain that yearly, once in the year forever hereafter, namely, the 
aforesaid Wednesday in May, and at the town of Newport, or elsewhere, if urgent occa¬ 
sion do require, the governor, deputy governor, and assistants of the said company, and 
other officers of the said company, or such of them as the general assembly shall think 


186 


SENATE ELECTION CASES. 


fit, shall be in the said general court or assembly to be held from that day or time, newly 
chosen for the year ensuing by such greater part of said company for the time being as 
shall be then and there present.’’—Ztyestf of 1822, page 9 of the Charter. 

These extracts from the charter will serve to show the original structure of the gov¬ 
ernment of Rhode Island and Providence Plantations. The charter provides that the 
governor, deputy governor, and assistants shall be chosen annually on the first Wednes¬ 
day of May in each and every year by a majority of the company at Newport. The 
deputies to the general assembly were to be chosen in the several towns for which they 
were elected semi-annually, and to assemble on the first Wednesday in May and the last 
Wednesday in October, or oftener, in case it should be requisite, at such place as might 
be designated by law. The governor, deputy governor, assistants, and deputies, as or¬ 
ganized under the charter, formed one body, which is called the general assembly. 

The unlimited power granted to this body to repeal or modify the existing regulations 
for the government of the colony, or to adopt such new regulations as might be deemed 
expedient for the convenience of the people, has been exercised from time to time before 
and since the Revolution, when Rhode Island became one of the States of the Union. 
These modifications have materially changed the provisions of the charter, and estab¬ 
lished fundamental principles of government inconsistent with those recognized and or¬ 
dained by the charter, which now remains only the nominal foundation of the legisla¬ 
tion of the State. Your committee think it necessary to present a summary of these 
interpolations on the charter, as they furnish a practical illustration of the powers 
claimed and exercised in this respect by the general assembly of Rhode Island, the va¬ 
lidity of which does not seem to have been at any time questioned: 

1. By the last clause of the charter above cited the election of governor, deputy gov¬ 
ernor, and assistants is required to be made at Newport on the first Wednesday of May 
in each year by the whole body of the freemen of the company assembled at that place 
in person. This is the literal requirement of the charter, and was made, we presume, 
in conformity to analogous customs in England and Wales in the elections for counties 
and boroughs. The difficulty of convening the freemen from the different towns of the 
colony at the season indicated, and the expense and inconvenience attending their assem¬ 
blage at Newport for an uncertain length of time until an election could be effected, 
very speedily suggested a modification of this requirement. As early as October 26,1664, 
a little more than one year after the reception of the charter, after stating the incon¬ 
veniences attending a personal voting at Newport, the general assembly ordained that 
“voting by proxces be enjoyed by all the freemen of this collony, and that each freeman 
desiering to vote by proxy shall subscribe their names on the outside, and deliver his 
votts sealed up into the hands of a majestrate in the face of a towne metting lawfully 
called, and notice given for that porpose * * * which sayd votts shall be by such 
whome the General Assembly shall appoynt, opened and delivered forth as the respective 
choice of the several votts shall requier; provided that this order shall noe way preju¬ 
dice or discorradge any who desier to be personally present. ’ ’— Ancient Records , page 256. 

This palpable departure from the original provisions of the charter continued to be the 
law of Rhode Island for nearly a century, viz, until August, 1760, when a different ar¬ 
rangement was substituted, but still more manifestly departing from the literal require¬ 
ments of that instrument. 

2. As stated in our remarks immediately following the passages of the charter above 
cited, the general assembly of the colony was constituted into one body, consisting of a 
governor, deputy governor, and ten assistants, and so many deputies elected from the 
freemen of the several towns as are specifically stated in the second of those quotations. 
This single body was invested with all the powers, legislative and judicial, which the 
clauses of the charter enumerate, and acted as a single body, determining its acts by a 
majority of voices for the three successive years subsequent to its creation by charter. 
In March 27, 1666, at the suggestion of the towns of Portsmouth and Warwick, an act 
passed the general assembly ‘ 4 concerning deputies sitting apart. ’ ’ After stating the in¬ 
conveniences of a single assembly, they enact and declare that “it is freely agreed that 
the request of the towns aforesaid be granted, and ordered that the magestrates ’ ’ (gov¬ 
ernor, deputy governor, and assistants) “sitt by themselves, and the deputies by them¬ 
selves; and that each house soe sitting have equal power and priviledgeinthe proposing, 
composing, and propogattingany act, order, and law in generall assembly, and that nether 
house in generall assembly shall have power, without the concurrance of the majour part 
of the other house, to make any law or order to be accounted as an acte of the generall 
assembly. ’ ’— Ancient Records , page 298. 

This law of the assembly of 1666, and not the charter, is the whole basis of the pres¬ 
ent organization of the legislature of Rhode Island, which consists, as we have before 
stated, as at present constituted, of two branches—a senate and a house of representa¬ 
tives, each armed with a negative upon the other. 

3. The act of August, 1760, is another and remarkable departure from the literal require¬ 
ments of the charter of King Charles. By the charter itself the whole body of freemen 


POTTER VS. ROBBINS. 


187 


of the colony were to assemble, in person, at Newport, and to elect, by a major vote oi 
the company, the governor, deputy governor, and assistants. The law of October, 1664, 
relaxed this provision and substituted a mixed system of voting for these officers, partly 
in person and partly by proxy. This continued to be in force until the session of the 
general assembly in August, 1760, when a law was passed entitled “An act regulating 
the general election.” In the preamble to this act it is set forth “that it is found, by 
long experience, the freemen going to Newport to put in their votes for general officers 
at the elections is very injurious to the interest and public weal of the colony; * * * 
and that all the ends of voting may be as fully attained by the freemen’s putting in 
their proxy votes at the town meeting in their own towns, appointed by law for that 
purpose, agreeable to the ancient and laudable custom of most of the prudent freemen: 
Therefore, 

“ Be it enacted , That, for the future, every freeman who is disposed to give his suffrage at 
the election of general officers in this colony shall do it by putting in a proxy vote in the 
town meeting in the town to which he belongs, on the third Wednesday of April next pre¬ 
ceding the general election, agreeable to the law and well-known custom of proxiug; and 
uo freeman shall be permitted to vote for general officers at the general election held at 
Newport, on the first Wednesday in May, but only such as be members of the general 
assembly.” 

Thus, by this act of the legislature, the whole system of voting laid down by the 
charter is radically altered. The assembling of the freemen of the colony at Newport 
on the first Wednesday in May, as the charter prescribes, is entirely abrogated; the 
mixed method of voting, partly in person and partly by proxies sent to Newport from 
the other towns of the colony, is also modified; and the whole system is changed to the 
law as it now stands, with very slight variations, viz, that the freemen, on the third 
Wednesday of April in each year, in their several towns , shall proceed to elect a governor, 
deputy governor, and assistants, and not in one body assembled in Newport, on the first 
Wednesday in May. 

The law of 1760 was deficient in one important particular, which the act of January, 
1832 (the particular act now complained of), was intended to remedy. Formerly, and 
from the reception of the charter until August, 1760, a failure to elect general officers 
was a contingency not to be apprehended, because the freemen assembled at Newport 
would continue assembled and voting until a choice were effected. But by the act of 
August, 1760, the freemen were to vote in separate towns, and the votes thus given hav¬ 
ing been transmitted to Newport, were counted iu the presence of the governor and as¬ 
sistants of the former year, in convention with the deputies then recently elected. If it 
appeared, on counting, that there was no choice by the major part of the freemen, there 
was no provision in this act for a second trial for these offices in the separate towns; and 
the body of the freemen not being assembled iu Newport, it was impossible to go on in 
the ancient method and continue to vote till the choice was consummated. If the re¬ 
quirements of the charter, and the usages under it, had been strictly complied with, the 
body of the freemen would have appeared at Newport, the governor and assistants of the 
former year would have presided in the election, and the voting would have gone on until 
an election were completed. The act of August, 1760, having changed this arrangement 
in the manner above stated, all that the act of January, 1832, did was to follow out its 
provisions, and to declare that the governor and assistants of the former year should hold 
over, while other trials were had in the separate towns, and until an election of general 
officers was effected by those trials, exactly as they would have held over if the election 
had been made by the body of the freemen assembled at Newport. But of the character 
of this act your committee will speak more particularly hereafter. 

4. Your committee will barely advert to two other acts of the legislature of Rhode 
Island which conflict more or less with the provisions of the charter, but whose validity 
they believe has never been disputed; such as the act d^rolving the powers and duties of 
governor on a person who had never been elected by the freemen to that office, in certain 
cases; also, the act authorizing the governor, in certain events, to appoint times and 
places of the meeting of the general assembly, although the charter provides that the as¬ 
sembly itself shall appoint such times and places; both these acts being embodied in 
“the act to provide for the performance of the duties of the governor in certain cases, 
and also for regulating the sitting of the general assembly.”— Digest of 1822, page 99. 

One other act of the general assembly deserves notice in this connection, as illustrating 
in a striking manner the peculiar character of legislation in Rhode Island. The bill of 
rights, which in all other States emanates from the people in their primary capacity, in 
this State is incorporated into its code of statutes in the form of an act declaratory of the 
rights of the people. 

The foregoing review of the innovations made from time to time during the existence 
both of the colonial and State governments of Rhode Island on the provisions of the char¬ 
ter conferring on the people political rights demonstrates the power claimed and exer- 


188 


SENATE ELECTION CASES. 


cised by the general assembly to alter or modify, without restraint, the fundamental 
principles of the form of government transmitted to them by the King of Great Britain. 
This power has never been denied either in reference to its validity or extent. The right 
of suffrage has been extended to a class of citizens who did not enjoy it under the char¬ 
ter; the elections directed to be held at Newport on the first Wednesday of May in each 
year are held throughout the State on such days and at such places as are provided for 
bylaw; the manner of holding and conducting elections and of returning the votes is 
changed; the general assembly is divided into two separate branches, each having a neg¬ 
ative^ on the action of the other, contrary to the charter, by which it is constituted into 
one body; a bill of rights, which properly belongs to the constitutions of the several States 
as a part of the fundamental law, has been given to the people of Rhode Island by a 
simple act of legislation. These, and many other primary principles, are to be found in 
the code of statute law of that State, while of the ancient charter there seems to be scarcely 
a vestige remaining untouched, except that clause which prohibits the enactment of any 
law contrary to the laws of England, and this became obsolete by virtue of the Revolution. 

The people of the State have ratified all these changes, not only by their silent acqui¬ 
escence, but by their positive sanction. The power to make them was necessary to the 
welfare of the people, and was wisely reserved in the precise words of the charter. Your 
committee can perceive nothing in the act of January, 1832, entitled “An act in addition 
toan act entitled ‘Anact regulating the manner of admitting freemen, and directing the 
method of electing officers in this State,’ ” which assumes a power different in its charac¬ 
ter from that which had been previously recognized as appertaining to the general assem¬ 
bly. The necessity of proper precautions to prevent an interregnum in the government 
of the State was seen and duly considered by the legislature. They believed it to be not 
only possible but highly probable that the people might fail at the regular annual elec¬ 
tion to choose a governor, lieutenant-governor, and a sufficient number of senators to 
form a constitutional quorom for the transaction of business. The result proves that this 
apprehension was well founded. The first section of the act declares that in case there 
be no choice of a governor at an annual election the house of representatives shall order 
a new election for the choice of a governor, and that in case no choice should then be 
made, that the order shall be renewed as often as the votes are returned to the general as¬ 
sembly until a governor be elected, or until such proceedings shall become unnecessary 
by reason of the provision of law for the next annual election; and in the mean time 
that the governor of the preceding year shall continue, under his former engagement, to 
exercise all the powers and perform and execute all the functions or duties of the office of 
governor until another shall be elected and engaged in his place; and shall receive such pro¬ 
portion of the salary as corresponds with the time he shall so serve. The same provisions 
are made as to the lieutenant-governor and all the other general officers, in case of a like fail¬ 
ure to elect those officers at the annual election. The third section of the act relates to 
the choice of senators (assistants), and directs that new elections shall be ordered as in 
the cases above mentioned and with the same limitations, unless six senators, being the 
requisite number to form a quorum, shall have been chosen at the annual election. The 
contingencies intended to be provided against by this act actually occurred. No gov¬ 
ernor nor lieutenant-governor was chosen to succeed those of the past year; the number of 
senators required for a quorum were not elected by the people; and, in compliance with 
the provisions of the act, new elections were ordered by the house of representatives where 
a failure to elect had happened, until in the judgmeut of that house “ such proceedings 
had become unnecessary by reason of the provision of law for the next annual election.” 

The general assembly, in the mean time, as at that time constituted, continued to per¬ 
form all the functions which properly belong to that body until the end of the session at 
Providence, January, 1833. It remains then to be inquired, was this body so assem¬ 
bled the legislature of Rhode Island ? The law by virtue of which they continued to ex¬ 
ercise the powers of legislation is said to be repugnant to the charter, and therefore void. 
If this be a sound objection it at once annuls every part of their proceedings, and as a nec¬ 
essary consequence, that of choosing a Senator in Congress. 

Your committee are unable to find any clause in the charter which forbids the exer¬ 
cise of such a power as that claimed by thepassageof the act of January, 1832. It seems, 
on the contrary, to have been the intention of the crown to perpetuate the existence of 
the legislative power in the colony by an express provision—that the authority, office, and 
power of the governor, deputy governor, and assistants shall cease and determine when 
their successors shall be elected and engaged, and not at the expiration of the term for 
which they were respectively chosen. The construction of this clause of the charter has 
been uniform from the commencement of the government up to the present time. 

The governor, deputy governor, and senators (assistants) of the preceding year, at the 
opening of each annual session of the legislature in May, take their seats, and join the 
house of representatives in grand committee and continue to act until their successors are 
engaged. This is abundantly sufficient to prove that they hold over, as a matter of course 


POTTER VS. ROBBINS. 


189 


for the purpose of organizing the members newly elected to succeed them; and it does not 
seem to be material whether the time required for the performance of this duty be one 
or more days; for the same principle under which they hold over for a single day would 
apply to a longer time if it should be required to complete the organization. But it is 
not necessary to resort to this provision of the charter, or to the practice under it, to estab¬ 
lish the validity of the power to pass the act of January, 1832. The general power given 
in the charter to the legislature, “from time to time to make, ordain, constitute, orrepeal 
such laws, statutes, orders and ordinances, forms and ceremonies of government and magis¬ 
tracy as to them shall seem meet, ’ ’ without limitation, is broad enough to cover the whole 
ground assumed in justification of that act. If Rhode Island had followed the example 
ot her sister States of the Union, and adopted a written constitution, it will not be denied 
that this power to continue inexistence the legislative body until their successors should 
be chosen and engaged might have been given in that instrument. Shall we then deny to 
her the right to effect the same object by law when the people have, by a long and unin¬ 
terrupted acquiescence in that mode of fixing the fundamental principles of the government, 
imparted to such laws the force and efficiency of a constitutional provision emanating from 
a convention chosen for that special purpose? Your committee hold it to be an undeni¬ 
able principle, applicable to all forms of government, that there must exist in the supreme 
legislative power of the State a capacity to preserve itself from annihilation. Waiving, 
therefore, all the considerations arising out of the charter and the immemorial usage of 
the State, which might be safely relied upon to justify the act in question, there are 
other grounds on which the exercise of the power claimed may be sustained and vindi¬ 
cated. The constitutions of the several States are, in the broadest sense, popular, ema¬ 
nating directly from the people, and subject to be modified and amended as the people 
may think proper. The legislative power embraces every object without distinction 
which is not expressly prohibited by a declaration of rights or an article of the Constitu¬ 
tion. The structure of the State governments differs in this important respect from the 
Government of the United States, which is restricted in its sphere of action to the dele¬ 
gated powers and such as are necessary and proper to carry them into effect. On this prin¬ 
ciple, the legislature of Rhode Island, in the absence of a written constitution, could only 
be restrained in the extent of its powers by some negative provisions of the charter or of the 
bill of rights subsequently adopted for the better security of the people in the enjoy¬ 
ment of liberty. In neither of these, nor in any other actor instrument now in force, is 
there to be found any prohibition of the power to continue over an existing legisla¬ 
ture until their successors shall be duly chosen and engaged. The act of January, 1832, 
was deemed to be necessary to preserve the government from dissolution, and to pro¬ 
vide for new and extraordinary elections by the people. It has been sanctioned by the 
people by their action under it, in their primary capacity, and by the constituted au¬ 
thorities of their State in the several departments. All the laws, either of a private or 
general nature, passed by the legislature at their several sessions from the first Wednes¬ 
day of May, 1832, to the close of the session, January, 1833, are now in full force and 
operation. The highest judicial tribunal of the State was composed of judges elected in 
grand committee of the two houses at the August session, 1832, and their commissions 
were issued under the great seal of the State and the signature of the governor, who 
was continued in office by the provisions of the act of January, 1832. 

Your committee could not expect to find evidence more satisfactory of the characterof 
the body by which Asher Robbins, the sitting member, was elected a Senator to Congress 
in January, 1833. 

The Constitution of the United States expressly declares that ‘ ‘ the Senate of the United 
States shall be composed of two Senators from each State chosen by the legislature 
thereof.” But what is the definition of the term legislature? Both its literal and tech¬ 
nical meaning is, “ the power that makes laws.” It is the highest attribute of sover¬ 
eignty, and merges all other powers when it does not transcend the limitations contained 
in the fundamental constitution of the State. When, therefore, we find that during 
the existence of the general assembly, one branch of which was continued and held their 
seats by virtue of the law of January, 1832, this legislature passed fourteen laws of a 
general nature and twenty-eight private acts, many of them acts of incorporation, be¬ 
sides numerous resolutions on various subjects falling within the range of legislative 
power, a schedule of which is hereunto annexed, marked C; and when these laws and 
resolutions remain on the statute-book of Rhode Island in full force and effect, sanctioned 
by judicial decisions, and tacitly submitted to by the people over whom they operate, 
it would seem to your committee a very dangerous assumption of power in one branch 
of Congress, or even in every department of the General Government combined, to inter¬ 
fere with the internal regulations of the State, and to denounce the body by which these 
laws and resolutions were passed as a mere assemblage of citizens without any public 
authority whatever, and not the legislature of the State. Such a power does not belong 
to the Federal Government, and would, if claimed and carried out to its full extent, an- 


190 


SENATE ELECTION CASES. 


nihilate all the reserved rights of the States. It is a general principle of national law 
applicable to all distinct and independent governments, that if there arise any disputes 
in a State on the fundamental laws and public administration, or on the prerogatives of 
the different powers of which it is composed, it is the business of the State alone to judge 
and determine them in conformity to its political constitution. No government has a 
right to intrude into the domestic affairs of another State and attempt to influence its 
deliberations or to control its action. This principle is recognized in the Constitution of 
the United States, by which the respective States united and formed themselves into a 
federal republic. Conceding, as we feel bound to do, to the State of Rhode Island, in 
common with all the other States of the Union, the power to decide for itself all ques¬ 
tions relating to its domestic policy, there would seem to be no ground on which to rest 
a doubt that she has decided, in the most solemn manner, the character and powers of 
the body by which Mr. Robbins was chosen a Senator to Congress. • They passed numer¬ 
ous laws which are in full force. They elected judges of the supreme court of the State, 
who have taken a new engagement or oath of office, and accepted new commissions from 
the governor; entered on their official duties, and condemned to death a citizen found 
guilty of a capital offense against the laws of the State. They received compensation 
out of the treasury of the State for their services, and disbursed the public money neces¬ 
sary for the support of the government. No question has arisen touching or impugn¬ 
ing the validity of any one of these acts because they were passed or performed by an 
incompetent body, with the single exception of the attempt made by a succeeding legisla¬ 
ture to vacate the election of Mr. Robbins. Your committee cannot omit to refer to the 
preamble of the act annulling that election, in which the legislature fully recognize their 
predecessors as “ the general assembly ” of the State. The only ground assumed to jus¬ 
tify the act declaring the election null and void is comprised in a single sentence of the 
preamble, in the following words: 

‘ ‘ Whereas the general assembly which elected Asher Robbins a Senator to the Senate of 
the United States on the 19th day of January last did not comply with the provisions of an 
act entitled ‘An act in addition to an act entitled ‘ ‘ An act regulating the manner of ad¬ 
mitting freemen, and directing the method of electing officers in this State,’ ” by virtue of 
which the members of one branch of said assembly then held their offices, but proceeded 
prematurely therein , and the said election is therefore void, and ought so to be declared 
by this assembly: Therefore, Be it enacted , <fec.” 

Again, the same legislature at their session held in May, 1833, passed an act to repeal 
the law of January, 1832, in the ordinary form, but express no opinion that the law so 
repealed was null and void, and thereby admit its validity up to the date of the repealing 
act. It is worthy of remark, also, that-the same legislature at the session held in Octo¬ 
ber, 1833, passed a special act to carry into effect an act of the legislature passed in 
January, 1833, changing the mode of electing representatives to Congress, and declaring 
that a plurality of votes should in future decide the election in certain cases, contrary to 
the former and long established law of the State, by which a majority of all the votes 
polled at any such election was necessary to a choice in all cases. Thus the power of the 
legislature assembled in January, 1833, to enact this important law is fully acknowledged 
and conceded by their successors, while their power to elect a Senator to Congress is de¬ 
nied and declared null and void. Your committee advert to these acts as conclusive in 
reference to the character of the body of men which elected Mr. Robbins. If they were 
competent to bind the people of the State by general laws, which is nowhere contested, 
they could only exercise such a power in their capacity as the legislature of the State, 
and as such it was their constitutional right and incumbent duty to choose a Senator to 
Congress. There was but one governor and but one senate in the State claiming to be 
a part of the general assembly. If there had existed another body of men, however 
chosen, contending for the offices of the governor and senators in the State, it will not be 
denied that their respective rights might be the subject of inquiry in deciding a contested 
election in the Senate of the United States. But in the absence of any such conflicting 
claims to these offices when only one legislative body was known in the State which 
exercised all the power and performed all the functions of the legislature, and whose acts 
have in every form and by every department of the government been declared valid, it 
would seem to be a palpable invasion of the sovereignty of the State to abrogate its laws 
and overthrow its government by denying that a body capable of exercising the powers of 
legislation existed in the State after the term for which a governor, lieutenant-governor, 
and senators chosen at the annual election in April, 1831, had expired. To annul the 
election of Mr. Robbins would involve all these absurdities, and must be productive of 
confusion and anarchy in the State of which he has been chosed a Senator in Congress. 

The time which the election took place and the manner in which it was conducted 
were iU strict conformity to the laws of Rhode Island. The two houses met in grand 
committee according to law at the session of the general assembly next preceding the 
expiration of the term of service of Asher Robbins, then a Senator in Congress, and elected 


POTTER VS. ROBBINS. 


191 


him for another term of six years, to commence on the 3d day of March, 1833, and then 
the grand committee assembled for this purpose was dissolved. The choice was made by 
the legislature of the State, whose laws are held to be valid and binding throughout the 
State; they command and receive obedience from the people. No objection is made or 
can be made either to the time or manner of the election. The Senator elected has all the 
requisite qualifications demanded by the Constitution, and his commission or credentials 
were in due form delivered to him and presented to the Senate. Your committee hold 
this to be a vested right, the obligation and effect of which no subsequent legislature of 
that State could impair; still less had they authority to proceed to the election of another 
Senator until the seat of the Senator-elect had been vacated by a solemn decision of the 
Senate of the United States. With these views of the subject referred to them, your 
committee recommend the adoption of the following resolution: 

Resolved, That Asher Robbins, being duly and constitutionally chosen a Senator in 
Congress from the State of Rhode Island, is entitled to his seat in the Senate. 


A. 


State of Rhode Island, &c., 

Saturday, January 19, 1833. 

In grand committee, elected Asher Robbins Senator in Congress for six years from the 
fourth of March next. 

Robbins 41: Potter 25: Pearce 12. 

Grand committee rose. 

True copy from senate journal. 

HENRY BOWEN, 

Secretary. 


CREDENTIALS OF THE HON. ASHER ROBBINS. 

By his excellency Lemuel H. Arnold, governor, captain-general, and commander-in-chief of 
the State of Rhode Island and Providence Plantations: 

Be it known that Asher Robbins, of Newport, in the State aforesaid, qualified accord¬ 
ing to the Constitution of the United States for a Senator in the Congress thereof, was by 
the legislature of said State, at the session thereof holden by adjournment at Providence 
on the second Monday of January instant, elected a Senator from said State in the Con¬ 
gress of the United States for six years, commencing on the fourth of March next. 

In testimony whereof I have hereunto set my hand and caused the seal of said State 
to be affixed, this twenty-eighth day of January, in the year of our Lord one thousand 
eight hundred and thirty-three, and of independence the fiftv-seventh. 

[L. s.] LEMUEL H. ARNOLD. 

By his excellency’s command: 

HENRY BOWEN, 

Secretary of State. 


VACATING ACT. 

State of Rhode Island and Providence Plantations, in general assembly, October session, A. D. 

1833. 

Whereas the general assembly which elected Asher Robbins a Senator to the Senate of 
the United States on the nineteenth of January last did not comply with the provisions 
of an act entitled “An act in addition to an act regulating the manner of admitting free¬ 
men and directing the method of electing officers in this State,” by virtue of which the 
members of one branch of said assembly then held their offices, but proceeded prema¬ 
turely therein, and the said election is therefore void, and ought to be so declared by 
this assembly: Therefore, 

Be it enacted by the general assembly, and by the authority thereof it is enacted, That the 
said election be, and the same is hereby, declared to be null and void and of no effect; 
and the office is hereby declared to be vacant. 

True copy of record. Witness: 

HENRY BOWEN, 

Secretary. 



192 SENATE ELECTION CASES. 


By his excellency John Brown Francis , governor, captain-general , and commander An-chief of 
the State of Rhode Island and Providence Plantations: 


Beit known that the name “Henry Bowen” to the aforewritten attestation sub¬ 
scribed is the proper handwriting of Henry Bowen, esquire, who at the time of subscrib¬ 
ing the same was secretary of the State aforesaid, duly elected and qualified according to 
law: Wherefore, unto his said attestation full faith and credit are to be rendered. 

In testimony whereof I have hereunto set my hand and caused the seal of said State 
to be affixed at Providence this fifteenth day of November, in the year of our Lord one 
thousand eight hundred and thirty-three, and of independence the fifty-eighth. 

[l. s.] JOHN BROWN FRANCIS. 


By his excellency’s command: 


HENRY BOWEN, 

Secretary. 


B. 


CREDENTIALS OF ELISHA R. POTTER. 

By his excellency John Brown Francis, governor, captain-general, and commander-in-chief oj 
the State of Rhode Island and Providence Plantations: 

Be it known that Elisha R. Potter, of South Kingstown, in the State aforesaid, qualified 
according to the Constitution of the United States for a Senator in the Congress thereof, 
was by the legislature of said State, at the session thereof holden at South Kingstown 
on the last Monday in October last, elected a Senator from said State in the Congress of 
the United States for six years, commencing the fourth day of March last. 

In testimony whereof I have hereunto set my hand and caused the seal of said State 
to be affixed at Providence the fifth day of November, in the year of our Lord one thou¬ 
sand eight hundred and thirty-three, and of independence the fifty-eighth. 

[L. s.] JOHN BROWN FRANCIS. 


By his excellency’s command: 


HENRY BOWEN, 

Secretary. 


C. 

Public acts passed by the general assembly of Rhode Island and Providence Plantations from 
May , 1832, to the close of the session, January, 1833. 

1. An act relating to the Burrillville Bank. 

2. An act authorizing the city council of the city of Providence to appoint a larger 
number of members of Engine Company No. 5. 

3. An act relating to the overseers of the poor and to the asylum, in the town of Ports¬ 
mouth 

4. An act in relation to the returns of certain justices of the peace. 

5. An act in further amendment of an act to establish public schools. 

6. An act in addition to the acts in relation to quarantine and to the introduction and 
spreading of contagious and infectious sickness in this State. 

7. An act authorizing certain military officers to be engaged in their commissions. 

8. An act in addition to an act entitled an act appointing the several town councils in 
this State boards of health ex officio. 

9. An act (November, 1832) in amendment of an act entitled an act relative to the 
election of Senators and Representatives to represent this State in Congress, and of elect¬ 
ors for the elections of a President and Vice-President of the United States. 

10. An act authorizing certain military officers to take their engagements or their 
commissions. 

11. An act to prevent hogs going at large in Washington village, in Coventry. 

12. An act in relation to extrajudicial oaths. 

13. An act (January, 1833) in amendment of an act entitled an act relative to the 
election of Senators and Representatives to represent this State in Congress, and of elect¬ 
ors for the election of a President and Vice-President of the United States. 

14 An act regulating criminal process in certain cases. 


POTTER VS. ROBBINS. 


193 


Private acts passed by the general assembly of the State of Rhode Island and Providence Planta¬ 
tions from May , 1832, to the close of the session , January, 1833. 

1. An act to incorporate certain persons as a society by the name of St. James Church, 
at Woonsocket Falls, in Smithfield. 

2. An act to legitimate Maria, the daughter of Thomas A. and Mary Ann Potter. 

3. An act to authorize Henry Yates and Archibald McIntyre to put forth a lottery 
for the benefit of public schools. 

4. An act to incorporate the Greenville Fire Engine Company. 

5. An act to revive the charters of certain military companies. 

6. An act to incorporate the Providence Steamboat Company. 

7. An act to incorporate the Phcenix Iron Foundry. 

8. An act to revive the charters of certain military companies. 

9. An act to amend the charter of the Providence Marine Corps of Artillery. 

10. An act in amendment of an act incorporating a society by the name of the Paw- 
catuck Academy Company. 

11. An act to incorporate the New York, Providence and Boston Railroad Company. 

12. An act to incorporate the Rhode Island and Connecticut Railroad Company. 

13. An act to authorize the corporation of St. John’s Church, in Providence, to tax 
the pews in said church. 

14. An act in addition to an act entitled an act to incorporate certain persons by the 
name of the “ First Universalist Society in the town of Providence.” 

15. An act to authorize John A. Grace to hold, convey, and transmit real estate in this 
State. 

16. An act to incorporate the Albion Village Fire Engine Company. 

17. An act to incorporate the Commercial Insurance Company in Newport. 

18. An act to authorize John Chatburn to hold, convey, and transmit real estate. 

19. An act to incorporate the Warren Rhode Island Seaman Friends’ Society. 

20. An act in amendment of an act entitled an act to incorporate the Rhode Island 
and Connecticut Turnpike Corporation. 

21. An act to authorize John Paine and Daniel Burgess to put forth a lottery for the 
benefit of public schools. 

22. An act to incorporate certain persons by the name of the First General Baptist 
Church in Warwick. 

23. An act to revive an act in amendment of an act to incorporate the Providence and 
Boston Railroad Company, and for other purposes, and in amendment thereof, and in 
addition thereto. 

24. An act to incorporate certain persons by the name of the Woonsocket Falls Baptist 
Society. 

25. An act to incorporate the Gloucester and Burrillville Safe-guards. 

26. An act to incorporate the stockholders of the West Greenwich Farmers’ Bank, in 
the town of West Greenwich. 

27. An act to incorporate the stockholders of the Commercial Bank, in the city of 
Providence. 

28. An act to incorporate the stockholders of the Citizens’ Union Bank. 

In addition to the above the same general assembly, from May, 1832, to January, 1833, 
inclusive, passed— 

Thirty-one votes or resolutions liberating the persons or commuting the punishments 
of convicts; 

Thirty-seven votes or resolutions authorizing the sales of real estates; 

Three resolutions authorizing persons to apply to the supreme court for decrees of divorce; 

Six votes or resolutions releasing the persons of insolvent debtors on giving bond, &c.; 

A resolution for the payment of the salaries of the governor and lieutenant-governor 
of the preceding year; 

A resolution for the payment of the State map; 

Resolutions for the payment of a great variety of accounts; 

Several votes authorizing new trials; 

And, finally, elected all the officers, civil and military, of the State, who severally 
took their commissions, and acted under them during the whole of that year. 


VIEWS OF THE MINORITY. 

In the Senate of the United States. 

April 4, 1834. —Read, and ordered to be printed. 

The minority of the select committee on the contested seat occupied by the Hon. 
Asher Robbins report: 

The undersigned, a member of the select committee of the Senate to which was re¬ 
ferred the subject of a contested seat in the Senate from the State of Rhode Island, the 

S, Doc. 11-13 




194 


SENATE ELECTION CASES. 


Hon. Asher Robbins being the sitting member and the Hon. Elisha R. Potter claiming 
the seat occupied by the said Robbins, entertaining opinions and views different from 
those expressed by the majority of the said committee in their report submitted to the 
Senate on the 4th day of March instant, respectfully submits the following report: 

The course adopted by the committee to settle the facts upon which their opinions 
were to be formed was to call upon the parties to the controversy for statements of the 
facts which they wished to prove, or which each wished admitted by his opponent, as 
being, in their estimation, material to their respective claims. This call was answered 
by Mr. Potter by the statement signed by him, and dated 11th December last, which is 
hereto annexed, marked D. Mr. Robbins replied to this statement of Mr. Pottar by the 
paper hereto annexed, marked E. This reply of Mr. Robbins was submitted to Mr. Pot¬ 
ter, and drew from him the additional statement signed by him, and dated 31st Decem¬ 
ber last, which is hereto annexed, marked F. Here the statements of fact closed, and 
Mr. Potter was called upon for such arguments as he might choose to submit to the 
committee, when he returned the paper annexed, signed by him, dated 21st January 
last, and hereto annexed, marked G. To this argument Mr. Robbins replied by the 
paper signed by him, dated 24th January last, and hereto annexed, marked H. Mr. 
Potter rejoined by the paper signed by him, dated 3d February last, and hereto an¬ 
nexed, marked I. In this state the case was submitted to the committee, each party 
having accompanied their statements with such proofs from the journals of the legisla¬ 
ture of their State and other public records as they considered required. Most of the 
points established by the proofs submitted are fully admitted and agreed upon by the 
parties in their statements of fact, and therefore such of them only will be referred to 
and annexed as may be found material to establish facts not so admitted. The state¬ 
ments and arguments of the parties are annexed, because the undersigned considers the 
question one of the highest importance, and that it is proper the Senate should see fully 
the facts which the immediate parties to the controversy have considered in any way 
material, the arguments by which they have sought to direct the judgments of the mem¬ 
bers of the committee, and the conclusions they have formed upon the points raised. 

The majority of the committee, in the view they have taken of the subject, have not 
considered it important to print these statements, or but a very small portion of the 
proofs submitted, but as the course of reflection pursued by the undersigned and the 
opinion he has formed has been governed by the facts disclosed in these papers, and as 
the parties have so intermixed fact and argument in all their statements that the one 
cannot well be separated from the other, he feels that he may not be borne out in his 
facts without annexing to this report these statements entire, while he is sensible that 
the arguments he shall offer will be mostly repetitions of those which the parties have 
presented to him. That both of the parties have assumed positions which are untenable, 
as well as positions which are wholly irrelevant, is clear to his mind, as he does not 
doubt it will be to the judgment of the Senate; but he still thinks they have not omitted 
the true and material points of the controversy, and that their suggestions may do that 
justice to the subject which it will not receive from any effort of his. The undersigned 
believes that as to most of the facts assumed by the majority of the committee there 
will be no dispute; but as there are facts in the case which he considers material, and 
to which the majority of the committee do not refer in their report, a reference to the 
statements of the parties and to some of the proofs will be necessary to authorize him 
to use those facts to sustain his conclusions. And if, under this impression, he should 
connect with this report any portion of the documents before the committee, which upon 
examination may not appear to have been necessarily so connected, he feels sure that 
the Senate will find his excuse in the conviction he is under that the novelty and impor¬ 
tance of the question demands a full exhibition of the facts and arguments which are 
material and relevant, and that the safe course is to withhold nothing which may be 
important, though that course may lead to the examination of much which is unimpor¬ 
tant. 

Having reference to these statements, and to such other documents as shall be here¬ 
after referred to, the undersigned makes the following relation of facts upon which 
he supposes the decision of the question submitted to the committee must mainly rest. 

Charles II, King of England, in the year 1663, granted to his colony in America 
known as the colony of Rhode Island and the Providence Plantations (now the State 
of Rhode Island) a charter for its civil government, which was submitted to the people 
of the colony and adopted by them, and thus became the fundamental law of the colonial 
government. (See the paper annexed, duly certified, and marked K.) 

The said charter provided, among other things, that “for the better ordering and 
managing of the affairs and business of the said company and their successors there 
shall be one governor, one deputy governor, and ten assistants, to be from time to time 
constituted, elected, and chosen, out of the freemen of the said company for the time be¬ 
ing, in such manner and form as is hereafter in these presents expressed.” (See the 
Charter, page 6 of the Laws of Rhode Island, Digest of 1822.) 


POTTER VS. ROBBINS. 


195 


The charter appointed the first governor, deputy governor, and assistants “to con¬ 
tinue in the said several offices, respectively, until the first Wednesday which shall be in 
the month of May now next coming. (See same page as above.) 

The charter further provided ‘ ‘ that for ever hereafter, twice in every year, that is to 
say, on every first Wednesday in the month of May and on every last Wednesday in Octo¬ 
ber, or oftener in case it shall be requisite, the assistants and such of the freemen of the 
said company, not exceeding six persons for Newport, four persons for each of the respect¬ 
ive towns of Providence, Portsmouth, and Warwick, and two persons for each other 
place, town, or city, who shall be, from time to time, thereunto elected or deputed by the 
major part of the freemen of the respective towns or places for which they shall be so 
elected or deputed, shall have a general meeting or assembly, then and there to consult, 
advise, and determine in and about the affairs and business of the said company and 
plantations.” (See Charter, page 7, Digest of 1822.) 

The charter further provided ‘ ‘ that the governor, or, in his absence, or by his per¬ 
mission, the deputy governor of the said company for the time being, the assistants, 
and such of the freemen of the said company as shall be so as aforesaid elected or de¬ 
puted, or so many of them as shall be present at such meeting or assembly as aforesaid, 
shall be called the general assembly, and that they, or the greatest part of them then 
present, whereof the governor or deputy governor and six of the assistants, at least to be 
seven, shall have, and have hereby, given and granted unto them full power and author¬ 
ity,” &c.; thus constituting the legislative body for the colony. (See Charter, same 
page as last above.) 

The charter further provided for the election, time of election, and term of office of 
the governor, deputy governor, and assistants, in the following words, to wit: “And fur¬ 
ther, our will and pleasure is, and we do hereby, for us, our heirs and successors, estab¬ 
lish and ordain, that yearly, once in the year, for ever hereafter, namely, the aforesaid 
Wednesday in May, and at the town of Newport, or elsewhere if urgent occasion do 
require, the governor, deputy governor, and assistants of the said company, and other 
officers of the said company, or such of them as the general assembly shall think fit, 
shall be, in the said general court or assembly to be held from that day and time newly 
chosen for the year ensuing by such greater part of the said company, for the time being, 
as shall be then and there present.” (See Charter, page 9, Digest of 1822.) 

No charter was granted to this colony by the crown of Great Britain subsequent to 
that of Charles II above mentioned and previous to the American Revolution, but the 
colony remained subject to the provisions of that charter so long, as it remained a British 
colony; and the people of the State of Rhode Island, since the Revolution, have formed 
no constitution of government, but have continued the system of government existing 
with them at the time of that event, having only changed their allegiance. 

From the time of the adoption of the charter in 1663-’64 by the people of the col¬ 
ony up to the year 1831 no change had taken place in the qualifications for the offices 
of governor, deputy governor, or assistants, or in the terms of their respective offices, 
but all those officers were elected annually during all that period. The official name of 
the deputy governor had been changed in the laws to that of lieutenant-governor, the 
official name of assistants to that of senators, and the official name of the deputies to that 
of representatives; but these changes of official names or designations were not accom¬ 
panied by any changes of official powers or duties. 

The charter contemplated that all the freemen should assemble at Newport, “or else¬ 
where if urgent occasion do require,” and should vote at the same poll for their gov¬ 
ernor, lieutenant-governor, and senators. This mode of voting was partially changed 
soon after the granting of the charter, and a privilege was given to each freeman to at¬ 
tend at Newport and vote in person, or tosend his vote by a proxy. The increase of popu¬ 
lation in the colony and its diffusion over a large extent of territory in the course of time 
induced the legislature to extend this system of voting by proxy, and to provide for the 
holding of a poll in each town on the day of an annual election, giving to the freemen 
of the towns the right to prepare a written or printed ballot containing the names of the 
persons for whom each should choose to vote for governor, lieutenant-governor, and sen¬ 
ators, and all such other general officers as were to be voted for, or as the voter should choose 
to vote for, with proper designations as to the office desi gued for each person voted for; which 
ballot, so prepared, with the full name of the voter written upon the back thereof, he was at 
liberty to deposit in the ballot-box of his town. Accurate poll-lists of the persons voting 
were to be kept, and after the close of the poll the ballots so deposited in the box and the in¬ 
dorsement of the name of the voter on the back thereof were to be compared with the poll- 
list, and when found to agree the original poll-list was to be deposited with the town clerk of 
the town for the inspection of the freemen thereof, and a copy of the same poll-list, together 
with the ballots so taken, carefully sealed up by the persons having charge of the poll, 
was to be delivered to the member of the house of representatives elected for the town, 
or to a senator, to be by him taken to Newport, and there delivered in the general assem- 


196 


SENATE ELECTION CASES. 


bly on the day fixed by the charter for the election at Newport of the governor, lieuten¬ 
ant-governor, and senators, and other general officers. On that day the house of repi e- 
sentatives newly elected for the half year then next following take the oath of office, 
and then proceed to open and count these votes so sent to them for the choice of a go\ - 
ernor, lieutenant-governor, and senators, and such other general officers as are to be 
elected, to compare the votes with the poll-lists also sent and to pronounce the result; 
and the governor, lieutenant-governor, and senators elected, if any such officers are elected 
by a majority of all the votes thus given, the result being pronounced, take the oath of 
office, and the legislature is organized. This system of voting was substantially adopted 
by the colony as early as the year 1760, and has ever since been and still is the manner 
in which the freemen of Rhode Island vote for their governor, lieutenant-governor, 
senators, and other general officers. (See the statements of the parties annexed, and 
particularly the act of August, 1760, marked L.) 

The charter seems also to have contemplated that the whole legislature should have 
formed one body or aggregate mass; but soon after the granting of the charter the prac¬ 
tice was adopted of forming one house of the governor, lieutenant-governor, and assist¬ 
ants, or senators, called the senate, and another house of the representatives elected by 
the towns, called the house of representatives, and for the purposes of legislation of 
having the two houses set apart and act separately, each exercising equal legislative 
powers, and of consequence each having a negative upon the action of the other. This 
practice is still continued in the organization of the legislature of Rhode Island for 
legislative purposes, though when acting executively, or acting in the election of a Senator 
to represent the State in the Senate of the United States, the two houses still act together 
as one body, and in that State are termed by the laws and practice of the Government 
“The Grand Committee.” (See Laws of the State and Journals of the Legislature.) 

The time fixed by the charter for the annual elections of governor, lieutenant-governor, 
and senators is the first Wednesday in May; and to give time for the freemen to hold 
the polls in their respective towns, and to have their proxies delivered at Newport by the 
day required, the law prescribes the third Wednesday in April, in each year, for hold¬ 
ing the town meetings, and for receiving and sealing up the proxies in the manner before 
related. (See page 94 of the Digest of 1822.) 

Pursuant to these regulations an annual election for governor, lieutenant-governor, 
and senators was held in the State of Rhode Island on the third Wednesday of April, 
1831; and upon counting the proxies returned to Newport on the first Wednesday in 
May thereafter, the day fixed by the charter, there appeared to have been a governor, lieu¬ 
tenant-governor, and eight of the ten senators duly elected. These, constituting more 
than a quorum of the senate, were duly sworn, and, together with the house of represent¬ 
atives, composed the legislature of the State; but no attempt was made to fill the two 
vacancies in the senate. 

No question has been made before the committee, or is understood to exist, as to the 
proper organization of this legislature, or as to its powers as the legislature of the State— 
the senate for one year from the first Wednesday in May, 1831, and the house of repre¬ 
sentatives from the same first Wednesday in May until the last Wednesday in October 
of the same year. 

A new house of representatives was duly elected, and qualified on the last Wednesday 
in October, 1831, which, together with the senate before mentioned, again constituted a 
regularly organized legislature of the State, with all the powers possessed by any legis¬ 
lature of Rhode Island. 

This legislature, in January, 1832, being regularly convened for the transaction of busi¬ 
ness, passed an act providing, among other things, that, in case of a failure, at any an¬ 
nual election by the people, of the election of a governor, lieutenant-governor, or a quorum 
of the senate, such of those officers as had been elected previously, and who should then 
be the incumbents of the offices, and in whose places no others should be elected, should 
continue in the respective offices, and to possess the powers and discharge the duties 
thereof until others should be elected and duly qualified to take their places. (See a 
copy of this act annexed, marked M.) 

The annual election pursuant to the law, for the election of a governor, lieutenant-gov¬ 
ernor, and senators was again held in the towns on the third Wednesday in April, 1832, 
and the proxies of the freemen of the State taken and sealed up in the usual form; and on 
the first Wednesday in May thereafter those proxies were opened and counted at New¬ 
port; when it was found that no election of governor, lieutenant-governor, or any sena¬ 
tor had been made, no person having received the majority of all the votes given for any 
one of those offices. (See the statement of the parties annexed.) 

The governor, lieutenant-governor, and eight senators elected in 1831, and whose of¬ 
ficial terms, according to all previous practice of the government, expired on that day, 
continued to act as the governor, lieutenant-governor, and senators of the State until 
the first Wednesday in May, 1833, just two years from the time of their last election and 


POTTER VS. ROBBINS. 


197 


qualification for their respective offices, there having been, in the mean time, between 
the first Wednesday in May, 1832, and the first Wednesday in May. 1833, five several 
elections for the choice of persons to fill these offices, the first four of which were special, 
and held in obedience to a provision contained in the act of January, 1832, before re¬ 
ferred to and hereto annexed, and were all unsuccessful; and the fifth was the regular an¬ 
nual election for 1833, held on the third Wednesday in April in that year, in obedience 
to the general election law of the State, when an election was made of a governor, lieu¬ 
tenant-governor, and eight senators, who took t he oaths of office and entered upon the du¬ 
ties on the first Wednesday in May, 1833. (See the statements of the parties annexed.) 

During the whole of this period, from the first Wednesday in May, 1832, to the first 
"Wednesday in May, 1833, the house of representatives of the legislature of the State of 
Rhode Island was in regular organization, and composed of members regularly elected at 
the ordinary times and in the ordinary manner of electing members to that branch of the 
legislature of the State, according to the established laws. (See the statements of the 
parties annexed.) 

On the first Wednesday in May, 1832, the Hon. Asher Robbins was a Senator in the 
Congress of the United States from the State of Rhode Island, and his official term was 
to expire on the 3d day of March, 1833; and, by a law of the State, its Senators in the 
Congress of the United States are to “be appointed at the session of the general assem¬ 
bly next preceding the expiration ofthe term of service of the Senator for the time being, 
and not before.” (See Digest of 1822, page 107, section 6.) 

In January, 1833, the body claiming to be the senate of the State of Rhode Island, and 
acting as such, consisting of the governor, lieutenant-governor, and eight senators, elected 
on the third Wednesday in April, 1831, and who took their oaths of office and entered 
upon their official duties on the first Wednesday of May, 1831, and the house of repre¬ 
sentatives of the State, regularly elected and qualified, being assembled, and acting as 
the legislature of the State, met in grand committee, and voted for a Senator to repre¬ 
sent the State of Rhode Island in the Senat e of the Congress of the United States for the 
term of six years from the 4th day of March then next following, when the term of Mr. 
Robbins would have expired. Upon counting the votes so given by the persons assum¬ 
ing to be the governor, lieutenant-governor, and senators of the State, and by the 
members of the house of representatives of the State present and voting, it was found 
that Asher Robbins had received a majority of the whole number of votes given; where¬ 
upon he was declared to be elected. (See the statements of the parties annexed.) 

Pursuant to this proceeding, the person then assuming to be the governor of the State 
of Rhode Island, and acting as such, did, on the 28th day of January then instant, un¬ 
der his hand and the seal of the State, execute and deliver to Mr. Robbins a commission 
in the ordinary form, according to the laws and practice of the government of the State, 
for the office of Senator to represent the State in the Senate of the United States for the 
term of six years, to commence on the 4th day of March thereafter. 

The validity of this election of Mr. Robbins to this office is contested upon the ground 
that the persons acting as the governor, lieutenant-governor, and senators of the State, 
and, as such, voting fora Senator at the time Mr. Robbins’s election was made, were elected 
on the first Wednesday in May, 1831, “for the year ensuing,” and for no longer term; 
that, upon counting the proxies, and pronouncing the result of the election for governor, 
lieutenant-governor, and senators, on the first Wednesday in May, 1832, these officers be¬ 
came functus officii , so far as related to their election in 1831, whatever that result might 
be; and that the legislature of the State had not the power to continue their official 
terms, or official existence, beyond the limits fixed in the charter, of “the year ensuing” 
their election by the people; and the act of January, 1832, so far as it attempts to perpet¬ 
uate these officers, without a re-election by the freemen of the State, is pronounced to be 
contrary to the provisions of the charter, and therefore void. 

Upon the other side, it is contended, first, that by the charter itself the offices, pow¬ 
ers, and duties of these officers do not cease and determine until others are elected in 
their places; and, second, that the legislature of Rhode Island have, with the acquiescence 
of the people of that State, passed many laws in contravention of the charter; that the 
practice of the government, as shown by its legislation, proves that the charter has not 
been held to be the fundamental law of the State, except as to certain specific grants; 
and that the act of January, 1832, does not conflict with those grants, and is therefore 
a valid act in all its parts. 

In view of this part of the controversy, the discussion of the following questions ap¬ 
pears to be called for: 

First. Is the charter before mentioned, granted by Charles II of England to the colony 
of Rhode Island and the Providence Plantations, to be now considered to any, and, if to 
any, to what extent as the constitution of government of the State of Rhode Island, and 
as a constitution binding upon the legislature of that State? 

Second. Does that charter fix and prescribe the term of office of the governor, lieu¬ 
tenant-governor, and senators of that State ? 


198 


SENATE ELECTION CASES. 


Third. Can the legislature of that State, consistently with the powers granted to that 
body by the charter, extend the official terms ol those officers beyond the limit fixed by 
the charter ? 

Fourth. Can the Senate of the United States, when these questions are presented to it 
by the action of the legislature of the State of Rhode Island, in the purported election 
of a member for this body, look into, and pronounce its opinion upon them, by way of 
inquiry into the rights of a sitting member to the seat be occupies? 

That the charter of 1663 is, to some extent, to be considered as the fundamental law 
of the State of Rhode Island, and, as such, binding upon, and restrictive of, the legisla¬ 
tive power of that State, is admitted by all, and has not been made a question before 
the committee. The extent to which it is to be so considered is a point upon which not 
only the parties before the committee, but the members of the committee themselves, 
disagree. This point, therefore, must be settled by such references to the history of the 
legislation and practices of the government and people of the State as have been laid 
before the committee, and by the inferences which that history shall be found to justify. 
The undersigned will, in the first instance, offer to the Senate some of the evidences 
which have operated most strongly upon his mind to show the tenacity with which the 
people, the government, and the legislature of that State have adhered to the charter 
in its inconvenient and unjust requirements; going most clearly, in his judgment, to 
show the strong, binding force which has been allowed to it up to this very day; and, 
having done this, he will review, as concisely as the importance of the subject will allow, 
the instances cited by the majority of the committee to show that the legislature have 
not regarded the charter as binding upon, or restrictive of, their powers when the public 
interests or the public convenience conflicted with its provisions. 

First. The charter fixes the standard of representation for the towns of the State in 
the popular branch of the legislature by giving to the town of Newport six represent¬ 
atives, to the towns of Providence, Portsmouth, and Warwick four representatives each; 
and to each other ‘ ‘ place, town, or city ’ ’ in the State, two representatives, wholly with¬ 
out regard to population, property, or any other basis upon which representation is 
usually settled. By the census taken in 1830, in obedience to an act of Congress, the 
town of Newport, with six representatives, had a population of 8,010 souls, while the 
town of Providence, with four representatives, had a population of 16,833 souls; thus 
showing Providence with more than do Able the population of Newport, and with but 
two-thirds of its representation in the popular branch of the legislature. The town of 
Portsmouth has a population of 1,127 souls, a little more than one-sixteenth of the popu¬ 
lation of Providence, and a representation exactly equal to it. The town of Smithfield 
has a populatian of 6,857 souls, and two representatives, and the town of Jamestown 
has a population of 415 souls, and two representatives—equal to the representation of 
Smithfield. The whole county of Newport has a population of 16,535 souls, and twenty 
representatives, while the single town of Providence, with but four representatives, has 
a population of 16,833 souls. These are some of the instances of the greatest disparity, 
but the statement annexed, marked N, will show the names and population and repre¬ 
sentation of all the towns in the State, and, in a condensed form, the population and 
representation of each county in the State. Still, the legislature of Rhode Island have 
never attempted to equalize the representation of the State, because the charter has been 
held to be the fundamental law upon the subject, and to restrain its powers in this par¬ 
ticular. 

Second. Elections of members to the popular branch of the legislature of the State 
have continued to be made semi-annually, because such was the requirement of the 
charter; and to comply with this provision of that instrument, and with the custom of 
the government under it, the legislature is regularly convened four times in each year. 
Still no attempt has been made by the legislature, though the State is small and the 
business of legislation for it not extensive, to alter the forms of the government in this 
respect. The charter has been held to be paramount to its authority, and to control its 
action, and the action of the people of the State, in this particular. 

Third. A majority of all the votes given at any election by the people has been held 
to be required to elect any officer of the State government, because the charter requires 
such majority to constitute an election; and notwithstanding that the present contro¬ 
versy has grown wholly out of that requirement, the legislature of the State has never 
assumed that it had the power to dispense with the rule, and to authorize the election 
of those officers by a less number of votes than a majority of all the votes given for the 
office to be filled. Here again the charter has been, and still is, to be held fundamental 
law. 

Fourth. From the granting of the charter in 1663 to the present time, with the single 
exception now in dispute, the governor, lieutenant-governor, and senators of the State 
have been elected annually, and have entered upon the duties of their respective offices 
on the first Wednesday in May in each year, the time prescribed by the charter; have 


POTTER VS. ROBBINS. 


199 

held their offices and discharged the duties thereof for one year, and no longer, without 
a re-election. In repeated instances vancancies have existed in the Senate in conse¬ 
quence of a failure to elect, by a majority of all the votes given, persons to fill all the 
places in that body; and those places have, without an exception, until the first Wed¬ 
nesday in May, 1832, remained vacant for the year; nor was the idea ever suggested that 
the incumbents of the former year could continue to hold them, or that they could be 
otherwise filled than by an election by the freemen of the State. Until the act of Jan¬ 
uary, 1832, the charter had ever been considered the fundamental law of the State upon 
this subject, and paramount to any authority existing in the legislature. 

Fifth. The mode of conducting elections of the general officers of the State, and the 
plan of voting by proxy, before detailed, is considered by the undersigned as an evidence of 
the strongest character to prove the rigidity with which the people and the legislature of 
Rhode Island have adhered to the charter to the utmost extentof the spirit of even its mi¬ 
nute provisions. The charter was granted when the colony was small, and the extent of 
territory inhabited was very limited. Indeed, it is Mr to presume that Newport, Provi¬ 
dence, Portsmouth, and Warwick were all the towns then containing a population of 
freemen, as those are the only towns named in the distribution of the representation of 
the colony. The population of the colony, too, must have been very small, and there¬ 
fore the charter was framed under the contemplation that the annual elections could be 
conveniently held at one point, and that all the freemen could conveniently assemble 
and vote at the same poll. The practice of a very few years exhibited the inconvenience 
of this arrangement, and a law was passed presenting to the choice of every voter the al¬ 
ternative of attending the poll at Newport in person or of sending his written vote in 
the form and manner prescribed by the law. This mode of voting was continued with¬ 
out material alteration for nearly a century, and until the year 1760. Then the system 
was introduced of holding a poll in each town and of requiring the freemen to deposit 
their proxies there for the general officers, that being, for all purposes material to this argu¬ 
ment, the same system which now prevails, and which has prevailed from the year 1760 to 
the present time. It is true that the votes are deposited in a ballot-box in each town, 
but it is also true that every vote is indorsed by the full name of the freeman who gives 
it, written upon the back of the ballot; that all the ballots, together with accurate poll- 
lists of the persons voting, are carefully sealed up at the closing of these polls; that they 
are in that state put into the hands of a member of the legislature, whose duty it is to 
deliver them, unopened, in the general assembly at Newport, at the time and place when 
and where, by the charter, the election of the officers voted for is required to be made; 
that the votes are there opened and counted, and the result ascertained and pronounced 
in all respects in strict conformity with the requirements of the charter, except that each 
freeman, instead of attending in person, has sent his written ballot indorsed with his 
full name, and expressing his free choice. This, in the common parlance of the people 
of the State, is the election; and the undersigned cannot but consider it a rigid regard 
to, and strict fulfillment of, the provisions of the charter in their spirit and beneficial 
meaning, fu rnishin g the highest evidence of the great extent to which the people and the 
legislature of that State have observed that instrument as their fundamental law and 
constitution of government. 

Sixth. At the January session of the legislature of Rhode Island, in the year 1824. a 
law was passed to provide for calling a convention to form a constitution of government 
for the State. The members of the convention were chosen at the annual election on 
the third Wednesday of April in that year, and assembled at Newport in June follow¬ 
ing, and entered upon the discharge of the duties assigned to them. They formed a consti¬ 
tution, which was submitted to the people of the State for their adoption or rejection at 
town meetings holden on the second Monday of October, 1824. The constitution so formed 
differed widely, in many respects, from the provisions of the charter, and it was rejected 
by the people of the State by a vote of only 1,668 for to 3,206 against it, thus command¬ 
ing the approbation of but a trifle more than one-third of the persons voting. It is, from 
the nature of the case, impossible to say upon what particular grounds this strong rejec¬ 
tion was made; but it cannot be improper to remark that the constitution so rejected 
contained, among other provisions varying from those of the charter, the following: 

“The supreme executive power of this State shall be vested in a governor, who shall 
be chosen by the electors properly qualified, and shall hold his office for the term of one 
year from the first Tuesday in May next succeeding his election, and until his successor 
be duly qualified. But if no person shall have a majority of votes, the senate and house of repre¬ 
sentatives, in joint committee, shall choose a governor, by ballot, from the two persons having the 
highest number of votes. ’ ’ 

Here is a departure from the provisions of the charter in two important particulars: 
First, that the governor in office shall continue to hold “ until his successor be duly qual¬ 
ified;” and, second, that in case of a failure by the people to elect by a majority of all the 
votes given, the legislature might fill the vacancy. It is freely conceded that the extent 


200 


SENATE ELECTION CASES. 


to which this provision influenced the decision of the people can never toe known, and 
must ever remain mere matter of opinion; but it is believed that the decisive rejection 
of this constitution may be properly assumed as a strong evidence of their unyielding 
attachment to the charter with all its imperfections; and that it would be doing great 
violence and injustice to the patriotism and intelligence of the people of Rhode Island 
to suppose that this action on their part took place while they believed that they were 
without a written constitution of government and wholly dependent for their funda¬ 
mental law upon the will and pleasure of their legislative bodies. 

Seventh. The result of the election in the State of Rhode Island in 1833, after one 
year of experience under the act of January, 1832, the repeal of that law by the new 
legislature as one of its first acts; the election again of a new house of representatives in 
August, 1833; the passage of the act declaring Mr. Robbins’s appointment void, in Oc¬ 
tober, 1833, and the appointment of Mr. Potter to represent the State in the Senate of 
the United States are considered strong evidences that the act of January, 1832, was 
held by the people of the State to be a violation of the charter, an usurpation of power 
on the part of the legislature which passed it, and calculated to retain in office men whom 
they had not elected and did not approve. 

Such are the evidences offered to show that the charter has been and is considered by 
the legislature, the government, and the people of Rhode Island as their fundamental 
law and constitution of government, to some extent not only, but to the full extent of 
all its material provisions, except so far as those provisions have been rendered obsolete 
by the American Revolution and the consequent change of that people from the condi¬ 
tion'of colonists to that of citizens of a free State. 

The majority of the committee entertain a different view upon this subject from that 
here expressed, and the importance of the question, as well as a proper respect for the 
opinionsof his colleagues upon the committee who differ with him, make it the duty of 
the undersigned to notice the grounds upon which they rest the conclusion to which 
they have come. The majority of the committee seem to consider that the power con¬ 
ferred by the charter upon the legislature of the colony ‘ ‘ from time to time to make, 
ordain, constitute, or repeal such laws, statutes, orders, and ordinances, forms, and 
ceremonies of government and magistracy as to them shall seem meet for the good and 
welfare of the said company, and for the government and ordering of the lands and 
hereditaments hereinafter mentioned to be granted, and of the people that do, or at any 
time hereafter shall, inhabit or be within the same, so as such laws, ordinances, and con¬ 
stitutions, so made, be not contrary and repugnant unto, but, as near as may be, agree¬ 
able to the laws of this our realm of England, considering the nature and constitution 
of the place and people there,” grants a pow T er to that body to make laws at variance 
from, and in contravention of, the provisions of the charter, if such laws “to them shall 
seem meet for the good and welfare of the said company. ’ ’ This power, they say, ‘* has been 
exercised from time to time before and since the Revolution, when Rhode Island became 
one of the States of the Union. These modifications have materially changed the pro¬ 
visions of the charter, and established fundamental principles of government inconsist¬ 
ent with those recognized and ordained by the charter, which now remains only the 
nominal foundation of the legislation of the State.” 

The undersigned is unable to assent to the construction which the majority of the com¬ 
mittee seem thus to have put upon the clause of the charter above given. He supposes 
it to be an invariable rule for the construction of every deed or other instrument, and of 
every law or ordinance, that each part shall be so construed as to make it, to the great¬ 
est possible extent, harmonize with, and not be destructive of, any other part or portion 
of the same deed, instrument, law, or ordinance. The charter of Charles II to the 
colony of Rhode Island was designed as a system of civil government for the colony; it 
was a grant from the sovereign to a portion of his subjects for that purpose; it con¬ 
stituted certain offices, and prescribed the powers and the duties in a general manner 
which should pertain to them. These offices, it will be seen by an examination of the 
charter, were to constitute the legislature of the colony, and the officers who should fill 
them were to be the legislators of the colony. To this legislature very broad powers are 
granted by the charter, and the clause now under consideration is one among the clauses 
enumerating those powers. Other clauses give other powers, such as to elect and con¬ 
stitute “offices and officers,” to grant commissions, “to appoint,order,and direct, erect 
and settle such places and courts of jurisdiction for the hearing and determining of all 
actions, cases, matters, and things happening within the said colony and plantation, and 
which shall be in dispute and depending there;” “to distinguish and set forth the sev¬ 
eral names and titles, duties, powers, and limits, of each court, office, and officer, superior 
and inferior; ” to contrive and appoint forms of oaths and attestations; “ to regulate and 
order the way and manner of all elections to offices and places of trust;” to limit and 
distinguish the numbers and bounds of all places, towns, and cities, which may have “the 
power of electing and sending of treemen to the general assembly;” to direct and au- 


POTTER VS. ROBBINS. 


201 


thorize the imposing of fines, mulcts, imprisonments, and executing other punishments, 
pecuniary and corporeal; “to alter, revoke, annul, or pardon, under their common seal, 
or otherwise, such fines, mulcts, imprisonments, sentences, judgments, and condemna¬ 
tions,” with many other powers. Now it is respectfully suggested and urged that the 
power “to make, ordain, constitute, or repeal such laws, statutes, orders, and ordinances, 
iorms and ceremonies of government and magistracy, as to them shall seem meet, ’ ’ granted 
to the legislature of the colony by the clause of the charter under consideration, should he 
understood as applicable to the powers and duties above enumerated, and to all the other 
powers and duties granted and assigned by the charter to the legislature, and not as con¬ 
ferring powers above and beyond the charter which makes the grant. This construction 
will make the clause in question act in aid of the charter and of the objects designed to 
be accomplished by it, while the other construction will make all the remaining portions 
of the charter entirely contingent and wholly dependent upon what shall “seem meet” 
to the legislature. It will also present the singular anomaly of a legislative body stand¬ 
ing upon the charter as a constitution of government from which it derives its existence, 
its constitution, its organization and being as a legislative body, and claiming a power, 
granted in that charter itself, to subvert the whole instrument. Such a construction will 
not surely be given to this instrument when a different and at least equally natural one 
presents itself, which will not make the instrument a felo de se, but will make each part 
harmonize with the whole, and further the purposes which the whole was intended to ac¬ 
complish. 

But the undersigned respectfully suggests his belief that the majority of the committee 
are mistaken in the extent to which they seem to suppose the acts of the legislature of 
Rhode Island have conflicted with the provisions of the charter. And that he may make 
his views upon this point intelligible to the Senate, he will notice, as briefly as he is able, 
the instances, in their order, wherein the majority think the infractions upon the char¬ 
ter consist. 

The first is the permission granted by the legislature of .the colony to the freemen of the 
colony as early as 1664, one year after the granting of the charter, to send to Newport a 
sealed ballot, expressing the choice of each freeman sending it, for the general officers of 
the colony, instead of compelling each freeman to attend at Newport in person to express 
that choice; the ballot so sent being required to be sealed up, and to have the fullname 
of the voter written upon its back, to make it a legal ballot. As the undersigned has al¬ 
ready expressed his conviction that this law was not a violation of the charter, but a full 
compliance with it in its spirit and meaning, no further remarks will be required here, 
the same poi,nt being again raised under the third enumeration by the majority of the 
committee of the infringements by the legislature upon the provisions of the charter. 

The second is the separation of the legislative body of the colony into two houses, each 
exercising equal legislative powers, and each possessing a negative upon the other, when 
acting legislatively. This separation took place in the year 1666, about three years after 
the granting of the charter. It was undoubtedly the contemplation of the charter, as the 
undersigned construes its language, that the governor, lieutenant-governor, assistants, and 
deputies should sit together in one body, but it is not seen that the separation by which the 
governor, lieutenant-governor, and assistants should form one body (now the senate), and 
the deputies should form another body (now the house of representatives) necessarily 
constituted any violation of the charter in its spirit and meaning. The members were 
all to be elected by the people, and at the periods required by the charter, notwith¬ 
standing the separation. The same persons were to constitute the legislature of the 
colony, whether acting together as one body, or separately as two branches of the same 
legislature. The only effect, therefore, of the separation would be to restrict the legis¬ 
lative power by giving the body, small in numbers, a negative, in all cases as to legisla¬ 
tive acts, upon the more numerous body or house. This could not form a subject of 
complaint on the part of the crown which was one party to the charter, because the 
effect was to limit the exercise of that portion of sovereignty which had been granted to 
the colony, and not to extend it. It might have formed the subject of complaint to the 
people, in case it had operated as such an embarrassment upon the legislative power as 
to injure the public interests; but when we find that the measure was taken upon the 
suggestion of two of the most populous towns of the colony, and predicated upon the in¬ 
conveniences of a single assembly for legislative purposes; that it was adopted after 
three years only of practice under the contemplation of the charter of a single house; 
and that it has, from that time to the present, received the acquiescence and approba¬ 
tion of the people, the undersigned respectfully submits that this change may be well 
considered one of those “forms and ceremonies of government and magistracy ” which, 
to the legislature, might well “seem meet,” and which that body might well consider 
within its powers under the charter “for the good and welfare of the said company,” 
and not as the exercise of a power either above or beyond the specific grants made by the 
charter. 


202 


SENATE ELECTION CASES. 


The third is the law of 1760, requiring polls to be held in the different towns and all 
the freemen to vote by proxy, and to deposit their proxies, indorsed in writing with 
their full proper names, in the ballot-boxes at those polls. This law, in all material par¬ 
ticulars, established the system of voting which prevails to this day in the State of Rhode 
Island, and the question is, does this system constitute a violation of the charter of such 
a character as to authorize the assumption that the people of that State have ceased to 
consider it the fundamental law of their State government? The undersigned is com¬ 
pelled to say that he does not so consider it; and his reasons for this conclusion are: 

1st. That the violation complained of relates solely to a privilege granted to the free¬ 
men of the colony by the charter, the exercise of which, either in person or by proxy, 
must concern them alone, and could not afford to the crown any cause of complaint, 
whatever might have been the mode of its exercise, so long as that mode only proposed 
to effect an election by the choice of the freemen of the colony of the officers directed 
by the charter, and at the times and for the terms fixed by the charter. 

2d. That a continuance of the mode of election contemplated by the charter, of as¬ 
sembling all the freemen at the same place on the same day, and having them all then 
vote at the same poll, had, from the increase and extension of the population of the 
colony, become impossible in practice. 

3d. That the change of form was avowedly adopted ‘ ‘ for the good and welfare of the 
said company,” and to the legislature did “seem meet,” because the expression of the 
choice of the freeman made by his written ballot, designating the name of each person 
for whom he chose to vote, and the office which he designed each person voted for by 
him should fill, identified by the indorsement of his full proper name upon the back 
thereof, and sent to Newport under seal, was securing to that freeman as perfect an ex¬ 
ercise of his privilege of voting as if he had gone to Newport to deposit that same ballot 
there. 

4th. That for these causes the legislature well considered this change one of those 
“ forms and ceremonies of government and magistracy ” that they might “make, ordain, 
constitute, or repeal, for the good and welfare of the said company, ” without any viola¬ 
tion of the spirit and meaning of the charter. 

5th. That the only possible cause of complaint which could grow out of this change 
in the form of voting was the failure, upon the ballot, to make a choice of the officers 
to be voted for by a majority of all the votes given for each office, and that such failure 
was only an event, when it should happen, to operate to the inconvenience of those free¬ 
men for whose convenience the system of voting by proxy was adopted. 

6th. That the system of voting adopted by the act of 1760, and, in all substantial par¬ 
ticulars, yet maintained, is the least departure from the literal and technical require¬ 
ments of the charter which could be devised if the personal attendance of the freemen 
of the whole State at Newport on the same day, to vote at the same poll, is to be dis¬ 
pensed with; and therefore goes far to exhibit a determination on the part of the legis¬ 
lature and the people to conform to the strict language of the charter so far as that can 
be done in the present state of the territory and population over which the authority of 
the charter is held to be binding. 

The fourth infringement enumerated by the majority of the committee grows out of 
an act of the legislature of the State of Rhode Island entitled “An act to provide for 
the performance of the duties of governor in certain cases, and also for regulating the 
sitting of the general assembly. ’ ’ (See Digest of 1822, page 99.) By reference to the book 
here referred to, it will be perceived that this act also, in some form, was passed as early 
as 1663. The majority of the committee find in this act what they consider two material 
departures by the legislative power from the provisions of the charter. The first is 
found in the first section of the act which devolves the duties of governor upon the lieu- 
tenant-governor in case the office of governor shall be vacant “by reason of no election 
being made by the freemen, or by the governor’s death or resignation, or in case of his 
absence from the State, or inability to perform the duties and functions of his office;” 
and in case of a vacancy, for similar reasons, of both the offices of governor and lieu¬ 
tenant-governor, the duties are devolved upon “the senior sehator in rank for the time 
being.” To determine how far this act may be assumed as an infringement upon the 
provisions of the charter, or a departure from them, those provisions, so far as the office 
and duties of the governor and deputy governor are concerned, should be examined; and 
the undersigned feels confident that such examination will not result in any necessary 
violation of, or departure from, the charter, to any extent whatever. The charter, in 
all cases, in speaking of the powers and duties of tiie governor, uses this or similar lan¬ 
guage: “And in his absence the deputy governor; ” thus showing that the deputy gov¬ 
ernor, in case of the absence of the governor, whether occasioned by a vacancy in the office 
or otherwise, is to stand in his place and discharge his duties. It will be further seen 
that the governor, or, in his absence, the deputy governor, is constituted the presiding 
officer of the senate, and of the grand committee when the two houses are acting to- 


POTTER VS. ROBBINS. 


203 


gether as one body. Now, a vacancy may exist in both these offices at the same time, 
or during the absence of one a vacancy may be produced in the other. Still the senate, 
it in session, would require a presiding officer, and this law provides for the case. If a 
vacancy be occasioned in the office of governor, lieutenant-governor, or senator by death 
or removal from office, the legislature can fill the vacancy; but if vacancies for these 
causes should be produced in both the offices of governor and lieutenant-governor at the 
same time, the senate and grand committee would require a presiding officer and the State 
a person to do this duty until an election could be made by the legislature. The first 
section of this act is not understood to go any further than to make this provision, as 
the proviso would seem to negative the idea that this pro tempore governor can sign com¬ 
missions, which is believed to be the only remaining important duty to be performed by 
the governor of the State. This, therefore, is not perceived to bean infringement of the 
charter in the sense in which it is used by the majority of the committee. The senator 
upon whom the duty is devolved in case the double contingency should happen must 
have been elected by the people as a member of the body over which he is to preside, 
and it is believed that by a fair implication from the charter itself the senate without 
this law would have had the right in the absence of both the governor and lieutenant- 
governor to have designated one of their body to preside over their deliberations. 

The provision contained in the second section of the law authorizing the governor, or 
the person empowered to perform the duties of governor, to convene the legislature 
‘ ‘ when any emergent occasion shall require, ’ ’ and when the law shall not have provided 
for a meeting, forms the second ground assumed by the majority of the committee un¬ 
der this head. This provision, it is believed, instead of being a violation of or a de¬ 
parture from the charter, is expressly authorized by it. At pages 6 and 7 of the charter 
(see Digest of 1822 of the laws of Rhode Island) will be found the following provision: 

‘ ‘ And further, we will and, by these presents for us, our heirs and successors, do or¬ 
dain and grant that the governor of the said company for the time being, or in his absence 
by occasion of sickness or otherwise, by his leave and permission, the deputy governor 
for the time being, shall and may from time to time upon all occasions give order for the 
assembling of the said company and calling them together to consult and advise of the 
business and affairs of the said company.” 

Upon looking at the language of the charter it will be seen that its language when 
speaking of the legislature is most frequently ‘ ‘ the governor, deputy governor, assist¬ 
ants, and company, ’ ’ and hence the conclusion is that the authority conferred in the 
above paragraph is to convene the legislature and not the whole body of the freemen ot 
the whole colony, as the charter makes it the especial duty of the legislature and not of 
the whole body of the freemen ‘ 1 to consult and advise of the business and affairs of the 
said company. ’ ’ But if this view of this point be mistaken and the authority ‘ ‘ to ap¬ 
point times and places of the meeting of the general assembly ” be, as the majority of the 
committee suppose, given to that body only, still it would appear to the undersigned 
not to be a usurpation of this legislative authority to fix those times and places so far as 
human foresight could measure the necessity of such meetings while the legislature 
should be together, and to provide that in case urgent occasion should require during 
any recess the governor should convene them. He cannot, therefore, view this provision 
in the legislation of the State as going at all to sanction the position for which it is re¬ 
ferred to, that the legislature have not regarded the charter as the fundamental law of 
the State. 

The majority of the committee draw an argument in favor of the power in the legis¬ 
lature of Rhode Island to pass laws fundamental in their character because that legisla¬ 
ture has passed an act entitled ‘ ‘An act declaratory of certain rights of the people of this 
State,” commonly called a bill of rights. They say that this bill “in all the other 
States emanates from the people in their primary capacity,” while in Rhode Island it is 
a mere act of the legislature. The undersigned believes it to be true that most if not all 
of the States at the formation of their respective constitutions have either incorporated 
into that instrument or have accompanied it by a bill or declaration of rights which in 
the one shape or the other has received the approbation of the people in their primary 
assemblies, but he also believes that no State has presented to or had adopted by its free¬ 
men a bill or declaration of rights previous to the time of the formation of a State consti¬ 
tution for such State. He further believes that most if not all of the old States had bills 
of rights passed by their respective legislative assemblies prior to the time of the Revolu¬ 
tion, and that those bills of rights remained with legislative sanction and authority only 
until the States respectively formed constitutions, and in or with them submitted to their 
people for their adoption their bills of rights. He therefore supposes that the majority 
of the committee in this instance reason from an analogy which does not exist, inasmuch 
as the State of Rhode Island has never yet formed a constitution, but remains in this 
respect as it was at the close of the Revolution, and with the same bill of rights and same 
form of government. But even if this argument should be allowed its full force it would 


204 


SENATE ELECTION CASES. 


not seem to the undersigned to prove anything as to the question under discussion. This 
bill of rights contains nothing which conflicts with any provision of the charter, and it 
would be one thing to determine that the legislature of Rhode Island possesses the power 
to pass laws in their character fundamental in cases where no such laws exist, and an 
entirely different thing to determine that that body possesses the power to pass such 
laws in contravention of the provisions of the charter, that being, so far as its provisions 
extend, the fundamental law of the State. 

The majority of the committee further say in an enumeration of what they consider 
legislative infringements upon the charter, “the right of suffrage has been extended to 
a class of citizens who did not enjoy it under the charter.” The undersigned presumes 
the majority of the committee are right in the fact stated, though his acquaintance with 
the laws of the State does not enable him to speak other than from the statement in the 
report; but an examination of the charter will show that this subject is expressly put 
within the enumerated powers of the legislature, and that therefore any extension of 
the right of suffrage by that body cannot be an infringement upon their chartered rights. 
The incorporating clause of the charter, after naming certain individuals, is in the follow¬ 
ing language: “And all such others as now are or hereafter shall be admitted and made 
free of the company and society of our colony of Providence Plantations, in the Narra- 
gansett Bay, in New England, shall be from time to time and forever hereafter a body 
corporate and politic in fact and name by the name of the Governor and Company of the 
English Colony of Rhode Island and Providence Plantations, in New England, in Amer¬ 
ica.” (See Charter, page 5, Digest of 1822.) 

Among the enumerated powers of the legislature is the following: “And to choose, 
nominate, and appoint such, and so many, other persons as they shall think fit, and shall 
be willing to accept the same, to be free of the said company and body politic, and them 
into the said company to admit.” No extension, therefore, by the legislature of the 
right of suffrage to classes of citizens who did not possess that right at the time of the 
adoption of the charter could be an infringement upon that instrument, as it grants to 
the legislature this power, in express terms, to be used as it “shall think fit.” 

This closes the notice which the undersigned proposes to take of the legislative in¬ 
fringements upon the charter mentioned and relied upon by the majority of the com¬ 
mittee to show that the legislature of Rhode Island does not, and has not for a long 
time, considered it as fundamental law binding its action; but there is one consideration 
equally applicable to all these alleged legislative encroachments, which ought not to be 
withheld. It is that the previous review, as well as the statements made by the ma¬ 
jority of the committee, show that they all took place before the American Revolution, 
and while the State was a British colony. The charter, therefore, was then strictly 
and legally binding, for it was a grant by deed from the sovereign to his subjects, and 
they could take no rights under the charter which it did not grant, and exercise no 
powers derived from it in a manner different from that which it pointed out. The au¬ 
thorities and people of the colony were then one party to the charter and the sovereign 
was the other; and holding their authority, as they all did, by virtue of the charter, 
any act of those authorities which was in violation of it must have been legally void. 
It surely would not have been permitted to the colonists, while British subjects, to say, 
we have disobeyed and violated the charter; we have legislated above and beyond it; 
we have established a government not at all in conformity to its provisions; we have 
introduced a mode of elections which it does not authorize; we have organized a legis¬ 
lature upon principles contrary to its requirements, and which does not acknowledge 
its binding force, but sets up its acts as paramount to your charter; therefore we do not 
hold it to be the fundamental law of the colony. Still the most material of the legis¬ 
lative acts mentioned and relied upon to show that the charter has not been held to 
control the action of the legislative body organized under it were passed within three 
years after the date of the charter, and more than a century before those to whom it 
was granted ceased to be the subjects of the crown from which the grant was made. 
Can stronger evidence be required to show that these acts were never considered as vio¬ 
lations of the spirit and meaning of the charter, either by the sovereign who granted 
or by the people who accepted and adopted it as their system of civil government? It 
would seem to the uudersigned that this view of the subject must be conclusive against 
the interpretation given to these acts by the majority of the committee. He cannot, 
therefore, in any light in which he has been able to view the question, believe there is 
evidence to authorize the assumption that this charter of Charles II has not ever been, 
and is not now, considered by the people of Rhode Island as their constitution of gov¬ 
ernment to the full extent of its j>rovisions i n their true spirit and meaning, with the 
single exception of those portions of it which were made obsolete by the American Rev¬ 
olution. On the contrary, the evidences are clear and strong to his mind to show that 
it has ever been held to be the fundamental law of that State by its people, its govern¬ 
ment, and its legislature (the act of January, 1832, alone forming a material exception). 


POTTER VS. ROBBINS. 


205 


and he refers to the present basis of representation in the popular branch ot the legis¬ 
lature, and to the present mode of conducting the elections for general officers, as con¬ 
clusive of the question. 

This brings the undersigned to his second inquiry, to wit: Does the charter fix and 
prescribe the term of office of the governor, lieutenant-governor, and senators of the 
State? 

1 lie language of the charter itself must settle this point. The whole of the paragraph 
has been quoted in the statement of facts given in the early part of this report, and a 
reterence to that extract will show its requirement to be, “that yearly, once in the year , 
for ever hereafter, namely, the aforesaid Wednesday in May,” “the governor, deputy 
governor, and assistants of the said company,” “shall be” “newly chosen for the year 
ensuing . ” It is respectfully submitted that this language is definite and clear; that the 
term ot one year is fixed by it as the period of service, or official term, of the governor, 
lieutenant-governor, and senators of Rhode Island, by virtue of an election by the people 
to those offices, and that it does not admit of extension by any fair construction of the 
terms used or the meaning conveyed. Is there, then, anything in the charter to modify 
this construction of this provision? The majority of the committee seem to suppose 
there is, as in reference to this subject they use the following language: “It seems, on 
the contrary, to have been the intention of the crown to perpetuate the existence of the 
legislative power in the colony by an express provision that the authority, office, and 
power of the governor, deputy governor, and assistants shall cease and determine when 
their successors shall be elected and engaged, and not at the expiration of the term for 
which they were respectively chosen.” The undersigned believes, had the majority of 
the committee extracted the passage of the charter to which they must have referred for 
the above opinion that they would have seen its want of applicability to the question they 
were discussing. The passage is considered as solely applicable to cases of removal from 
these offices by death or for cause, and not to vacancies occasioned in any other manner. 
As, however, the majority of the committee have seemed to consider it as susceptible of 
a different construction, the undersigned feels bound to give it to the Senate, that it 
may form its own opinion of its extent and application. It is in the following words: 
“And if it shall happen that the present governor, deputy governor, and assistants, by 
these presents appointed, or any such as shall hereafter be newly chosen into their 
rooms, or any of them, or any other the officers of the said company shall die, or be re¬ 
moved from his or their several offices or places before the said general day of election 
(whom we do hereby declare, for any misdemeanor or default, to be removable by the 
governor, assistants, and company, or such greater part of them, in any of the said pub¬ 
lic courts to be assembled as aforesaid), that then, and in every such case, it shall and may 
be lawful to and for the said governor, deputy governor, assistants, and company afore¬ 
said, or such greater part of them, so to be assembled as is aforesaid, in any of their as¬ 
semblies, to proceed to a new election of one or more of their company, in the room or 
place, rooms or places, of such officer or officers, so dying or removed, according to their 
discretions; and immediately upon and after such election or elections made of such 
governor, deputy governor, assistant, or assistants, or any other officer of the said com¬ 
pany, in manner and form aforesaid, the authority, office, and power before given to 
the former governor, deputy governor, and other officer or officers so removed, in whose 
stead and place new shall be chosen, shall, as to him and them, and every of them re¬ 
spectively, cease and determine.” 

A careful examination of this clause of the charter will show that it first contemplates 
a vacancy in the office of governor, deputy governor, or an assistant by death, or, sec¬ 
ond, by removal from office, which, “for any misdemeanor or default,” it authorizes; 
and, in either case, it empowers the legislature to make an election to fill the vacancy 
so occasioned; and then declares that, after such election is made, “the authority, office, 
and power” of the officer “ removed” shall “cease and determine.” This is the whole 
scope of the provision, and the majority of the committee must, therefore, have been 
mistaken in supposing that it was applicable to a case of vacancy in any of these offices 
occasioned by a failure of the people to elect. It applies solely to elections made by the 
legislature; and there is no authority given by the charter to the legislature to fill a 
vacancy in the office of governor, deputy governor, or an assistant, occasioned in any 
other manner than by the death of the incumbent, or his removal from office for some 
‘ ‘ misdemeanor or default. ’ 7 

The undersigned finds no other provision in the charter which can, to his understand¬ 
ing, be possibly supposed to have any application to the official terms of the governor, 
lieutenant-governor, and senators; and as he cannot suppose the clause last above quoted 
and referred to can be understood as reaching any cases other than the two classes of 
cases he has mentioned, to wit, the death of the incumbent, and his removal from office 
for cause, he is forced to the conclusion that the charter does limit the term of office of 
the governor, lieutenant-governor, and senators to one year, “the year ensuing” the 


206 


SENATE ELECTION CASES. 


pronunciation of their election in the general assembly convened itt Newport; and that 
there is nothing in the other provisions of that instrument to qualify this limitation. 

Can, then, the legislature of the State, consistently with the powers granted to that 
body by the charter, extend the official terms of those officers beyond the limits fixed by 

the charter ? . 

This inquiry ^ould seem to have been already answered; for, if it be admitted that 
the charter is the fundamental law of the State, and, as such, binding upon its legisla¬ 
ture, and that it does fix the official terms of the governor, lieutenant-governor, and sen¬ 
ators at one year, it must follow that an extension of those terms beyond the period 
fixed by the charter would be an act of legislation above and beyond the charter in a case 
where it makes express provision, and, therefore, an act of legislation not authorized by 
the charter, but in direct violation of it. Such are the impressions fully entertained by 
the undersigned; but it is his duty to notice some of the positions by which the major¬ 
ity of the committee sustain themselves in an opposite conclusion. 

It will at once be seen that this discussion involves the constitutionality and validity 
of so much of the act of January, 1832, as extends the terms of office of the governor, 
lieutenant-governor, and senators in case of a failure to elect by the people, and there¬ 
fore has direct reference to the arguments by which the majority of the committee sus¬ 
tain that act. 

The first position, in order, taken by the majority of the committee, which it is pro¬ 
posed to notice, is laid down in the following words: u Your committee hold it to be an 
undeniable principle, applicable to all forms of government, that there must exist in the 
supreme legislative power of the State a capacity to preserve itself from annihilation.” 

This is a position to the soundness of which the undersigned cannot subscribe as ap¬ 
plicable to any of the forms of government adopted by any of the States of this Union, or 
by the Federal Government. He supposes Congress to be 11 the supreme legislative 
power” of this Government, but Congress has by the Constitution of the United States 
no capacity to preserve itself from annihilation. If the people should fail to elect mem¬ 
bers to the House of Representatives, or if the legislatures of the States should fail to 
elect members to the Senate, there would be no Congress, nor could Congress itself con¬ 
tinue itself beyond the terms for which its members have been elected, or in any other 
way, by its action, bring a new Congress into existence. Congress, therefore, which is 
the supreme legislative power of the United States, has not the capacity to preserve 
its continued existence, or to prevent its own annihilation. 

The undersigned, from the time allowed him to prepare this report, has not been able 
to examine very extensively the constitutions of the several States, nor have his former 
researches made him familiar with the minute provisions of those instruments; but from 
the examinations he has been enabled to make he entertains the opinion that no such 
power is conferred upon any one of the legislative bodies organized by those instruments 
as that of continuing itself in official existence, by its own act, beyond the term for which 
its members were elected. He believes that the members of the legislatures of all the 
States are elective by the freemen of the respective States, and in the constitutions of 
some no provision is made for a failure by the people to elect, and no mode of remedying 
such failure but that of a resubmission to the people has ever been attempted by the 
legislatures of those States. The constitutions of other States provide for filling the 
vacancies which may exist from failures to elect by the choice of such of the members 
of one or both branches of the new legislature as may have been elected, generally con¬ 
fining that choice to a certain number of the candidates voted for by the people for the 
office to be filled. Other States, where legal quorums are elected, suffer the vacancies 
occasioned by a failure to elect to remain unfilled until another regular election. There 
may be cases where the constitution of a State provides that the members of the old leg¬ 
islature shall continue to act until others are elected and qualified to fill their places, 
but the undersigned has been able to find no such case, nor does he believe that one ex¬ 
ists. He believes that the constitution of every State fixes definitely the length of the 
official term of the members of its .legislature, and that without a re-election by the 
people, or some other re-election or reappointment prescribed by the constitution of the 
State, the official powers of every member of the State legislatures cease with the close 
of the term for which he was elected, whether any other person be or be not qualified to 
discharge the same duties. 

Surely, in the first class of the above cases, where the State constitution makes no 
provision for a failure to elect, and a new election is the only remedy within the power 
of the legislature, “ the capacity to preserve itself from annihilation” does not exist in 
the legislature, the official terms of the members of which have expired. That capacity 
is in the people alone, and their election must determine the continuance or not of the 
legislative power. 

In the second class of cases, where vacancies occasioned by a failure to elect are to be 
filled by such members of one or both branches of the new legislature as may have been 


POTTER VS. ROBBINS. 


207 


elected, the capacity may exist in each legislature to preserve itself but not its succes¬ 
sion; and even this must depend upon the success of the people in electing a portion of 
the members; for if there should be a failure to elect the whole, or if the people should 
hold no election, there would be no one authorized to fill vacancies, and annihilation 
would follow. Such a legislature, therefore, has only sub modo the ‘ ‘ capacity to preserve 
itself from annihilation, ’ ’ and has not at all that capacity in the sense in which the ma¬ 
jority ot the committee are understood to use it, to preserve its succession. 

The third class, where the constitution of the State authorizes the members of the 
existing legislature to hold their offices and exercise their powers until others are elected 
or appointed and duly qualified to take their places, if indeed such a provision exists in 
the constitution of any one of the States, is still not a capacity which exists in the legis¬ 
lative power to preserve itself from annihilation, but a provision which exists in the con¬ 
stitution of the State to preserve its legislature from annihilation. The power or capacity 
is constitutional and not legislative, and, therefore, even in this class of cases does not 
bear out the majority of the committee in the position they have laid down. 

The undersigned may have misapprehended the meaning which the majority of the 
committee intended to give to the position itself, as they may have attached to the terms 
“supreme legislative power of the State” ideas which, as used, they have not conveyed 
to his mind. He has considered them as used in reference to the legislative bodies of 
the United States, and to legislative bodies acting in subjection to fundamental law para¬ 
mount to the powers of the legislative authority—indeed, from which the legislature de¬ 
rives its authority. If the position has not been taken in this sense, then the undersigned 
must admit that his replies to it may be a departure from the intention of the proposition; 
but he must at the same .time say that he thinks, in any other sense, the proposition is 
a departure from the argument it is used to support. 

The next position assumed by the majority of the committee to sustain this act of 
January, 1832, is that neither in the charter nor in the bill of rights, “nor in any other 
act or instrument now in force, is there to be found any prohibition of the power to con¬ 
tinue over an existing legislature until their successors shall be duly chosen and engaged. ’ ’ 
The reasoning to support this position is that the constitutions of the several States are 
in the broadest sense popular, and that the legislative power granted by them embraces 
every object not expressly prohibited by some provision in the instrument itself, or by a 
bill of rights. In reference to powers legislative in their nature and character, and not 
enumerated or particularly granted, this reasoning and the deduction from it may be 
generally sound as applicable to the State constitutions. It is respectfully submitted, 
however, that the establishment and organization of the legislative bodies, and as a neces¬ 
sary part of that establishment and organization the limitation of the terms of the mem¬ 
bers is, under our system, a constitutional and not a legislative power, and therefore, not 
coming within the scope of the reasoning of the committee, cannot be controlled by the 
conclusion drawn from that reasoning. But in the present case this point is not left to 
reasoning and inference. We have already seen that the terms of the members of the 
senate of Rhode Island are specifically fixed by the charter to one year. The constitu¬ 
tion has provided for the case in terms, and its grant is positive, definite, and clear. It 
surely then will not be contended that this term may be extended without a violation 
of the grant, because the granting clause does not contain a prohibition against its viola¬ 
tion. It is a settled rule of construction that an affirmative and positive grant, clear 
and intelligible in its terms, is itself a negative of what is not granted. The Constitu¬ 
tion of the United States fixes the term of a Senator at six years; and it surely would 
have been considered surplusage in that instrument to have added that the term of a 
Senator should be no more than six years; nor will it be supposed that Congress can pro¬ 
long that term because that negative is not affixed to the grant. This position, there¬ 
fore, cannot sustain the action of the legislature of Rhode Island in attempting by a 
legislative act to prolong the term of the senators of that State beyond the period limited 
find prescribed by the fundamental law of the State. 

The majority of the committee further contend that the people of the State of Rhode 
Island sanctioned the act of January, 1832, by holding elections pursuant to its provis¬ 
ions. The undersigned believes that in using this argument the majority of the com¬ 
mittee have not taken the proper distinction between the different provisions of that act. 
It has not been contended, to the knowledge of the undersigned, that those parts of the 
act which directed new elections in cases of failure to elect at the annual elections were 
unconstitutional or invalid. On the contrary, he understands that those provisions of 
the law are insisted upon as valid and binding, and that it is complained that the house 
of representatives did not carry them into effect according to their plain intent and mean¬ 
ing. It will be found to have been made a distinct point by Mr. Potter in his argu¬ 
ment that even supposing all parts of the law of January, 1832, were constitutional and 
valid, the election of Mr. Robbins to the Senate was improperly made, because if that 
law had been properly carried into effect there would have been two or three sessions of 


208 


SENATE ELECTION CASES 


the legislature of the State between January, 1833, when that election was made, and the 
3d of March, 1833, when his former term expired; while the law of the State regulating 
the election of United States Senators requires that election to be made “at the session 
of the general assembly next preceding the expiration of the term of service of the Sen¬ 
ator for the time being, and not before.” 

His reasoning upon the subject is that it was the intention of that law that elections 
should be held as frequently as that could be done, the returns made, and the results 
ascertained, until a choice of governor, lieutenant-governor and senators should be ef¬ 
fected; that the law fixed the period of thirty days as the longest notice which should 
be given of a special election to be held under it; that several of those elections were 
held upon a much-shorter notice, and proved that elections might be held once in thirty 
days without difficulty; that these elections were continued at intervals differing not 
very widely from this until the October session of the legislature in 1832; that after that 
period but one election was held under the law; that at the session in January, 1833, 
the legislature, instead of adjourning to such a day as would give time for another trial 
to elect a senate, and so continuing to do from time to time until the law made it im¬ 
perative upon them to elect a Senator, at any time before or even on the 3d day of March, 
1833, then proceeded to make that election, the house of representatives having first re¬ 
solved that they would order no more elections under the law; that by this proceeding 
the persons acting as the governor, lieutenant-governor, and senate, under the law of 
January, 1832, who were elected in April, 1831, without any reference to the election of 
a Senator, were made actors in that election, and actually gave their votes for Mr. Bob¬ 
bins, by which votes he was elected, when, if new elections had been ordered, as they 
should have been, other sessions of the legislature would have intervened between Jan¬ 
uary and March, and the people would have had an opportunity to elect a governor, lieu¬ 
tenant-governor, and senate, with a view to the election of a Senator; that the fact that an 
election was effected at the first trial after November, 1832, proves very clearly that had 
elections been ordered some choice would have been effected before March, 1833, and 
before the expiration of the then term of Mr. Robbins; while the total change produced 
by the election in the governor, lieutenant-governor, and senate proves conclusively that 
the public will was not represented by the former incumbents of those offices. 

These suggestions are given here in as condensed a form as possible, that the Senate 
may allow them such weight in the decision of this important controversy as this body 
may think they deserve. They must in any event satisfy the Senate that these elections, 
held in obedience to the law of January, 1832, furnish no evidence of the acquiescence 
of the people of that State in any of the provisions of that law other than those appli¬ 
cable to the special elections, the validity of which provisions have not been and are 
not now disputed. Indeed, from the fact that that law charged the house of representa¬ 
tives alone with the execution of this portion of it, an argument has been drawn that it 
was not the intention of the legislature which passed the act that any business of an 
official or legislative character should be performed by the senate after the expiration of 
their constitutional terms, and that the provisions in the law for the official continuance 
of the governor, lieutenant-governor, and senators was designed as a mere formal con¬ 
tinuance of the legislative body until an election by the people should be effected. The 
terms of the act, however, as will be seen by a reference to it, go very strongly to con¬ 
tradict this construction of it. 

Another position taken by the majority of the committee to sustain the validity of the 
act of January, 1832, is based upon the action of the supreme judicial court of the State 
of Rhode Island. The paper annexed, marked O, contains the evidence of the proceed¬ 
ings referred to. The facts seem to be that a person by the name of Miner was indicted 
in September, 1832, for murder; that he was tried in March, 1833, before this court, con¬ 
victed, and sentenced to be hung in July, 1833. He presented to the court an applica¬ 
tion for a habeas corpus, upon the ground that the judges had not been appointed by a 
competent legislature, and were not, therefore, empowered to try and sentence him. The 
court refused the application, but the grounds of the decision are not stated. It is con¬ 
tended that this decision was a pronunciation of the judgment of that court in favor of 
the validity of the law of January, 1832. Mr. Potter makes two answers to this point. 
The first is that the statute of the State expressly denies to this court the authority to 
grant a habeas corpus on the application of persons “committed for a capital crime ” 
“or persons convict” (see the Revised Laws of Rhode Island of 1822, page 181). To 
this it is replied, as it would seem to the undersigned, with much force, that notwith¬ 
standing the prohibition of the statute it would be competent for the court to examine 
such an application where the allegation was that the whole proceedings had been coram 
nonjudice, and, if such should, in their judgments, be the fact, that the case would not 
come within the prohibition of the statute and the writ might be granted. The second 
answer is that the judges of this court were the same persons from the first Wednesday 
in May, 1831, until the first Wednesday in May, 1833; that it is admitted on all hands 


POTTER VS. ROBBINS. 


209 


that their appointments and terms of service were within the power of the legislature, 
though the practice has been to make the appointments annually; that these judges 
were properly appointed and commissioned in 1831; that a resolution having the force 
of a law is always passed by every legislature of Rhode Island declaring that all officers 
in whose places no others have been appointed by the legislature or who have not been 
themselves reappointed shall continue to hold their respective offices until others shall 
be duly appointed and qualified to take their places; that a similar resolution was passed 
by the legislature in office from May, 1831, to May, 1832; that these judges did hold 
their offices and continue to discharge their duties as judges by virtue of their appoint¬ 
ment in 1831, and of the resolution above described until August, 1832, although their 
year expired in the month of May, 1832; that the body acting as the legislature in 
August, 1832, but whose right so to act is now disputed, did in that month assume to 
reappoint these judges, but it is said that if it shall be determined that this body was 
not the legislature of the State authorized to perform the constitutional duties of the 
legislature of the State, then their assuming to reappoint these judges would neither add 
to nor take from the powers they possessed before that act was performed; that they 
were continuing in office at the time by virtue of the resolution before mentioned; that 
they would so continue until removed from office or reappointed by a constitutional 
legislature; and that therefore their decision in the case referred to does not necessarily 
carry with it the decision of that court in favor of the validity of the act of January, 1832, 
because if they had decided expressly that that law was invalid and their purported re¬ 
appointment in August, 1832, void, they would still have been compelled to decide that 
they were in office by virtue of the resolution of the previous competent legislature as 
well after as before August, and, being so in office, were a competent court to try and sen¬ 
tence the criminal in question. This reasoning seems to the undersigned to follow 
necessarily from the facts, and to render wholly inconclusive this action of the court as 
a decision in favor of the validity of the law under consideration. 

The legislature which declared void the election of Mr. Robbins and elected Mr. Pot¬ 
ter, in the preamble to the act making that declaration denominate the body which 
made the election of Mr. Robbins “the general assembly,” and assign as the ground 
upon which they declare void their proceedings in that particular the non-compliance 
with the act of January, 1832. The majority of the committee consider this an admis¬ 
sion sustaining the validity of that act. This same legislature also, at their first session, 
repealed the act of January, 1832, without expressing any opinion in the repealing act 
that the act to be repealed was not valid. This the majority of the committee also con¬ 
sider an admission to the same effect. How far admissions by this subsequent legisla¬ 
ture, if made, would render valid an unconstitutional law passed by a preceding legis¬ 
lature, or how far such admissions are to be considered evidence of the constitutionality 
of such a law, when that is the point in issue, are questions which the undersigned 
leaves to the determination of the Senate. These admissions, however, appear to him 
to have been made, so far as they can be considered admissions at all, under circum¬ 
stances which should be considered. The Legislature of Rhode Island, at its October 
session, in the year 1833, pass an act in which they declare the election of Mr. Rob¬ 
bins to the Senate “to be null and void, and of no effect,” and that the office of Sen¬ 
ator is vacant; not that the office is thereby vacated, but that it is “vacant.” To 
that act they affix a preamble, in which they term the body of men which made 
the election that they are about to declare void “the general assembly,” and accuse 
them of a non-compliance with the law by virtue of which they held their offices; and 
this preamble is followed by the law which declares null and void the act referred 
to. Now, it would not do to assume that anything contained in this preamble 
was designed as an admission of the validity of the election of Mr. Robbins, because 
it was the sole object of it, and of the law to which it is the preamble, to declare that 
election void; and it will not be contended that the preamble to any legislative act is 
to be so construed as to contradict, defeat, and overrule the act itself, which is the only 
part of the proceeding having validity. This legislature, then, did not intend to admit 
that Mr. Robbins had been validly elected to the Senate of the United States, but to deny 
that fact, and to declare not voidable but void the proceeding by which he purported to 
have been so elected; and the preamble to the act must be so understood and construed 
as to be consistent with this intention. Two grounds were assumed upon which that 
election was void: 1st. That the law of January, 1832, so far as it purported to continue 
the terms of office of the governor, lieutenant-governor, and senators, was in direct viola¬ 
tion of the constitution of the State, and therefore void, and that the persons assuming 
to act as a governor and senate in the election of Mr. Robbins were not constitutionally 
a governor and senate, and were not authorized so to act. 2d. That the governor and 
senate for the time being held their offices, not by virtue of an election by the people, 
but by virtue of the act of January, 1832, and that a failure to comply strictly with the 
provisions of that act had put an end to the powers they derived from it, and therefore 

S. Doc. 11-14 


210 


SENATE ELECTION CASES. 


that they had no power to act in the election of a Senator. The subsequent legislature ap¬ 
pear from this preamble to their act to have assumed the latter ground as the foundation 
of their action, and anything in the shape of an admission in the preamble would seem 
to be properly referable to the views they entertained, and upon which they were acting, 
and not to connect itself with a view of the subject which does not appear from their pro¬ 
ceedings to have influenced their action. If, therefore, the ground assumed by this legis¬ 
lature should be held to be untenable, and the ground first above mentioned, to wit, that 
the act of January, 1832, so far as it purports to extend the official terms of the gov¬ 
ernor, lieutenant-governor, and senators, is in direct violation of the constitution of the 
State, and therefore void, be well taken, the undersigned is unable to discover that any¬ 
thing in the admissions supposed to be contained in this preamble can weaken or over¬ 
turn it. In reference to the admission supposed to be drawn from the silence of the act 
repealing the act of January, 1832, the undersigned will simply remark that this was an 
act to repeal a law parts of which were held to be unconstitutional and void, and other 
parts of which were admitted on all hands to be valid and binding as law; and under 
these circumstances he cannot consider the absence of a declaration pointing out those 
parts which were held to be unconstitutional, inasmuch as it was the object of the legis¬ 
lature to repeal the whole act, as going very far to sanction the whole act. 

The majority of the committee mention the action of the legislature of Ehode Island 
in relation to the election of members of Congress and the introduction of the plurality 
instead of the majority of votes to elect in the choice of those officers as going to show the 
extent to which the legislature have gone in regulating elections, contrary to the long- 
established customs of the State. Two remarks may be made in relation to this argu¬ 
ment. The first is, that the charter could not necessarily have contained any provision in 
relation to the election of these officers, inasmuch as it was granted for the government 
of a British colony, and not of the State of Ehode Island as a member of the confed¬ 
eracy of States composing this Government, and was granted more than a century before 
such a thing as a Congress of the United States of America was known or had exist¬ 
ence; whence, from necessity, the legislature must have full power over that whole sub- 
j ect. The second is, that the fact that the legislature of Ehode Island extended, by law, the 
plurality mode of election to the choice of members of Congress where the charter does 
not interfere, and did not extend it to the election of officers of the State government where 
the charter prescribes the majority principle, affords at least as strong an inference in 
favor of their sense of the binding and paramount influence of the charter, where it does 
direct, as of any disposition to treat it lightly by disregarding the mere analogy when 
acting upon a case not known to the charter. 

So much for the arguments which have been adduced by the majority of the committee 
to sustain the validity of the act of January, 1832. 

In corroboration of the point now under discussion, however, to wit, that the terms of 
the governor and senate can be continued beyond the year, the majority of the committee 
assume that these officers always have held over until the election was completed and 
their successors qualified. A perfect understanding of the facts, it is believed, will make 
this point plain. From the statments of the parties annexed, and before referred to, it 
is to be seen that the practice of the legislature of Ehode Island has ever been to adjourn 
to meet on the day previous to that fixed in the charter for the annual election, and that 
pursuant to such adjournment, a quorum of both houses assemble on that day always at 
Newport, the place named in the charter for holding the annual elections. It is undoubt¬ 
edly true, as the majority of the committee remark, that when the people all assembled 
and voted at that place they might remain together until an election was effected, and that 
the governor and senate of the former year might remain until that result was ascertained, 
but there is not found any provision in the charter making them at that time presiding 
officers of the election or imposing upon them any other official duties after the opening 
of the election. The new house of representatives always assembled on the day fixed for 
the election, and took the oaths of office on that day. They always acted as the canvassers 
of the votes, and the result of the election was declared by that body. Since the system of 
voting by proxy, as before d escribed, has been adopted, the proxies have always been returned 
to Newport and canvassed by the new house of representatives, as the votes given by the 
people there assembled formerly were. They declare the result as they formerly did, and 
the election is closed. If a governor, lieutenant-governor, and senate are found to be 
elected, the persons elected are sworn, and the legislature is organized; and as an elec¬ 
tion of a governor, lieutenant-govenor, and a quroum of the senate has never failed to be 
made until the first Wednesday in May, 1832, the history of the government of the colony 
and State furnishes no precedent for such a case as that under consideration, where the 
former governor, lieutenant-governor, and senators, or any of those officers, have held over 
and attempted to perform official acts because successors were not elected. That history 
does, however, present several instances where the whole number of senators have not been 
elected and no attempt has been made to fill the vacancies by a new election, or in any other 


POTTER VS. ROBBINS. 


211 


manner, nor have the former incumbents of the vacant seats ever claimed to hold over 
the terms for which they were elected, but the vacancies have in all such cases been suf¬ 
fered to remain for the year. It should be further remarked that no evidence is found 
to show that any election has occupied more than the day fixed in the charter, so that any 
presumption ot a holding over of these officers in consequence of a failure to elect on that 
day is unsupported by evidence. 

From these facts it would seem to the undersigned to follow necessarily that the old 
governor and senate are brought together by the adjournment of the legislature to the 
day previous to the election; that subsequent to that day, unless re-elected, they have 
never had any official duty to perform, and have never performed any; that the right to 
hold over, in case of a failure to elect, had not been admitted in the practice of the gov¬ 
ernment under the charter, because repeated instances have happened where failures to 
fill places in the senate have occurred and the incumbents have not continued to occupy 
them, but they have remained vacant for the whole year; that the holding over referred 
to by the majority of the committee has relation only to the day of election, and then 
these officers, unless re-elected, have no official duties to perform; and that, therefore, 
the holding over of the governor, lieutenant-governor,and senators of that State from 
the first Wednesday in May, 1832, to the first Wednesday in May, 1833, in consequence 
of a failure of the people to elect, was not sanctioned by any former practice of the 
government under the charter, and must be held to have been done by virtue of and in 
obedience to the act of January, 1832, and not by virtue of any provision in the charter 
or in conformity with any former precedent. 

The opinion of the undersigned as to the validity of such of the provisions of that law 
as assumed to extend the official terms of these officers has been given in his remarks 
under the two first heads of this report, where it will be seen that he has come to the 
conclusion that the charter is to be regarded as to this question as the fundamental law 
of the State, binding upon its legislature, and that it does limit specifically their offi¬ 
cial terms to one year. 

As it has been intimated in some one of the statements of fact that the duty of swear¬ 
ing the new governor, lieutenant-governor, and senators devolved upon the old officers 
as an official act to be performed by them after the election had been effected, it may be 
proper to refer here to the paper annexed, marked P, to show that, for a long term of 
years at least, this duty has been performed by the secretary of state, and not by them. 

This brings the undersigned to his fourth inquiry, which is: Can the Senate of the 
United States, when these questions are presented to it by the action of the legislature 
of the State of Rhode Island, in the purported election of a member for this body, look 
into and pronounce its opinion upon them by way of inquiry into the right of a sitting 
member to the seat he occupies ? 

Two bodies of men, calling themselves the senate and house of representatives of the 
State of Rhode Island, and together acting as the legislature of that State from the first 
Wednesday in May, 1832, to the first Wednesday in May, 1833, did, in January, 1833, 
assume to elect Asher Robbins to the Senate of the United States for the term of six 
years from and after the 3d day of March then next, to fill a vacancy to be produced 
by the expiration of his then term of office on the last-mentioned day. Mr. Robbins 
received a majority of the votes given by these two bodies of men for the office, and the 
election was conducted according to the forms pursued by the legislature of Rhode Isl¬ 
and in the election of Senators. The result of the election was pronounced in the usual 
manner, and the person acting as governor of the State at the time issued to Mr. Robbins 
a commission in the usual form, and authenticated in the usual manner, for the office. 
This commission was presented to and read in the Senate of the United States on the 
4th day of February, 1833, and placed upon the files of that body. 

This election of Mr. Robbins was protested against by several members of the house 
of representatives of that State soon after it was made (see protest annexed, marked Q), 
and has ever since been alleged to have been void, on the ground that the persons acting 
as the governor, lieutenant-governor, and senators of the State at the time of the election, 
and aiding in making it, were not constitutionally the governor, lieutenanUgovernor, 
and senators of the State, nor authorized to perlorm that act, and, of consequence, that 
the person acting as the governor of the State, and as such signing Mr. Robbins’s com¬ 
mission, was not constitutionally the governor of the State, nor authorized to perform that 
act. In the month of October, 1833, two other bodies of men, admitted to be the sen¬ 
ate and house of representatives of the State of Rhode Island, were assembled and con¬ 
stituted the legislature of that State, and while so assembled this legislature passed the 
law to be found annexed to the report of the majority of the committee, and marked A, 
declaring the election of Mr. Robbins “null and void, and of no effect,” and the office to 
be “vacant.” This same legislature then proceeded to electa Senator to fill the va¬ 
cancy which they alleged existed by the expiration of Mr. Robbins’s former term in 
March previous, and, upon counting the votes given, Elisha R. Potter was found to hav^ 


212 


SENATE ELECTION CASES. 


received a majority of the whole, and was declared to have been duly elected. The elec¬ 
tion was conducted in the usual manner, and the person admitted to be the governor of 
the State issued to Mr. Potter a commission for the office in the usual form, and with 
the proper authentications. This commission was presented to the Senate of the United 
States and read in that body on the first day of its present session, and at the same time 
Mr. Robbins and Mr. Potter both presented themseves at the bar, and each offered to take 
the oath of office as a Senator of the United States from the State of Rhode Island. 

This is believed to be a sufficient summary of the facts to present this point intelligi¬ 
bly to the Senate. It will be seen from them that the question is raised upon the action 
of a body admitted on all hands to have been a constitutionally organized legislature of 
the State of Rhode Island, declaring “null and void, and of no effect,” an important act 
of a preceding body claiming to be the legislature of that State, but the organization of 
which was peculiar, and the constitutionality and legality of whose acts are questioned. 

The Senate, by the Constitution, is made “the judge of the elections, returns, and 
qualifications of its own members, ’ ’ and can it, under this power, look into these facts 
to determine which of the persons claiming the seat as a Senator from Rhode Island is 
entitled to represent that State in this body? 

No question appears to the undersigned to be raised as to the “returns” or “qualifica¬ 
tions” of either of the claimants, and he therefore considers that the question of “elec¬ 
tion” is the only one presented for decision. This question the Senate has the power to 
determine, because it is made “the judge of the elections” of its own members. The 
facts in this case show that the legislature of the State of Rhode Island declare, in the 
solemn form of a law of the State, that Mr. Robbins has not been elected to the Senate; 
that the proceedings from which his commisson proceeded were “ null and void, and of 
no effect,” because the body taking them were not authorized to elect a Senator; and 
that the place was “vacant” at the time when this declaration was made. Still, not¬ 
withstanding this solemn declaration by a body conceded to be the legislature of the 
State, Mr. Robbins produces to the Senate, and there is referred to the committee, a 
commission in due form, according to the laws and the practice of the government of 
Rhode Island, to show that Mr. Robbins had been duly elected a Senator to represent 
that State in the Senate of the United States. Will the Senate look behind this com¬ 
mission to determine whether or not it was properly granted? The undersigned believes 
that it is not only the right but the duty of the Senate to do so. The commission is 
only the evidence of the election of a Senator, and if the Senate were to limit its in¬ 
quiries to the proper form and authentication of the commission it would only make 
itself the judge of the evidence of an election, not the judge of the election itself. The 
undersigned supposes that the evidence of an election to an office is, in all cases, prima 
facie only, and is susceptible of being controverted and contradicted before a tribunal 
competent to judge of the election; he therefore supposes that the regularity of the evi¬ 
dence of an election may be one thing and that the election may be a very different thing; 
and he concludes that, as the Senate is constituted not the judge of the evidence of the elec¬ 
tions of its members only, but “ the judge of the elections ” of its members, it may and, 
in all cases of a contested election where the contest does not arise as to the regularity 
of the evidence simply, should look behind the evidence and into the election itself, 
that it may determine what it is constituted the judge to determine, the fact of election, 
or, in other words, that it may determine whether the prima facie evidence laid before 
it is the real evidence of facts or is subject to contradiction by the facts. 

The terms of the Constitution would seem to confirm this construction of the powers 
of the Senate. It is “the judge of the elections, returns, and qualifications of its own 
members.” The “returns” must refer to the commissions or other evidences of elec¬ 
tion of the members of this body as separate from the “elections” or “qualifications,” 
and of the “returns” the Senate is the judge. Again, the “qualifications” must re¬ 
late to the age, citizenship, residence, and other personal qualifications of the person 
elected, and of these “qualifications” the Senate is also the judge, and theseare mat¬ 
ters to be determined separate from the ‘ ‘ elections ’ ’ and ‘ ‘ returns. ’ ’ So also the Senate 
is the judge of the ‘ * elections ’ ’ of its members as separate from the ‘ 1 returns and quali¬ 
fications.” The three enumerations would seem to be separate subjects, upon each of 
which the Senate is to judge in the performance of its constitutional duty; and as a 
j udgment upon the returns is made a separate matter from a judgment upon the election, 
the inference would seem to be irresistible that an examination behind the returns was 
contemplated, that a judgment upon the election, independent of the return, might be 
formed. 

Against this construction of the constitutional powers and duties of the Senate the 
majority of the committee interpose objections which are of a consequential character 
mostly, but which will be considered. The committee say “it would be a dangerous 
exertion of power to look behind the commission for defects in the component parts of 
the legislature, or into the peculiar organization of the body for reasons to justify the 


POTTER VS. ROBBINS. 


213 


Senate in declaring its acts absolutely null and void. Such a power, if carried to its 
legitimate extent, would subject the entire scope of State legislation to be overruled by 
our decision, and even the right of suffrage of individual members of the legislature 
whose elections were contested might be set aside. It would also lead to investigation 
into the motives of members in casting their votes for the purpose of establishing a 
charge of bribery or corruption in particular cases.” 

Reserving for the present the consideration of the extent to which the consequences 
of adjudging any act unconstitutional, or illegal, or invalid may be properly used as an 
argument against such an adjudication, the undersigned respectfully suggests that in his 
judgment the consequences here mentioned do not necessarily follow the decision ap¬ 
prehended. He understands it to be a necessary rule of all legislative bodies empowered 
to judge of the “elections, returns, and qualifications” of their own members that the 
person presenting the prima facie evidence of membership is allowed to take his seat, 
and is fully authorized to act until such prima facie evidence of right is overruled by 
the judgment of the body; and he never heard it doubted or questioned that the votes 
of a member so sitting were as valid for all purposes as the votes of a member whose 
seat was not contested, and whose right to a seat was not questioned. Indeed, if it 
were not so the admission of a member to a seat in a legislative body until his election, 
return, and qualifications had been definitely adjudged would be an absurdity. It 
would be the admission into the body of a voter who might, by the adjudication of the 
body itself, vitiate its whole proceedings. 

So also in the case supposed by the majority of the committee of alleged bribery and 
corruption. The undersigned has always supposed that a member of a legislative body 
who should accept a bribe was punishable for the crime; but he has never understood, 
nor does he now understand, that the vote of the member given under the corrupt in¬ 
fluence vitiated the proceeding voted upon or rendered either void or voidable by legal 
adjudication such proceeding. The member bribed is still constitutionally and legally 
a member of the body notwithstanding his corruption, and retains all his rights and all 
his powers as a member until conviction for the crime ousts him from his seat. 

Hence it is concluded that the consequences above enumerated cannot follow the de¬ 
cision involved in the present controversy, whatever that decision may be, as the ques¬ 
tion presented is not whether the persons who did act as the governor and senate of 
Rhode Island, or some other persons claiming the right so to act, were the proper persons 
to discharge the duties of those offices; but the question is, were the persons who did so 
act constitutionally and legally, even by any prima fade claim, the governor and senate 
of that State, and as such authorized to vote upon the election of a Senator? 

Again, the majority of the committee say “such a power does not belong to the Fed¬ 
eral Government, and would, if claimed and carried out to its full extent, annihilate all 
the reserved rights of the States. It is a general principle of national law applicable to 
all distinct and independent governments, that if there arise any disputes in a state on 
the fundamental laws and administration, or on the prerogatives of the different powers 
of which it is composed, it is the business of the state alone to judge and determine 
them in conformity to its political constitution. No government has a right to intrude 
into the domestic affairs of another state, and attempt to influence its deliberations, or 
to control its action.” 

These principles may be perfectly sound when applied to nations wholly disconnected 
with and independent of each other; but the undersigned respectfully submits that they 
cannot be applicable to governments related to and connected with each other, as are 
the governments of the States of this Confederacy and the Federal Government, of which 
the States are component parts, and especially when the question is the proper repre¬ 
sentation of the State in that branch of the Federal Legislature where its sovereignty is 
represented in the particular manner pointed out by the Federal Constitution. Upon 
such a question, that instrument, and not the general principles of international law, 
must govern the decision. We have already seen that the Constitution makes it the 
duty of the Senate to judge of the “elections ” of its members. Another provision of 
that instrument says ‘ ‘ the Senate of the United States shall be composed of two Sena¬ 
tors from each State, chosen by the legislature thereof;” and the question now directly 
presented is, was Mr. Robbins chosen by the legislature of the State of Rhode Island ? It 
would seem to the undersigned, with all deference to the opinion expressed by the ma¬ 
jority of the committee, that the Senate cannot judge of the election of that individual 
unless it can look into and decide this question, and that to determine this to bt an un¬ 
authorized interference on the part of the Federal Government in the domestic affairs 
of the government of the State of Rhode Island would be to determine that the Senate 
cannot, in the most important point always involved, “judge of the elections” of its 
own members; that it cannot judge whether or not they were chosen by the legislatures 
of the States, when the Constitution expressly requires that they should be so chosen. 


214 


SENATE ELECTION CASES. 


In this connection, the majority of the committee seem to place much stress upon 
another argument, entirely consequential in its character, which is, that a decision by 
the Senate that the body of men who elected Mr. Robbins was not the legislature of 
Rhode Island will be in effect a decision that all the laws passed by that body, acting 
as the legislature of that State, and all its other acts performed in that capacity, are 
null and void. Inasmuch as the State has now, and has had since the first Wednesday 
in May, 1833, a legislature admitted on all hands to be constitutionally chosen and or¬ 
ganized, it would appear to the undersigned that the majority of the committee give an 
unnecessary importance to this consequence of such a decision in case the consequence 
must follow; because the evils apprehended, to a very great extent, if not to the entire 
extent, might be remedied by the action of the competent legislature in affirmance of 
the acts to be affected. But, however this may be, he cannot but consider it a plain 
proposition, and not requiring argument to support it, that when the constitutional or¬ 
ganization of a body of men claiming to be the legislature of a State is the question in 
issue, the acts of that body whose constitutional powers are disputed are not to be ad¬ 
duced as evidence of the constitutional power of the body to perform them. When the 
constitutionality of a legislative act is questioned, he cannot believe that the act itself 
is to be relied upon as evidence of its own validity. Equally clear is it to his mind that 
when such a question is to be determined the consequences of pronouncing the act in¬ 
valid are not considerations which should legitimately control the decision. The act is 
either constitutional or unconstitutional. If constitutional, the dispute is settled; if 
unconstitutional, no consequences to follow from a pronunciation of that fact can make 
it valid. So with the body claiming to be the legislature of a State. If the legislature 
of the State according to the provisions of its constitution, the controversy is at an end; 
if not the legislature of the State, no acts of theirs in their assumed character, and no 
consequences to follow from the invalidity of those acts, can give them the powers which 
they had not when the acts were performed, or make them, what they were not, the 
legislature of the State. But if consequences can be legitimately considered in the 
argument, the undersigned feels compelled to say that to his mind a decision that the 
State of Rhode Island has no fundamental law or constitution of government but the 
will of its legislature will be a consequence to its people much more serious than any 
which can be apprehended from pronouncing void the acts of the body of men assuming 
to be the legislature of the State from May, 1832, to May, 1833. 

The undersigned then concludes that the charter of Charles II granted to the colony 
of Rhode Island and the Providence Plantations (now the State of Rhode Island) in the 
year 1663, and submitted to and adopted by the people of the colony in the year 1663 
and 1664, is now to be considered the fundamental law of the State of Rhode Island, and 
binding upon its legislature as a constitution of government, except so far as the provis¬ 
ions of that charter were rendered obsolete by the American Revolution; that that charter 
does fix, and specifically limit, the official terms of the governor, lieutenant-governor, 
and senators of the State to one year; that the legislature of the State have not the power 
to extend those official terms beyond that limit; and that the Senate, upon a question 
as to the election of a Senator, has the right to inquire whether he was chosen by the 
legislature of his State, and, consequently, whether any body of men assuming to choose 
a Senator were authorized, as members of the legislature of their State, to make the 
choice under the provisions of the constitution of such State. 

It being conceded that the official terms of one year of the governor, lieutenant-gov¬ 
ernor, and senators of Rhode Island had expired in May, 1832, and that they continued 
from that period until May, 1833, to act in those offices, respectively, without any new 
election by the people, the undersigned is compelled to conclude that they acted during 
that period without constitutional authority, and that they were not, after May, 1832, 
members of the legislature of that State, and were not, therefore, in January, 1833, 
when they did so act, empowered to vote in the choice of a senator to represent that 
State in the Senate of the United States. And inasmuch as the Constitution requires 
either a governor, or lieutenant-governor, and at least six senators to constitute, with 
the house of representatives, a legislature; and as there were no such officers in consti¬ 
tutional existence in the State of Rhode Island in January, 1833, when Mr. Robbins 
purports to have been chosen a Senator, he is brought to the further conclusion that that 
choice was not made by the legislature of the State. 

Has, then, Mr. Potter been validly elected a Senator from that State ? That the body by 
which he was chosen was the legislature of the State has not been questioned; but in 
speaking upon that point the majority of the committee express the opinion that that 
legislature had no “authority to proceed to the election of another Senator until the seat 
of the Senator-elect had been vacated by a solemn decision of the Senate of the United 
States.” If,speaking legally and constitutionally, there was a Senator-elect, then this 
opinion is unquestionably sound, as it will not be contended that any legislature of a 
State has the power to vacate a seat in the Senate. To be more explicit and intelligi- 


POTTER VS. ROBBINS. 


215 


ble, if Mr. Robbins’s election was voidable only, and not void , a subsequent legislature 
could not act until the vacancy was produced by the decision of the Senate. But if, as 
the undersigned has expressed hisopinion, the election of Mr. Robbins was not made by 
the legislature of the State, then it was not voidable , but absolutely void; it was not an 
election within the requirement of the Constitution of the United States, and the vacancy 
existed from the expiration of his former term in March, 1833. If the Senate shall come 
to this conclusion, then the undersigned is not aware of any ground upon which it can 
be contended that any constitutionally organized legislature of the State had not the 
power to fill that vacancy, or that the election of Mr. Potter made by such a legislature 
in October, 1833, is not valid. 

All which is respectfully submitted. 

SILAS WRIGHT, Jr. 

[The documents annexed to the minority report are here omitted.] 


216 


SENATE ELECTION CASES. 


[Twenty-eighth Congress—First session.] 

JOHN M. NILES, 

Senator from Connecticut from December 21,1835, till March 3,1839, and 
from May 16,1844, till March 3,1849. 


Mr. Niles was elected to the Senate for the term beginning March 4, 1843. His credentials were 
not presented until April 30,1844, when the Senate resolved that they be referred “ to a select com¬ 
mittee, consisting of five members, who shall be instructed to inquire into the election, return, and 
qualification of the said John M. Niles, and into his capacity at this time to take the oath prescribed 
by the Constitution of the United States.” Some members of the Senate doubted the constitutional 
power of the Senate to make such an inquiry. May 16,1844, the committee reported that he had 
been duly elected, and that they “ are satisfied that Mr. Niles is at this time laboring under mental 
and physical debility, but is not of ‘ unsound mind ’ in the technical sense of that phrase; that the 
faculties of his mind are subject to the control of his will, and there is no sufficient reason why he 
be not qualified and permitted to take his seat as a member of the Senate.” They reported the fol¬ 
lowing resolution: “ Resolved, That the Hon. John M. Niles be permitted to take the oath of a Sen¬ 
ator in the Congress of the United States,and to take his seat as a member of the Senate.” The 
resolution was adopted. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journals, 1st sess. 28th Cong., and the report of the committee copied from 
the original on file at the office of the Secretary of the Senate. 

The debates are found on pages 564,565,602,603 of the Congressional Globe, 1st sess. 28th Cong., 
vol. 13, part 1. 


Tuesday, April 30, 1844. 

Mr. Fairfield presented the credentials of the Hon. John M. Niles, elected a Senator 
by the general assembly of the State of Connecticut for the term of six years commenc¬ 
ing the 4th day of March, 1843; which were read. 

Mr. Jarnagin submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

“ Resolved , That the credentials presented to the Senate of the election of John M. Niles 
to be a Senator of the United States from the State of Connecticut be referred to a 
select committee, consisting of five members, who shall be instructed to inquire into 
the election, return, and qualification of the said John M. Niles, and into his capacity 
at this time to take the oath prescribed by the Constitution of the United States.” 

On motion by Mr. Jarnagin, 

Ordered , That the said committee be appointed by the President pro tempore; 

And Mr. Jarnagin, Mr. Benton, Mr. Berrien, Mr. Wright, and Mr. McDuffie were 
appointed. 

Thursday, May 16, 1844. 

Mr. Jarnagin, from the select committee to whom the credentials of the Hon. John 
M. Niles were referred, submitted a report, accompanied by the following resolution: 

11 Resolved, That the Hon. John M. Niles be permitted to take the oath of a Senator 
in the Congress of the United States, and to take his seat as a member of the Senate.” 

The Senate proceeded to consider the resolution; and having agreed thereto, 

The oath prescribed by law was administered to the Hon. John M. Niles, and he took 
his seat in the Senate. 


REPORT OF COMMITTEE. 

In the Senate of the United States, May 16, 1844. 

Mr. Jarnagin made the following report: 

The select committee, to whom was referred the credentials of the Hon. John M. Niles 
to be a Senator of the United States from the State of Connecticut, with instructions to 
inquire into the election, return, and qualifications of the said John M. Niles, and into 
his capacity at this time to take the oath prescribed by the Constitution, have performed 
the duty assigned and present the following report: 

In the month of May, 1842, the Hon. John M. Niles was duly elected a Senator from 
the State of Connecticut in the Congress of the United States for the term of six years 
from the 4th of March, 1843. The committee are satisfied his election, return, and quali¬ 
fications are legal and sufficient, and that it remains to inquire into his capacity at this 
time to take the oath prescribed by the Constitution. In prosecuting this inquiry the 
committee addressed a note to Mr. Niles requesting an interview with him, which was 


JOHN M. NILES. 


217 


promptly given. Between him and the committee there have been full, free, and frank 
conversations. Mr. Niles gave so satisfactory an account of his afflictions and present 
condition as to render a resort to other evidence unnecessary in the opinion of the com¬ 
mittee. He has long been laboring under severe bodily afflictions, which, as was natural, 
impaired the energies of his mind to such an extent that it was deemed proper to remove 
him to a retreat at Utica, in the State of New York, of which he remained an inmate till 
about the 1st of April, 1844. His visitations were greatly alleviated, but he felt he had 
not physical ability to discharge the duties of a Senator for some time after the com¬ 
mencement of the present session of Congress, and a strong aversion to being an obstacle 
in the way of a full representation of his State in the Senate, but his inclinations were 
yielded to what was thought the better judgment of his friends, in obedience to which 
he repaired to Washington to take his seat in the Senate about the 1st of April last, but 
felt unable to do so till the 30th of that month, when he presented himself to be quali¬ 
fied as Senator. As evidence of the propriety of the course pursued, Mr. Niles presented 
to the committee the following letter of Dr. A. Bingham: 

“Asylum, Utica, April 24, 1844. 

“Hon. John M. Niles: 

‘ ‘ My Dear Sir : Your letter has been received and read with much satisfaction. I per¬ 
ceive you are improving, and that it requires but a little more time, warm weather, and 
exertion on your part, with some urgency of friends, to restore you to health. Though 
you have been greatly afflicted with sickness, I trust you will call to mind that you have 
been no more so than thousands of others who have perfectly recovered. To effect your 
restoration now, my dear sir, requires that you engage in some active duties. You are 
in the condition that the distinguished Robert Hall was for a while, and to whom his 
friend Sir James McIntosh, who was educated a physician, gave the following advice, 
the advice that I give to you now, and urge you to follow it: ‘The remedy,’ says he, 
‘ in your case is prescribed by the plainest maxims of duty —you must act. Inactive con¬ 
templation, or lamentation, is a dangerous condition for minds of profound moral sensi¬ 
bility. ’ Let me therefore urge you to resume your seat in the Senate as an act of duty 
and a resource against disease. Such exercise is necessary for your health, and by it you 
may also serve others. 

“ Please show this letter to your brother, and perhaps to other friends, to whom I wish 
to say that a peculiarity of your nature Is, even when well (so great is your caution), to 
require a little urging. I hope, therefore, they will not fail to discharge their duty now 
in urging you to this course. I hope in a few days to hear you are daily engaged for an 
hour or two in the Senate.” 

The committee are satisfied Mr. Niles is at this time laboring under mental and phys¬ 
ical debility, but is not of “unsound mind,” in the technical sense of that phrase; that 
the faculties of his mind are under the control of his will; and they see no sufficient reason 
why he be not qualified and permitted to take his seat as a member of the Senate, and 
they most cordially unite with Dr. Bingham in the hope that such a course will be the 
means of usefulness and a resource against disease. 

Resolved, That the Hon. John M. Niles be permitted to take the oath of a Senator in 
the Congress of the United States, and to take his seat as a member of the Senate. 


218 


SENATE ELECTION CASES. 


[Special session of Senate, March, 1849.] 

JAMES SHIELDS, 

Senator from Illinois from March 6, 1849, till March 15, 1849, and from 
December 3,1849, till March 3,1855. 

Mr. Shields, an alien by birth, was elected to the Senate January 13,1849, for the term of six years 
from the 3d of March following. March 6 the oath was administered to him, and his credentials re¬ 
ferred to a select committee. The committee reported that it appeared that he was naturalized on 
the 21st day October, 1840, and reported the resolution “that the election of James Shields to be a 
Senator of the United States was void, he not having been a citizen of the United States the term of 
years required as a qualification to be a Senator of the United States.’ ’ The resolution was amended 
by adding to it the words “at the commencement of the term for which he was elected and passed March 
15. Mr. Shields was afterward elected for the same term. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Senate Journal, 2d sess. 30th Cong., 1848-’49. The debates on the case are found in 
the Appendix to the Congressional Globe, 2d sess. 30th Cong.,vol. 20,1848-’49, pages 326-351, special 
references to which are inserted below. 


Friday, March 2, 1849. 

Mr. Douglas presented the credentials of the Hon. Janies Shields, chosen a Senator by 
the general assembly of the State of Illinois for and during the term of six years from 
and after the 4th day of March, A. D. 1849; which were read. 

Monday, March 5, 1849. 

The Hon. James Shields, whose credentials were read the 2d of March, appearing for 
the purpose of being qualified, 

Mr. Walker submitted the following resolution; which was read: 

“ Resolved , That the certificate of election of the Hon. James Shields to a seat in this 
body be referred to the Committee on the Judiciary, with instructions to inquire into 
the eligibility of the said James Shields to a seat in the Senate of the United States as a 
member thereof. ’ ’ 

The Senate proceeded to consider the resolution by unanimous consent. 

Ordered , That the further consideration thereof be postponed until to-morrow. 

Tuesday, March 6, 1849. 

On motion by Mr. Douglas, the oath prescribed by law was administered to Mr. 
Shields. 

[On Mr. Douglas’s motion a debate ensued on the question whether Mr. Shields’s cre¬ 
dentials were such prima facie evidence of the necessary qualifications to a seat in the 
Senate as entitled him to be at once sworn, or whether they should be first referred to a 
committee; which debate is found on pages 327-329 of the Congressional Globe referred 
to in the head-note. ] 

The Senate proceeded to consider the resolution submitted yesterday by Mr. Walker 
in relation to the credentials of the Hon. James Shields; and, having been amended, it 
was agreed to, as follows: 

u Resolved , That the certificate of the election of the Hon. James Shields to a seat in 
this body be referred to a select committee, consisting of five members, with instructions 
to inquire into the eligibility of the said James Shields to a seat in the Senate of the 
United States as a member thereof. ’ ’ 

[On this amended resolution, offered by Mr. Butler, some remarks were made on the 
question whether the case should more properly go to the Committee on the Judiciary 
or to a select committee, which remarks are found on page 330 of the Congressional Globe 
before referred to.] 


Wednesday, March 7, 1849. 

Resolved, That the standing and select committees for the present special session of the 
Senate be constituted and appointed as follows, viz: 

******** 

Select committee on the eligibility of the Hon. James Shields as aSenator—Mr. Ben¬ 
ton, Mr. Felch, Mr. Webster, Mr. Mason, and Mr. Pearce. 


JAMES SHIELDS. 


219 


Thursday, March 8,1849. 

Mr. Walker submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

“ Hesolved, That the select committee to inquire into the eligibility of the Hon. James 
Shields to a seat in the Senate of the United States as a member thereof be authorized to 
send for persons and papers, and to call to their aid a person authorized to administer 
oaths, and to take the testimony of such persons as the committee may deem proper, and 
to procur e the proper authentication of any papers or records which the committee may 
at any time have before it relating to the subject-matter under its consideration. ’’ 

Mr. Walker presented a copy of the record of naturalization in the case of the Hon. 
James Shields; which was referred to the said select committee. 


REPORT OF COMMITTEE. 


Tuesday, March 13, 1849. 

Mr. Mason submitted the following report: 

The select committee to whom was referred the certificate of election of the Hon. James 
Shields to a seat in this body, with instructions to inquire into the eligibility of the said 
James Shields to such seat, report— 

That having given due notice to the said James Shields, he appeared before them, and 
they took the subject into consideration. 

They further report that the said certificate of election declares that the said James 
Shields was chosen a Senator of the United States by the legislature of the State of Illi¬ 
nois on the 13th day of January last: that it further appears, and is admitted by the said 
James Shields, that he is an alien by birth, and the only proof before the committee of 
the naturalization of the said James Shields in the United States is contained in the copy 
of a certificate of naturalization in the circuit court of Effingham County, in the said 
State of Illinois, which is annexed to and made part of this report; by which certificate 
it appears that the said James Shields was admitted by said court a citizen of the United 
States on the 21st day of October, 1840. 

The committee therefore report the following resolution: 

“ Resolved , That the election of James Shields to be a Senator of the United States was 
void, he not having been a citizen of the United States the term of years required as a 
qualification to be a Senator of the United States.” 

Ex parte James Shields. 

This day personally appeared in open court James Shields, and made and filed the 
following declaration: 

James Shields, being duly sworn in open court, declares on oath that he was bom in 
the county of Tyrone, in the kingdom of Ireland, on the 17th day of May, about the 
year 1810; that he emigrated to the United States of America while a minor, and con¬ 
tinued to reside in the United States three years next preceding his arriving at the age 
of twenty-one years, and has continued to reside therein since to the present time; he is 
now upwards of twenty-one years of age, and has resided upwards of five years within the 
State of Illinois aforesaid, one of the United States; that it is his intention to become a citi¬ 
zen of the United States, and to renounce forever all allegiance and fidelity to any foreign 
prince, potentate, state, or sovereignty, and particularly to the Sovereign of Great Britain 
and Ireland; and he further declares that for three years next preceding the present appli¬ 
cation it has been his bona fide intention to become a citizen of the United States. 

JAMES SHIELDS. 

Subscribed and sworn to in open court, this 21st day of October, 1840. 

WILLIAM H. BLAKELY, 

Cleric of said Court. 

This day personally appeared in open court James Shields, a free white person, upwards 
of twenty-one years of age, and applied to be admitted to become a citizen of the United 
States, and who, being duly sworn, declares on oath, in open court, that he will support 
the Constitution of the United States, and doth absolutely and entirely renounce and 
abjure all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty 
whatsoever, and particularly of the Sovereign of Great Britain and Ireland, whereof he 
was born a subject; and the court being satisfied that he has fully complied with the re¬ 
quirements of the laws of the United States on the subject of naturalization, and that he 
has resided within the United States upwards of five years and within the State of Illi¬ 
nois upwards of one year next preceding this application, and that during the whole of 
the time of his residence in the United States he has behaved as a man of good moral 


220 


SENATE ELECTION CASES. 


character, attached to the principles of the Constitution of the United States, and well 
disposed to the good order and happiness of the same, it is therefore ordered and ad¬ 
judged that the said James Shields he admitted a citizen of the United States, and that 
he is hereby admitted as such. 

State of Illinois, 

Effingham County , ss: 

I, John S. Kelly, clerk of the circuit court in and for said county, certify that the 
foregoing is a true copy of the record of naturalization in the case of James Shields, en¬ 
tered, as appears upon the record, on the 21st day of October, A. D. 1840. 

Given under my hand and private seal (there being no official seal yet provided for 
said court at Effington) this 31st day of January, A. D. 1841. 

[seal.] JOHN S. KELLY, Clerk. 

[Mr. Mason, when he presented the report, made a statement that a communication in 
writing to the committee from General Shields had, owing to some inadvertence, never 
reached them, but that he had since seen it, and that it might be seen by Senators; 
which statement is found on page 332 of the Congressional Globe referred to.] 

The Senate, by unanimous consent, proceeded to consider the resolution reported by the 
committee. 

Mr. Foote moved that the further consideration of the resolution be postponed until 
the first Monday in December next.* 

[The debates on the adoption of the resolution and on Mr. Foote’s motion are found on 
pages 333-336 of the Congressional Globe.] 

After debate, 

Ordered , That the further consideration of the resolution be postponed until to¬ 
morrow. 


Wednesday, March 14,1849. 

The Senate having before it the motion made yesterday, to postpone until the first 
Monday in December next the resolution in relation to the election of James Shields, a 
debate ensued, after which Mr. Foote withdrew the motion, f 

[The debate on this motion is found on pages 337, 338 of the Congressional Globe.] 

The Senate resumed the consideration of the resolution reported by the select com¬ 
mittee in relation to the election of James Shields; and, 

After debate, 

On motion by Mr. Cass that the resolution lie on the table, it was determined in the 
negative—yeas 15, nays 34. 

On motion by Mr. Cass, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Bradbury, Cass, Dickinson, Douglas, 
Downs, Fitzpatrick, Foote, Hale, Hamlin, Jones, Rusk, Soul6, Sturgeon, Turney, and 
Yulee. 

Those who voted in the negative are Messrs. Atchison, Badger, Baldwin, Bell, Berrien, 
Borland, Bright, Butler, Calhoun, Chase, Clarke, Corwin, Davis of Massachusetts, Davis 
of Mississippi, Dawson, Felch, Greene, Hunter, Mangum, Mason, Miller, Morton, Norris, 
Pearce, Phelps, Seward, Smith, Spruance, Underwood, Upham, Wales, Walker, Webster, 
and Whitcomb. 

On motion by Mr. Calhoun to amend the resolution by adding thereto ‘ 1 at the com¬ 
mencement of the term for which he was elected, ’ ’ 

After debate, 

On motion by Mr. Hale that the further consideration of the resolution be postponed 
, until to-morrow, it was decided in the affirmative—yeas 24, nays 23. 

[The debates on the last two motions are found on pages 338-342 of the Congressional 
Globe. They include a discussion of the question whether the election of General Shields 
was void or voidable , and whether, in case the resolution as amended should pass the 
Senate, the governor of Illinois would have power to fill the vacancy by appointment. ] 

On motion by Mr. Douglas, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Atchison, Bell, Borland, Bradbury, 
Butler, Cass, Chase, Douglas, Downs, Felch, Fitzpatrick, Foote, Hale, Hunter, Jones, 
Mason, Norris, Rusk, Seward, Soul6, Sturgeon, Turney, Underwood, and Yulee. 

Those who voted in the negative are Messrs. Badger, Berrien, Bright, Calhoun, Clarke, 
Cooper, Corwin, Davis of Massachusetts, Davis of Mississippi, Dawson, Dickinson, Greene, 
Mangum, Miller, Morton, Pearce, Smith, Spruance, Upham, Wales, Walker, Webster, 
and Whitcomb. 


♦This motion is taken from the Congressional Globe. It does not appear in the Journal. 
tTfcis proceeding is taken from the Congressional Globe. It does not appear in the Journal. 



JAMES SHIELDS. 221 

The Hon. James Shields having handed to the Vice-President a letter tendering his 
resignation, 

Mr. Hale called for the reading of the letter, and, no objection being made, the letter 
was read. 

Mr. Hale submitted the following resolution for consideration: 

“Resolved, That the Vice-President be requested to inform the executive of the State of 
Illinois that the Hon. James Shields has this day resigned his seat in the Senate of the 
United States.” 

On motion by Mr. Berrien, 

Ordered, That the consideration of the resolution be postponed until to-morrow. 

Thursday, March 15, 1849. 

On motion by Mr. Turney that the Senate proceed to the consideration of the resolu¬ 
tion submitted by Mr. Hale the 14th instant, requesting the Vice-President to inform 
the executive of the State of Illinois that James Shields has this day resigned his seat 
in the Senate of the United States, 

After debate [a debate on the question whether the resolution offered by Mr. Hale or 
the resolution reported by the committee should be first considered is found on pages 
342-346 of the Congressional Globe], 

On motion by Mr. Davis, of Mississippi, that the motion lie on the table, it was de¬ 
termined in the affirmative—yeas 33, nays 14.* 

On motion by Mr. Douglas, the yeas and nays being desired by one-fifth of the Sen- 
tors present, 

Those who voted in the affirmative are Messrs. Atchison, Badger, Baldwin, Bell, Ber¬ 
rien, Borland, Bright, Butler, Calhoun, Clark, Cooper, Corwin, Davis of Massachusetts, 
Davis of Mississippi, Dawson, Dickinson, Greene, Hamlin, Hunter, Mangum, Mason, 
Miller, Phelps, Seward, Smith, Spruance, Sturgeon, Upham, Wales, talker, Webster, 
Whitcomb, and Yulee. 

Those who voted in the negative are. Messrs. Cass, Chase, Douglas, Downs, Felch, 
Fitzpatrick, Foot, Hale, Jones, Norris, Rusk, Soul4, Turney, and Underwood. 

On motion by Mr. Mason, the Senate resumed the consideration of the resolution re¬ 
ported by the select committee in relation to the election of James Shields, and, 

After debate [the debate is found on pages 346, 347 of the Globe], 

On motion of Mr. Davis, of Mississippi, that it lie on the table, it was determined 
in the negative—yeas 16, nays 32. f 

On motion by Mr. Turney, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Cass, Chase, Davis of Mississippi, 
Douglas, Downs, Fitzpatrick, Foote, Hale, Jones, Norris, Rusk, Soul6, Sturgeon, Turney, 
Underwood, and Yulee. 

Those who voted in the negative are Messrs. Badger, Baldwin, Bell, Berrien, Borland, 
Bradbury, Bright, Butler, Calhoun, Clarke, Cooper, Corwin, Davis of Massachusetts, 
Dawson, Dickinson, Felch, Greene, Hamlin, Hunter, Mangum, Mason, Miller, Morton, 
Phelps, Seward, Smith, Spruance, Upham, Wales, Walker, Webster, and Whitcomb. 

[A further debate on the adoption of the resolution reported by the committee is 
found on pages 347-351 of the Globe.] 

On the question to agree to the amendment proposed by Mr. Calhoun the 14th in¬ 
stant, it was determined in the affirmative. 

On motion by Mr. Underwood further to amend the resolution, by striking out the 
words ‘‘ was void, ’ 7 and inserting in lieu thereof the following: ‘‘ does notentitle him to 
a seat as such in this body,” it was determined in the negative—yeas 16, nays 28. 

On motion by Mr. Underwood, the yeas and nays being desired by one-fifth of the 
Senators present, 

Those who voted in the affirmative are Messrs. Atchison, Bradbury, Chase, Davis of 
Mississippi, Douglas, Downs, Felch, Fitzpatrick, Foote, Jones, Norris, Rusk, Soul6, 
Sturgeon, Underwood, and Yulee. 

Those who voted in the negative are Messrs. Badger, Baldwin, Bell, Berrien, Borland, 
Bright, Butler, Calhoun, Clarke, Cooper, Corwin, Davis of Massachusetts, Dawson, Dick¬ 
inson, Greene, Hamlin, Hunter, Mangum, Mason, Miller, Morton, Phelps, Seward, 
Smith, Spruance, Upham, Wales, and Webster. 

On motion by Mr. Douglas to amend the resolution by striking out all after the word 
‘ ‘ resolved, 7 7 and inserting the following in lieu thereof: 

“That the Vice-President be requested to notify the executive of the State of Illinois 
that the Hon. James Shields has resigned his seat in this body, 77 

It was determined in the negative- yeas 12, nays 32. 


* The Congressional Globe gives this vote yeas 20, nays 15. 
f The Congressional Globe gives this vote yeas 18, nays 82. 



222 


SENATE ELECTION CASES. 


On motion by Mr. Douglas, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Cass, Chase, Douglas, Downs, Fitzpat¬ 
rick, Foote, Jones, Rusk, Soul6, Sturgeon, Underwood, and Yulee. 

Those who voted in the negative are Messrs. Atchison, Badger, Baldwin, Bell, Berrien, 
Borland, Bradbury, Bright, Butler, Calhoun, Clarke, Cooper, Corwin, Davis of Massa¬ 
chusetts, Davis of Mississippi, Dawson, Dickinson, Greene, Hamlin, Hunter, Mangum, 
Mason, Miller, Morton, Phelps, Seward, Smith, Spruance, Upham, Wales, Walker, and 
Webster. 

No further amendment being proposed, the resolution was then agreed to, as follows: 

“ Resolved , That the election of James Shields to be a Senator of the United States was 
void, he not having been a citizen of the United States the term of years required as a 
qualification to be a Senator of the United States at the commencement of the term for 
which he was elected. ’ ’ 

On motion by Mr. Webster, 

Ordered , That the Vice-President be requested to transmit to the governor of the State 
of Illinois a copy of the said resolution, attested by the Secretary of the Senate. 


YULEE VS. MALLORY. 


223 


[Thirty-second Congress—First session.] 

YULEE vs. MALLORY, 
of Florida. 


January 13,1851, the general assembly of Florida met in convention to elect a Senator for the term 
Beginning March 4,1851. A viva voce vote being taken pursuant to the requirements of the consti¬ 
tution of the State, 29 members responded David L. Yulee and 29 responded blank, whereupon the 
presiding officer declared that there had been no election. January 15 they again met in con¬ 
vention, when 31 members responded R. S. Mallory and 27 voted for Mr. Yulee and others, where¬ 
upon the presiding officer declared Mr. Mallory to be duly elected. Neither party appeared to take 
the seat during the special session of the Senate in March, 1851. March 8 a letter from Mr. Yulee was 
read stating that he should contest the seat of Mr. Mallory, declared to be elected. December 1, 
1851, the credentials of Mr. Mallory were presented and he took the oath. On the same day the letter 
of Mr. Yulee with accompanying documents was referred to a select committee of five. August 
21, 1852, the committee reported that there was in force in that State, at the time of the election, the 
following resolution: “ Resolved , That a majority of all the members-elect composing the two houses 
of the general assembly shall be necessary to determine all elections devolving upon that body”; 
that this resolution was joint in fact, though not in form, and was sufficient, though without the 
forms of law usual in legislation, to regulate the “manner of holding elections”; that the whole 
number of members-elect in this general assembly was 59, and that Mr. Yulee receiving but 29 votes 
on the first ballot, did not obtain a sufficient number to elect him; that they recommend the adop¬ 
tion of the following resolution : “ Resolved ,, That the Hon. Stephen R. Mallory was duly elected 
a member of the Senate of the United States from the 3d day of March, 1851.” The resolution passed 
the Senate August 27, without a dissenting vote. 

Mr. Yulee’s claim to the seat was on the ground that the resolution of the legislature of Florida 
given above was not such legislation as is requisite in order to change the law of a State, and that 
the law in Florida had always been that the majority of a quroum of the members composing the 
legislature could elect, and was at that time the law; that the votes of the 29 voting blank should not 
be counted at all, and that he being the only qualified person voted for, and receiving 29 votes, had 
a majority of the legal votes, and more than a majority of a quorum, which majority was 16. 

The history of the case here given consists of the report of the committee from Senate Reports, 1st 
sess. 32d Cong., vol. 2,1851-’52, Report No. 349; a transcript of the proceedings of the Senate relating to 
the case on August 27,1852 (being the day on which the case was discussed in the Senate), from the 
Senate Journal, 1st sess. 32d Cong., 1851-52; and a transcript of the proceedings of the Senate relating 
to the payment of mileage and per diem to Mr. Yulee from Senate Journals, 1st and 2d sess. 32d 
Cong. 

The debates in the case are found on pages 1170-1176 of the Appendix to Congressional Globe, vol. 
25,1st sess. 32d Cong., 1851-52. A reference to the debates on the question of payment to Mr. Yulee 
is inserted below. The documents accompanying the case which were printed are found in Senate 
Miscellaneous, 1st sess. 32d Cong., 1851-’52, Nos. 109 and 110. 

The minor proceedings of the Senate relating to the case previous to the day of its discussion in 
the Senate have been omitted in making up the history of this case. 


REPORT OF COMMITTEE. 

Committee appointed December 2, 1851.—Messrs. Berrien*, Bright, Davis, Mason, 
and Pearce. 


In the Senate of the United States. 

August 21,1852.—Ordered to be printed. 

Mr. Bright made the following report: 

The select committee to whom was referred the memorial of the Hon. David L. Yulee, 
claiming the seat in the Senate held by the Hon. Stephen R. Mallory, from the State of 
Florida, together with sundry documents therewith, report: 

That they have examined the law and the facts connected with this case, they have 
heard the contestant by able counsel, and the sitting member in person, and after giving 
to each that consideration which the importance of the questions embraced merits, find 
that on the 13th day of January, 1851, the general assembly of Florida met in convention 
of the two houses to choose a Senator of the United States to supply a vacancy which 
would occur before another constitutional session. 

The president of the senate presided, and upon a call of the roll a poll viva voce was 
taken of the members pursuant to the requirements of the constitution of the State, and 
29 responded David L. Yulee and 29 blank, whereupon the presiding officer declared 
that no choice had been made; they then proceeded to a second and third vote, with 
substantially the same result. On the 15th of January they again met in convention 
for the same purpose, and upon a call of the roll 31 members responded R. S. Mallory, 
and 27 votes for Mr. Yulee and others; whereupon the president declared Mr. Mallory 
to be duly elected. 

* February 2,1862, Mr. Berrien resigned and Mr. Badger was appointed in his place February 3. 






224 


SENATE ELECTION CASES. 


Neither the record nor any other evidence in the case shows that objection was made 
to any of those proceedings, or that their legality was questioned in or out of the con¬ 
vention at the time. 

The certificate of election was granted to Mr. Mallory, and he having been qualified, 
now holds the seat. 

Mr. Yulee contests his right to the seat on the ground that he was himself elected at 
the first vote, because there was a quorum of each house present as appears by the jour¬ 
nals, and he, being the only qualified person voted for, had a majority of the legal votes. 
Those who responded “blank,” he contends, voted for no qualified person, and waived 
their electoral rights as effectually as if they had been silent. 

Mr. Mallory opposes to this inference a resolution of the two houses adopted in 1845, 
by concurrent vote, which has never been rescinded, and is in the following words: 

“ Resolved , That a majority of all the members-elect composing the two houses of gen¬ 
eral assembly shall be necessary to determine all elections devolving upon that body. , ’ 

The whole number of members-elect was 59, and Mr. Yulee, not having a majority of 
that number, was not elected. From the facts disclosed it is quite apparent that the 
convention took this view of the matter. 

In deciding the questions which are raised out of the facts, the Constitution of the 
United States must, to the extent of its provisions, prevail over all other authority. That 
instrument gives to each State the right to elect two Senators. Article I, section 4, is in 
these words: “The times, places, and manner of holding elections for Senators and Rep¬ 
resentatives shall be prescribed in each State by the legislature thereof.” 

The words of the third section in the same article are: “The Senate of the United 
States shall be composed of two Senators from each State, chosen by the legislature 
thereof, for six years.” 

The first question, then, which arises is, What constitutes the legislature of Florida? 
For that, and that only, has the right to make the choice. The Constitution of the 
United States, Article I, section 1, says: “All legislative powers herein granted shall be 
vested in a Congress of the United States, which shall consist of a Senate and House of 
Representatives. ’ ’ The constitution of Florida declares that ‘ ‘ the legislative power of 
the State shall be vested in two distinct branches, the one to be styled the senate, the 
other the house of representatives, both together the general assembly.” These au¬ 
thorities leave no doubt that the two houses constitute the legislature of Florida, which 
holds the unqualified right under the Constitution of the United States to elect the Sen¬ 
ators for the State. 

Has this body executed the trust confided to it in such a manner as to satisfy the terms 
of the Constitution ? The time, the place, and the manner of holding the election are 
all to be prescribed by it. To the time and place no objection is made, but the validity 
of the manner is questioned. 

No mode of election is prescribed by the Constitution, but this duty is left to the dis¬ 
cretion of the several legislatures of the States. In carrying out the power some elect 
by a concurrent vote of the two branches, the one having a negative upon the action of 
the other; others elect in a convention of the two houses, in which case (as far as your 
committee are advised) a majority prevails. 

If numbers be regarded as a material element in such elections, it is manifest that in 
the same body of men different results may be produced according as one mode or the 
other is pursued. There may be in convention a majority in favor of a candidate, mak¬ 
ing his success by this mode certain, while with the same number in his favor he might 
be defeated in one of the houses if a concurrent vote is required; and such cases have 
occurred. 

Again, it may be observed that the power given to the legislature to regulate the time, 
place, and manner applies as well to Representatives as to Senators; and here again are 
other diversities in the manner of exercising it. Some States elect by a plurality of 
votes, others by a majority, and others have required at the first trial a majority and a 
plurality afterward. Some again (until Congress made a law upon the subject) elected 
by general ticket; others, either by single districts or districts entitled to more than one, 
according to convenience. None of those modes of electing Senators or Representatives 
has been held unconstitutional, but members have uniformly been admitted to their 
seats whether elected in one or other of these modes. 

These practices have at all times existed, and have uniformly been recognized as consti¬ 
tutional, proving clearly that the discretion reposed in the legislatures of the States may 
be exercised in a diversity of ways and yet be a sufficient compliance with the require¬ 
ments of the Constitution. 

The legislature of Florida adopted a course different from any of these by requiring 
a majority of all the members-elect in convention to make choice of a Senator. This 
rule is as unobjectionable and harmonizes as well with the Constitution as the modes 
pursued elsewhere. The right of the State to adopt such a rule has not been directly 


YULEE VS. MALLORY. 


225 


questioned, but the legality of the means by which it was executed is denied. This 
point is the chief ground of controversy between the parties. On the one hand, the 
validity of the resolution above cited is denied; on the other, it is alleged that if the reso¬ 
lution was not in force a usage equivalent to it existed, which was equally obligatory 
upon the convention. This again is denied. 

We will first consider the character, force, and effect of the resolution. 

The first objection to it is that it contains no evidence on its face that it is a joint 
act of the two houses. This is true; but the journals place this matter in the clearest 
light. While there is an apparent defect in form there was none in fact. It was passed 
in one house, sent to the other, and there agreed to by a concurrent vote; it is a clear, 
unequivocal expression of the will of each house. No words added to it can make it a 
stronger or more complete expression of that will. It is also in substance joint, since it 
is the will of both houses expressed in the same words. Moreover it is permanent, 
being designed as a rule of action for both, by the united will of both, and it must stand 
as such until both concur in repealing or rescinding it. 

The next objection is that it has not the forms of law usual in legislation, because it 
is not signed by the officers of each house or approved by the governor. It is a suffi¬ 
cient reply to state that the Constitution does not require the legislature to regulate the 
manner of election by law; it may be by resolution, either joint or several, or in any 
other method which commands the agreement of both houses of the legislature. The 
form of action being discretionary and the substance right, the objection becomes im¬ 
material. 

The will of the two houses, when ascertained by vote in their respective chambers, is 
for this purpose a sufficient law, because they alone are empowered to prescribe the man¬ 
ner of choosing in such mode or by such means as they please. On this point a State 
constitution can neither control nor modify that of the United States, for the latter is 
the supreme law. 

This resolution being joint in fact, though not in the usual form, was a standing order 
of the two houses, in force until they by concurrent vote should rescind or modify it. 
It was consequently the rule prescribing the manner of election to the two houses when 
they met in convention on the 13th of January, 1851, and they were bound to proceed 
according to its requirements. 

This being the view which the committee take of the case, there is no necessity for 
pursuing the subject further, since Mr. Yulee did not obtain votes sufficient to elect him. 
It may not, however, be out of place to observe that the facts disclosed render it evi¬ 
dent that the two houses entered the convention with the full belief that no number 
short of a majority of all the members-elect could make a choice of a Senator, and con¬ 
ducted their proceedings under the conviction that they were bound to adhere to the 
established practice. There is also reason for believing that the members of the con¬ 
vention assembled and acted under the conviction that blank votes would be counted, 
inasmuch as the two houses on a former occasion and in another election had so decided. 
If blank votes are beyond doubt a nullity; if the resolution is to be regarded of no effect, 
and we are brought to the question, under these circumstances, whether Mr. Yulee is duly 
elected, it seems to us difficult to maintain the affirmative of that proposition upon the 
facts before us. If the members were misled on both of these material points by as¬ 
suming that their previous doings afforded safe and certain rules of action, then they 
were misguided by what they had a right to consider as authority, and must have acted 
under a misconception of right which stood, as they supposed, unquestioned. If this 
be so they stand substantially in the condition of an elector who votes for a person dis¬ 
qualified, believing him to be qualified. The vote in such a case, though unavailing, is 
not rejected from the count. 

The only remedy which we can see for an election carried on through misapprehension 
from such well-founded causes is to set it wholly aside and open the way to a new choice; 
but in our view of the case there is no occasion to consider what ought to be done upon 
such a state of facts. 

The committee ought perhaps to notice one other feet which has been relied upon. 
Since the adoption of the resolution the journals show a case in which a person who 
was declared not to be elected in convention because he had not the number of votes 
required was afterward declared elected by a concurrent resolution of the two houses. 
All that need be said of this transaction is that it passed the senate through the mis¬ 
apprehension of one of its members, as the journal proves, and was manifestly a viola¬ 
tion of the resolution. It is equally manifest that the members of both houses did not 
regard it as affecting in any way the standing order, for its provisions were at all times 
subsequently observed as obligatory in convention. No argument is necessary to prove 
that such an irregular proceeding could have no effect upon the order either to modify 
or rescind it. 

With these views the committee recommend the adoption of the following resolution: 

Resolved , That the Hon. Stephen R. Mallory was duly elected a member of Ihe Senate 
of the United States from the 3d day of March, 1851. 

S. Doc. 11-15 



226 


SENATE ELECTION CASES. 


[Extract from Senate Journal, August 27, 1852.] 

On motion by Mr. Weller that the Senate proceed to the consideration of the resolu¬ 
tion reported by the select committee to whom was referred the memorial of the Hon. 
David L. Yulee, claiming the seat in the Senate held by the Hon. Stephen R. Mallory, 
it was determined in the affirmative—yeas 23, nays 21. 

On motion by Mr. Weller, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Adams, Atchison, Bayard, Bradbury, 
Bright, Brooke, Charlton, Clemens, Dawson, Felch, Gwin, Hale, Houston, Hunter, James, 
Jones of Iowa, King, Seward, Stockton, Sumner, Wade, Walker, and Weller. 

Those who voted in the negative are Messrs. Badger, Bell, Borland, Brodhead, Clarke, 
Davis, Dodge of Wisconsin, Dodge of Iowa, Douglas, Downs, Fish, Hamlin, Mangum, 
Miller, Morton, Pearce, Rusk, Smith, Spruance, Underwood, and Upham. 

The Senate proceeded to consider the resolution submitted by Mr. Morton the 24th 
August, to give leave to the Hon. David L. Yulee to be heard in person at the bar of the 
Senate; and, 

On motion by Mr. Weller that the resolution lie on the table, it was determined in the 
negative—yeas 17, nays 29. 

On motion by Mr. Gwin, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Adams, Bayard, Bradbury, Clarke, 
Clemens, Downs, Fish, Gwin, Houston, James, Jones of Iowa, Norris, Pearce, Rusk, Spru¬ 
ance, Stockton, and Weller. 

Those who voted in the negative are Messrs. Atchison, Badger, Bell, Borland, Brodhead, 
Brooke, Butler, Cass, Charlton, Dawson, De Saussure, Dodge of Wisconsin, Dodge of Iowa, 
Douglas, Felch, Geyer, Hamlin, Hunter, King, Mangum, Mason, Meriwether, Miller, 
Morton, Seward, Shields, Underwood, Upham, and Wade. 

On motion by Mr. Pearce to amend the resolution by adding thereto “ for two hours,” 
it was determined in the affirmative—yeas 31, nays 21. 

On motion by Mr. Badger, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Adams, Atchison, Bradbury, Bright, 
Butler, Cass, Clarke, Clemens, Davis, Dawson, Dodge of Wisconsin, Dodgeoflowa, Downs, 
Felch, Fish, Foote, Hale, Houston, Hunter, James, Jones of Iowa, King, Meriwether, 
Miller, Norris, Pearce, Pratt, Smith, Stockton, Sumner, and Weller. 

Those who voted in the negative are Messrs. Badger, Bayard, Borland, Brodhead, 
Brooke, Charlton, Chase, Cooper, De Saussure, Douglas, Geyer, Gwin, Hamlin, Mangum, 
Mason, Morton, Rusk, Spruance, Underwood, Upham, and Wade. 

The resolution submitted by Mr. Morton was then agreed to, as follows: 

“ Resolved , That the Hon. D. L. Yulee, who contests the seat of the Hon. S. R. Mal¬ 
lory, have leave to be heard in person at the bar of the Senate for two hours. ’ ’ 

On the question to agree to the resolution reported by the select committee, as fol¬ 
lows: 

“ Resolved , That the Hon. Stephen R. Mallory was duly elected a member of the Sen¬ 
ate of the United States from the 3d day of March, 1851,” 

A motion was made by Mr. Mangum that the further consideration thereof be postponed 
to the first Tuesday after the second Monday in December next; and it was determined 
in the negative—yeas 18, nays 37. 

On motion by Mr. Bradbury, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Badger, Bayard, Bell, Borland, Brod¬ 
head, Cooper, De Saussure, Dodge of Wisconsin, Dodge of Iowa, Douglas, Downs, Fish, 
Hamlin, Mangum, Meriwether, Miller, Morton, and Upham. 

Those who voted in the negative are Messrs. Adams, Atchison, Bradbury, Bright, 
Brooke, Butler, Cass, Charlton, Chase, Clarke, Clemens, Davis, Dawson, Felch, Foote, 
Geyer, Gwin, Hale, Houston, Hunter, James, Jones of Iowa, King, Mason, Norris, Pratt, 
Rusk, Seward, Smith, Spruance, Stockton, Sumner, Toucey, Underwood, Wade, Walker 
and Weller. 

Mr. Y ulee having addressed the Senate, 

On motion, Mr. Morton was excused from voting on the resolution. 

On the question to agree to the resolution, it was determined in the affirmative— 
yeas 41. 

On motion by Mr. Pratt, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Badger Bayard, Bell, Bradbury, Bright, 
Brooke, Butler, Cass, Charlton, Clemens, Cooper, Davis, Dawson, De Saussure, Dodge of 


YULEE YS. MALLORY. 


227 


Wisconsin, Dodge of Iowa, Downs, Felch, Fish, Foote, Geyer, Gwin, Houston, Hunter, 
James, Jones of Iowa, King, Mason, Meriwether, Miller, Norris, Pratt, Rusk, Seward, 
Smith, Soule, Spruance, Sumner, Toucey, Underwood, and Weller. 

COMPENSATION OF ME. YULEE. 

Monday, August 30, 1852. 

Mr. Morton submitted the following resolution; which was read: 

“ Resolved , That there be paid out of the contingent fund of the Senate to the Hon. 
David L. Yulee a sum equal to the amount of mileage and per diem compensation of a 
Senator from the commencement of the present session to the 27th instant, the day on 
which the Senate decided that the Hon. Stephen R. Mallory, whose seat in the Senate 
was claimed by him, was duly elected a member of the Senate from the State of Florida.’’ 

Tuesday, August 31, 1852. 

The Senate proceeded to consider the resolution submitted by Mr. Morton the 30th 
instant, directing a payment to the Hon. David L. Yulee from the contingent fund; 
and, 

After debate. 

On motion by Mr. Morton, 

Ordered , That it lie on the table. 

[Some remarks against the passage of this resolution are found on page 2488 of the 
Congressional Globe, vol. 24, part 3, 1st sess. 32d Cong., 1851-’52.] 

FRIDAY, February 25, 1853. 

Mr. Morton submitted the following resolution; which was read. [Resolution given 
above.] 

Monday, March 7, 1853. 

Mr. Morton submitted the following resolution; which was read. [Resolution given 
above. ] 

Thursday, March 17, 1853. 

The Senate proceeded to consider the resolution submitted by Mr. Morton the 7th in¬ 
stant, to allow per diem and mileage to the Hon. David L. Yulee during the time he 
contested the seat of the Hon. Mr. Mallory in the Senate, and on the question, “ Shall 
the resolution pass? ” it was determined in the affirmative—yeas 23, nays 19. 

On motion by Mr. Houston, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Badger, Borland, Brodhead, Butler, 
Cooper, Dodge of Wisconsin, Dodge of Iowa, Douglas, Evans, Everett, Fitzpatrick, 
Gwin, Hunter, James, Jones of Iowa, Mason, Morton, Sebastian, Seward, Shields, 
Soul6, Sumner, and Walker. 

Those who voted in the negative are Messrs. Adams, Atchison, Atherton, Bayard, 
Benjamin, Bright, Chase, Geyer, Hamlin, Houston, Norris, Pearce, Phelps, Rusk, Stu¬ 
art, Thompson of Kentucky, Thompson of New Jersey, Weller, and Wright. 

[A debate on the adoption of the resolution is found on pages 280-283 of the Appen* 
dix to Congressional Globe, vol. 26, 2d sess. 32d Cong.] 


228 


SENATE ELECTION CASES, 


[Thirty-fourth Congress—First session.] 

LYMAN TEUMBULL, 

Senator from Illinois from March 4, 1855, to March 3, 1873. 

June 7,1852, Mr. Trumbull was elected a judge of the supreme court of Illinois for a term of nine 
years, and was duly commissioned June 24. May 19,1853, he resigned this office, to take effect July 
4,1853. February 8,1855, he was elected to the Senate of the United States for the term beginning 
March 4,1855. The constitution of Illinois provided that the judges of the supreme court should not 
be eligible to any office of public trust or profit in the United States during the term for which they 
were elected, nor for one year thereafter; and that all votes for them, for any elective office, given 
by the general assembly-, should be void. When Mr. Trumbull’s credentials were presented in the 
Senate, a protest of members of the legislature was presented, protesting against the legality of the 
election on the ground that it was void by virtue of the provision of the constitution referred to. 
The subject was referred to the Committee on the Judiciary, who reported that there was such a 
division of opinion as to render it proper to refer the subject to the Senate, and asked to be excused, 
which report was accepted by the Senate. A resolution declaring Mr. Trumbull entitled to his seat 
was then introduced and passed the Senate by a vote of 35 yeas to 8 nays. The arguments show 
that the Senators voting in favor of the legality of the election did so from different grounds, some 
proceeding upon the ground that this case did not come within the meaning of the clause of the 
State constitution referred to, because Mr. Trumbull had resigned the office of judge more than a 
year before his election to the Senate; and others proceeding upon the ground that a State cannot 
superadd qualifications of a Senator to those required by the United States Constitution. Extracts 
from the debates given below will show the lines of the different arguments. 

The history of the case here given consists of the report of the committee taken from Senate Re¬ 
ports, 34th Cong., 1st sess. vol. 1,1855-’56, report No. 15; the proceedings of the Senate relating to the 
case from the Senate Journal, 1st and 2d sess. 34th Cong., 1855-’56; and extracts from the debates 
found in the Congressional Globe, part 1, 1st sess. 34th Cong.,1855-’56. 

Special references to the debates of each day are inserted below. 

REPORT OF COMMITTEE, CONTAINING THE DOCUMENTS PRINTED IN THE CASE. 

[The committee consisted of Messrs. Butler (chairman), Toucey, Bayard, Geyer, 
Toombs, and Pugh.] 


In the Senate of the United States. 

February 27, 1856. —Submitted, agreed to, and ordered to be printed with the protest 

and other papers. 

Mr. Butler made the following report: 

The Committee on the Judiciary, to whom were referred the “Protest of certain sena¬ 
tors and representatives of the legislature of the State of Illinois against the election of 
the Hon. Lyman Trumbull as a Senator of the United States,” and other papers, report: 

That it has been under consideration and discussion by the committee, and there being 
such a division of opinion as to render it proper, in their judgment, to refer the subject 
to the Senate, ask to be discharged from the further consideration thereof. 


Certified copy of the resignation of Lyman Trumbull of the office of justice of the supreme court 

of the State of Illinois. 

Alton, May 19, 1853. 

Sir: I am induced, by considerations of a personal and private character, to resign the 
office of justice of the supreme court; but to allow time for the election of a person to 
succeed me, so that no public inconvenience may result from a vacancy on the bench I 
hereby tender my resignation of said office, to take effect on the 4th day of July next. 

Yours, very respectfully, 


His excellency Joel A. Matteson, 

Governor of Illinois. 


LYMAN TEUMBULL. 


United States of America, 

State of Illinois, ss: 

I, Alexander Stame, secretary of state of the State of niinois, do hereby certify that 
the foregoing is a true and correct copy of Lyman Trumbull’s resignation, filed in the 
secretary’s office, May 20, 1853. 

And I further certify that Walter B. Scates was elected to fill said vacancy and en¬ 
tered upon the discharge of the duties of said office, July 13, 1853. 

In testimony whereof, I have hereunto set my hand and affixed the seal of State this 
0th day of November, A. D. 1855. ’ 

[L. S.] ALEXANDER STARNE, 

Secretary of State. 


LYMAN TRUMBULL. 


229 


Certificate of Joel A. Matteson, governor of the State of Illinois , relative to the election of 

Lyman Trumbull to be a Senator of the United States , and also to the office of justice of the 

supreme court of that State. 

Executive Department, State of Illinois, 

November 1, 1855. 

I, Joel A. Matteson, governor of the State of Illinois, do hereby certify that it appears 
of record that on the 8th day of February, A. D. 1855, the two houses of the legislature 
of the State of Illinois met in convention and proceeded to vote for the election of a Sen¬ 
ator for said State to the Senate of the United States; that upon the final vote Lyman 
Trumbull received 51 votes, Joel A. Matteson received 47 votes, and Archibald Williams 
received 1 vote; and the Speaker of the House of Representatives thereupon declared 
Lyman Trumbull elected a Senator of the United States for the State of Illinois for six 
years from the 4th day of March, A. D. 1855. 

That it further appears from record that the said Lyman Trumbull was elected, on the 
7th day of June, A. D. 1852, a justice of the supreme court of the State of Illinois for a 
term of nine years; that on the 24th day of June, A. D. 1852, he was duly commissioned 
as justice for the term aforesaid, commencing on the first Monday of June, A. D. 1852, 
and ending on the first Monday of June, A. D. 1861; that he was sworn and entered upon 
the discharge of his duties appertaining to said office; that the constitution of the State of 
Illinois contains the following provision, to wit: 

“The judges of the supreme and circuit courts shall not be eligible to any other office 
of public trust or profit, in this State or the United States, during the term for which 
they are elected, nor for one year thereafter; all votes for either of them, for any elective 
office (except that of judge of the supreme or circuit court) given by the general assembly 
or people, shall be void.” 

All of which, together with the legality of said election, are respectfully submitted to 
the Senate of the United States. 

J. A. MATTESON. 

By the governor: 

[l. s.] ALEXANDER STARNE, 

Secretary of State. 

To the President of the Senate 

of the United States. 

United States of America, 

State of Illinois , ss: 

I, Alexander Starne, secretary of state for the State of Illinois, do hereby certify that 
Lyman Trumbull was, on the seventh day of June, A. D. 1852, elected judge of the su¬ 
preme court of the State of Illinois, and was duly commissioned as such for the term of 
nine years from the 24th day of June, 1852; that he took upon himself the oath of office, 
and entered upon the discharge of the duties of the same; that said term of office for 
which he was elected is unexpired, and will not expire until the 27th day of June, 1861. 

In testimony whereof, I have hereunto set my hand and affixed the seal of said State, 
this 24th day of February, A. D. 1855. 

[ L . s.] ALEXANDER STARNE, 

Secretary of State. 


Protest of certain senators and representatives of the legislature of the State of Illinois against 
the election of Lyman Trumbull as a Senator of the United States. 

To the honorable the Senate of the United States: 

The undersigned, senators and representatives of the people of the State of Illinois in 
the legislature thereof, respectfully represent: That at a meeting of both houses of said 
legislature, in general assembly convened, on the 8th day of February, 1855, for the pur¬ 
pose of electing a Senator for said State to the Senate of the United States for six years 
from the 4th of March, 1855, 51 votes were cast for Lyman Trumbull, 47 votes for Joel 
A. Matteson, and 1 vote for Archibald Williams, and that one member of said legisla¬ 
ture was absent. 

They further represent that the constitution of the State of Hlinois contains the fol¬ 
lowing provision in the tenth section of the fourth article thereof: 

“The judges of the supreme and circuit courts shall not be eligible to any other office 
or public trust of profit in this State, or the United States, during the term for which 
they are elected, nor for one year thereafter; all votes for either of them, for any elective 
office, except that of judge of the supreme or circuit courts, given by the general assem¬ 
bly or the people, shall be void.” 


230 


SENATE ELECTION CASES. 


They further represent that said Lyman Trumbull was, on the 7th day of June, 1852, 
elected judge of the supreme court of the State of Illinois, and was duly commissioned 
as such, for the term of nine years, from the 24th day of June, 1852; that he took upon 
himself the oath of said office, and entered upon the discharge of the duties of the same; 
that his said term of office for which he was elected is unexpired, and will not expire un¬ 
til the 27th day of June, 1861; and that in and by virtue of the said provision of the con¬ 
stitution of the said State of Illinois, the votes cast by the members of the general as¬ 
sembly for said Trumbull for Senator of said State, as aforesaid, are nulland void, and 
said Trumbull is not legally elected to the Senate of the United States, and is not enti¬ 
tled to his seat in said Senate; and against said pretended election the undersigned, in 
behalf of themselves and their constituents, do hereby protest. 



SENATORS. 


Hugh L. Sutphin. 

Joseph Morton. 

James M. Campbell. 

J. C. Davis. 

W. H. Carlin. 

A. J. KuykendalL 

M. 0. Kean. 

Ben. Graham. 

John E. Detrich. 

Silas L. Bryan. 

James L. D. Morrison. 
G. R. Jenngan. 

A. P. Corder. 


REPRESENTATIVES. 


F. D. Preston. 

C. L. Higbee. 

Tho. P. Richmond. 
George Walker. 

T. B. Sauner. 

Dr. H. A. Browne. 

S. D. Masters. 

Sami. H. Martin. 
William J. Allen. 

B. P. Hinch. 

Eli Seehorn. 

James Bradford. 
Jonathan Dearborn. 

D. McClain. 

Frank M. Rawlings. 

G. M. Gray. 

Jona. McDaniel. 

Wm. R. Morrison. 

P. E. Hosmer. 

L. F. McCrillis. 

George H. Holliday. 

J. R. Bennett. 

S. W. Moulton. 

W. N. Cline. 

Presley Funkhouser. 
James M. Pursley. 
Hugh Gregg. 

C. C. Hopkins. 

Henry Richmond. 


Credentials of the Hon. Lyman Trumbull , elected a Senator by the legislature of the State of 

Illinois. 

It is hereby certified that, in pursuance of a joint resolution to that effect adopted, the 
two houses of the general assembly of the State of Illinois, now in session at Springfield 
in said State, did convene in joint session in the hall of the house of representatives on 
the eighth day of February, in the year of our Lord one thousand eight hundred and fifty- 
five, for the purpose of electing a Senator to the Congress of the United States for the term 
of six years from the fourth day of March, in the year aforesaid, and that Lyman Trumbull 
was then and there, by said joint session of the legislature of said State, duly elected 
Senator to represent the State of Illinois in the Senate of the United States for six years 
from the said fourth day of March next. 

Dated at Springfield the ninth day of February, one thousand eight hundred and fifty- 
five. 

Attest: 

GEORGE T. BROWN, 

Secretary of the Senate. 

Attest: 

EDWIN T. BRIDGES, 

Clerk of the House of Representatives. 

THOMAS G. TURNER, 

Speaker of the House of Representatives and 

Presiding Officer of the said joint session. 

United States of America, 

State of Illinois , ss: 

I, Alexander Starne, secretary of state for the State of Illinois, do hereby certify that 
the foregoing is a true and correct copy of a certificate of the election of Lyman Trum¬ 
bull to the United States Senate, as filed in my office by the clerk of the house of rep¬ 
resentatives. 

In testimony whereof, I have hereunto set my hand and affixed the seal of said State, 
this 15th day of February, A. D. 1855. 

[l. 8.] ALEXANDER STARNE, 

Secretary of State. 


LYMAN TRUMBULL. 


231 


Monday, December 3, 1855. 

Mr. Chittenden presented the credentials of the Hon. Lyman Trumbull, elected a Sen¬ 
ator by the general assembly of the State of Illinois for six years from the 4th day of 
March, 1855; which were read. 

Mr. Cass presented the protest of certain senators and representatives of the legisla¬ 
ture of the State of Illinois against the election of the Hon. Lyman Trumbull. 

The oath prescribed by law was administered to Mr. Trumbull, and he took his seat 
in the Senate. 


Thursday, December 20, 1855. 

Mr. Trumbull presented a certified copy of a letter of Lyman Trumbull, addressed to 
the governor of Illinois, resigning the office of justice of the supreme court of that State; 
which was referred to the Committee on the Judiciary. 

. On motion by Mr. Cass, 

Ordered , That the protest of certain senators and representatives of the legislature of 
niinois against the election of the Hon. Lyman Trumbull as a Senator of the United 
States, on the files of the Senate, be referred to the Committee on the Judiciary. 

[Some remarks on the question whether the subject should go to the Committee on 
the Judiciary or to a select committee are found on page 58 of the Congressional Globe 
referred to in the head-note.] 


Monday, February 4, 1856. 

The President pro tempore presented a certificate of the governor of Illinois of the elec¬ 
tion of the Hon. Lyman Trumbull by the legislature of that State as a Senator in Con¬ 
gress, and of his election and appointment as a justice of the supreme court of Illinois, 
with an extract from the constitution of Illinois respecting the eligibility of judges of 
the courts of that State to other offices during the term for which they are appointed; 
which was referred to the Committee on the Judiciary. 

[Some remarks on the question of reference of the communication are found on page 
343 of the Congressional Globe referred to in the head-note. Mr. Seward cited the ad¬ 
mission of Hon. N. P. Tallmadge, of New York, as a precedent in favor of the right ol 
Mr. Trumbull.] 


Wednesday, February 20, 1856. 

[Some remarks made on Mr. Trumbull’s eligibility are found on pages 466-468 of 
the Congressional Globe referred to.] 


Wednesday, February 27, 1856. 

Mr. Butler, from the Committee on the Judiciary, to whom was referred the protest 
of certain senators and representatives of the legislature of Illinois against the election 
of the Hon. Lyman Trumbull as a Senator of the United States, with other papers, sub¬ 
mitted a report (No. 15). 

The Senate proceeded to consider the report; and, in concurrence therewith, 

Ordered , That the committee be discharged from the further consideration of the sub¬ 
ject. 

Ordered , That the report, with the accompanying papers, be printed. 

Mr. Crittenden submitted the following resolution for consideration: 

“ Resolved !, That Lyman Trumbull is entitled to a seat in this body as a Senator elected 
by the legislature of the State of Illinois, for the term of six years, from the 4th of 
March, 1855.” 

The Senate proceeded, by unanimous consent, to consider the said resolution; and, 

On motion by Mr. Stuart, 

Ordered , That the further consideration thereof be postponed to and made the special 
order of the day for Monday, the 3d of March next. 

[A short debate is found on pages 514-515 of the Congressional Globe referred to.] 

Monday, March 3, 1856. 

The Senate resumed the consideration of the resolution submitted by Mr. Crittenden, 
the 27th of February, declaring the Hon. Lyman Trumbull entitled to a seat as a Sen* 
ator of the United States; and, 

After debate, 

On motion by Mr. Stuart, 

Ordered , That the further consideration of the resolution be postponed until to- mor- 

r °^The subject is debated at length on pages 547-552 of the Congressional Globe referred 

to.] 


232 


SENATE ELECTION CASES. 


Tuesday, March 4, 1856. 

The Senate resumed the consideration of the resolution submitted by Mr. Crittenden, 
the 27th of February, that the Hon. Lyman Trumbull is entitled to a seat in the Senate 
of the United States; and, 

After debate, 

On motion by Mr. Weller, *. 

Ordered , That the further consideration thereof be postponed until to-morrow. 

[The debate is continued on pages 562-567 of the Congressional Globe referred to.] 

Wednesday, March 5, 1856. 

The Senate resumed the consideration of the resolution submitted by Mr. Crittenden, 
the 27th of February, in relation to the rights of the Hon. Lyman Trumbull to a seat in 
the Senate; and, 

After debate, 

On the question to agree to the resolution, it was determined in the affirmative—yeas 
35, nays 8. 

On motion by Mr. Toucey, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Adams, Allen, Bell of Tennessee, 
Bright, Brown, Butler, Cass, Collamer, Crittenden, Dodge, Durkee, Evans, Fessenden, 
Fish, Foot, Foster, Geyer, Hale, Hamlin, Harlan, Houston, Hunter, James, Mallory, 
Mason, Pearce, Eeid, Rusk, Sebastian, Seward, Sumner, Toucey, Wade, Wilson, and 
Yulee. 

Those who voted in the negative are Messrs. Clay, Iverson, Johnson, Jones of Iowa, 
Pugh, Slidell, Stuart, and Weller. 

So it was 

Resolved, That Lyman Trumbull is entitled to a seat in this body as a Senator elected 
by the legislature of the State of Illinois for the term of six years from the 4th of March, 
1855. 

[The debate is concluded on pages 579-584 of the Congressional Globe referred to.] 

[Extracts from a speech of Mr. Crittenden, of Kentucky, delivered March 3, 1856, in support of 

the legality of Mr. Trumbull’s election, taken from pages 547 and 548 of the Congressional Globe 

referred to in the head-note.! 

“ The facts of the case are few and undisputed. Mr. Trumbull was, in point of fact, 
chosen by the legislature of Illinois as a Senator in this body. It is true that some four 
years before that time he had been elected a judge of one of the circuit courts of that State, 
but it is also true that he had resigned that office about eighteen months before his election 
as a Senator. The first question, therefore, that presents itself is, whether upon these 
facts, and a proper construction of the constitution of the State of Illinois, he is entitled 
to his seat? No objection is made to any qualification required by the Constitution of 
the United States. The question is, whether there is anything in the constitution of 
Illinois which can invalidate his election. I will first consider the question as it arises 
upon the constitution of Illinois, and then as respects the Constitution of the United 
States. The provision of the constitution of Illinois I desire to read to the Senate. The 
tenth section of the fifth article of the constitution of that State reads in these words: 

“ ‘The judges of the supreme court shall receive a salary of $1,200 per annum, payable 
quarterly, and no more. The judges of the circuit courts shall receive a salary of $1,000 
per annum, payable quarterly, and no more. The judges of the supreme and circuit 
courts shall not be eligible to any other office or public trust, of profit in this State, or 
the United States, during the term for which they are elected, nor for one year there¬ 
after. All votes for either of them for any elective office (except that of judge of the 
supreme or circuit court) given by the general assembly, or the people, shall be void.’ 

11 Mr. Trumbull was elected on the 7th of June, 1852, judge of the circuit court for the 
term of nine years. Having held that office less than one year, he resigned on the 19th 
of May, 1853, to take effect on the ensuing 4th of July. He was elected to the Senate 
of the United States on the 8th of February, 1855, more than eighteen months after his 
resignation, but before the expiration of the nine years for which he had been originally 
elected a judge. 

“To these facts we are to apply the constitutional provision which I have read which 
declares that no judge of the supreme court or circuit court should be eligible to any 
other office for the term for which he was elected, and for one year thereafter. Does 
this prohibition in the constitution of Illinois apply to such a case as this? I say that 
it does not. In order to ascertain the meaning of any instrument, we must endeavor to 
ascertain the intention of its framers. What was the intention of the iramers of this 
provision? It was to preserve the independence of their judiciary, and to prevent the 


LYMAN TRUMBULL. 


233 


possibility of one of tlie judges of the State using the influence of that office to obtain 
another. That is the reason and the sole reason for this prohibition; and to accomplish 
this object, the constitution of Illinois provides not only for ineligibility during the term 
of nine years, but for one year thereafter, lest he should, by anticipated contrivances, 
intrigues, and influence, provide for another office by the use of the influence which his 
present office affords. One year after the expiration of his office was supposed to be suf¬ 
ficient for that purpose. 

******* 

“Now, sir, suppose I am wrong; suppose that, without any reason, without any mo¬ 
tive, without any mischief to be suppressed, without any foundation for any of the ob¬ 
jections applicable to the incumbent of office, this constitution shall, by the force of its 
mere letter, be applied to this case, and that it does create, so far as it can act, an im¬ 
pediment, an obstacle to the election of this gentleman, is such a provision valid, or can 
it affect his right, when we look to the Constitution of the United States under which 
the Senate has been created? I think clearly not. We are to look to the Constitution 
of the United States for the whole frame of this Government. It has created all the 
powers and all the instruments of this Government. It has created the Senate. Before 
this creation, neither the State of Illinois as such, nor any other State in the Union, had 
any power to elect a Senator. There was no such office to be filled by them as Senator 
of the United States. Their agency was simply employed by the Federal Constitution. 
The agency of the legislatures of the several States was employed to elect Senators who 
constitute this body. It is an all-important branch of the Government. The designation 
of the power that was to elect, the designation of the persons qualified to be elected, all 
entered into the very essence of the subject. All this was to have its influence on this 
Government. All and every single circumstance of this was to have its influence in 
connecting the State governments and the General Government, and in connecting them 
in such a way as to preserve that species of political relations between them which it was 
thought would operate most advantageously to all. 

“This was the view of the framers of the Constitution of the United States. It was a 
subject for them whether the legislature should elect Senators, whether the people 
should elect them, or whether the governors of the several States should appoint them. 
All this was within the competency of the framers of the Constitution-. Neither people, 
noi governors, nor legislatures had previously any power to elect or appoint a Senator. 
There was no such officer; there was no such power. The whole was a new crea¬ 
tion. The Constitution determines that the power to choose Senators shall be in the 
legislatures of the several States. The power to e],ect Senators was committed to the 
legislatures. Who shall they be, was the next question. The question was, how to 
designate a Senator by some prescribed qualification, so as to fix the class from which he 
should come. Shall he be a man who is required to possess any particular amount of 
fortune? Shall he be a man who must be subjected to some religious test? Of what 
age shall he be ? 

“Were not all these points fairly presented to the framers of the Constitution of the 
United States? Were they not important questions to be acted upon and decided? 
They were framing the Government. The constitution of this body was an essential 
part of the Government. That was to depend on the parties, or the condition of the 
parties, out of whom they would make this great council of the nation. Should he be 
a citizen? Might they select him anywhere? Should he be an inhabitant of his State? 
Might he be of any age? 

‘ ‘ All these subjects being considered, the Constitution of the United States decides upon 
the whole matter by providing that each Senator shall be of the age of thirty years, 
shall have been at least nine years a citizen, of the United States, and shall be an inhab¬ 
itant of the State from which he is chosen. 

“Now, sir, does this not embrace the whole subject? Does it not regulate the whole 
subject ? According to the plain meaning of the Federal Constitution every inhabitant 
of a State, thirty years of age, who has been nine years a citizen of the United States, is 
eligible to the office of Senator. What more can be said about it ? It is now supposed 
by those who contend that Mr. Trumbull is not entitled to his seat, that it is competent 
for a State, by its constitution—and I suppose they would equally contend by any law 
which the legislature might from time to time pass—to superadd additional qualifica¬ 
tions. The Constitution of the United States, they say, has only in part regulated the 
subject, and therefore it is no interference with that Constitution to make additional 
regulations. This, I think it will be plain to all, is a mere sophism, when you come to 
consider it. If it was a power within the regulation of, and proper to be regulated by, 
the Constitution of the United States, and if that Constitution has qualified it, as I have 
stated, prescribing the age, prescribing the residence, prescribing the citizenship, was 
there anything more intended ? If so, the framers of the Constitution would have said 
so. The very enumeration of these qualifications excludes the idea that they intended 


234 


SENATE ELECTION CASES. 


any other qualifications. That is the plain rule of ordinary construction; but, for a 
reason above all technical considerations, it is applicable here. The object of the Fed¬ 
eral Constitution was to have a body framed by a uniform rule throughout the United 
States, coming here to constitute this great council of the country—coming here by the 
agency of the same elective power, the State legislatures—coming here under the same 
requirements, and with the same qualifications—and standing here upon a perfect and 
exact equality in all respects to represent the nation justly and equally, and with a sole 
regard to the common welfare of the Republic.” 

[Extract from a speech of Mr. Pugh, of Ohio, adverse to the right of Mr. Trumbull, delivered March 
3,1856, taken from pages 549, 550 of the Congressional Globe referred to in the head-note.] 

“The Senator from Kentucky claims, in Mr. Trumbull’s behalf, that the Constitution 
of the United States has prescribed the qualifications requisite for a Senator, and that 
no State can add to or subtract from those qualifications. 

“ I am not disposed to try the virtue of this conclusion by logical tests; I deny the truth 
of its premises. The Constitution of the United States does not prescribe the qualifica¬ 
tions of a Senator in the sense here assumed. Its language is that of exclusion, and not 
of qualification: 

“ ‘ No person shall be a Senator who shall not have attained to the age of thirty years, 
and been nine years a citizen of the United States, and who shall not, when elected, be 
an inhabitant of that State for which he shall be chosen.’ 

‘ ‘ In this instance, as in all others, the language of the Constitution was aptly selected 
with a view to the nature of our Federal Government. It was intended that each Sen¬ 
ator should be thirty years of age, and should have been nine years a citizen of the 
United States, because the duties of his office were thought to require an experienced 
judgment and considerable familiarity with the course of public affairs. And to secure 
the election of Senators from all extraneous influence, such as might have been appre¬ 
hended perhaps from the dictation of the large States or the patronage of the Federal 
Government, it was furthermore declared that each Senator should not merely be a citi¬ 
zen but an actual resident—‘inhabitant’—of the State for which he is chosen. 

‘ ‘ I agree that no State can dispense with or subtract from the requisites prescribed in 
the Federal Constitution; but I can see no pretense for asserting that the States may not 
superadd any qualification which is consistent with those requisites. A Senator is 
an officer of the Federal Government; he is also an officer of his own State. He is 
elected to represent the people of the State, in an aggregate and organized capacity, as 
one of the sovereign parties to our Federal compact. He is elected, to be sure, by the 
legislature; but the legislature is itself a body of representatives chosen by the people. 
His constituency is equal to that of all the members of the legislature taken together. 
It consists of the people at large acting through counties, districts, or other established 
subdivisions, and thus expressing the will of the State as a public corporation. While 
the Federal Constitution might prescribe certain requisites, therefore, in order to secure 
the interests of the Federal Government, the rights of the citizens of all the States, and 
the welfare of the whole Union; while it might well do this and bind each State to an 
observance of such requisites, no reason can be assigned why the people of a State— 
whose peculiar representative and officer in equal degree their Senator is—might not 
prescribe other qualifications, in addition, for the purpose of protecting their separate 
interests, rights, and welfare. I agree, of course, that such additional requisites must 
not only be consistent with those specified in the Constitution of the United States, but 
with the whole spirit and tenor of that instrument. No mischief can resul t to the Union 
or to other States from this course of decision; and it leaves to the States that degree of 
independence, that reservation of powers, which the tenth amendment to the Constitu¬ 
tion so plainly inculcates. 

“There is no conflict between the Constitution of the United States and the constitu¬ 
tion of the State of Illinois. They are perfectly consistent. Now, so far as my learning 
extends there is no principle more firmly established in the law of England and of America 
than this: that whenever two enactments can stand together—whether they be called 
constitutions, statutes, or by what name soever—they shall stand together, and both shall 
be obeyed. 

“ It is suggested, however, that the legislatures of the States derive their power of elect¬ 
ing Senators from the Constitution of the United States and not from their respective 
State constitutions. But this, if admitted to its full extent, will be found immaterial. 
It is not a power conferred on any legislature as matter of gift or permission from the 
Federal Government, but as a matter of right, and because the legislature represents 
the people and acts only as an agent for the people. Surely, I submit, the Constitution 
of the United States never designed to exalt the agent above the principal, the creature 
above the creator, the minister above the sovereign, as this proposition assumes.” 


JAMES UAKLAN, 


235 


[Thirty-fourth Congress—Third session.] 

JAMES HARLAN, 

Senator from Iowa from March 4,1855, to January 12, 1857, and from 
January 29,1857, till May 15, 1865, when he resigned. 

December 13,1854, the legislature of Iowa met in joint convention in the hall of the house of rep¬ 
resentatives for the purpose of electing a United States Senator for the term beginning March 4, 
1855. After several ineffectual ballots and adjournments they met January 5,1855, and adjourned 
to 10 o’clock of the next day. After this adjournment of the joint convention the senate returned 
to its own chamber and adjourned to the same hour. When the senate met January 6, it at one 
adjourned till 9 o’clock, January 8. The senate, therefore, not being in session after 10 o’clock on 
January 6, did not proceed to the hall of the house as a body, though certain members of the senate 
attended. The body thus assembled consisted of a majority of the house and a minority of the 
members of the senate, together constituting a majority of the members of the convention. They 
proceeded to ballot, and Mr. Harlan received 52 votes (52 being a majority of the members of the 
joint convention), and was declared duly elected. The senate of Iowa sent resolutions to the United 
States Senate protesting against the validity of the election. Mr. Harlan was admitted to the seat 
December 3, 1855, the first day that Congress met in the term for which he was elected. December 
15, 1856, the subject was referred to the Committee on the Judiciary. January 5,1857, the commit¬ 
tee reported the proceedings of the Iowa legislature and the resolution “ that the seat of the afore¬ 
said gentleman be declared vacant,” which resolution passed the Senate January 12,1857, by a vote 
of 28 yeas to 18 nays. The question to be decided by the Senate, which was debated at great length, 
was whether the body electing Mr. Harlan was the legislature of Iowa within the meaning of the 
first clause of the third section of Article I of the Constitution ; whether it was essential to the va¬ 
lidity of the election that the senate as a body should be present, or whether a majority of the indi¬ 
vidual members of the convention constituted the legislature even if the senate as a body was not 
present, nor even a majority of the members composing the senate. Extracts from speeches, which 
are given below, give a full statement of the facts and points discussed by the Senate. 

The history of the case here given consists of an extract from a speech of Mr. Bayard, of Dela¬ 
ware, in support of the resolution reported by the committee, taken from page 249 of the Congres¬ 
sional Globe, 3d sess. 34th Cong., 1856-’57; an extract from a speech of Mr. Seward, of New York, in 
opposition to the resolution, taken from pages 260,261 of the same volume; a transcript of the pro¬ 
ceedings of the Senate relating to the case from Senate Journals, 2d sess. 33d Cong., 1st and 2d sess. 
34th Cong., and 3d sess. 34th Cong.; and the report of the committee from Senate Reports, 3d sess. 
34th Cong., Report No. 300. 

The debates in the case are found in the Congressional Globe, 3d sess., 34th Cong., 1856-’57. 

Special references to the debates of each day are inserted below. 


[Extract from speech of Mr. Bayard delivered January 7,1857.] 

“The substantial facts of the case I understand to be these: A resolution was passed in 
the house of representatives of Iowa on the 13th of December, 1854, proposing to the 
senate of Iowa to meet in joint convention on the 15th of December for the purpose of 
electing a Senator of the United States. The resolution was amended by the senate 
by fixing 2 o’clock or 2.30 o’clock of the same day for the joint meeting. The house 
concurred in the amendment, and the bodies went into joint convention on that day, 
a quorum of each house being present when they met. They proceeded to ballot, 
and having balloted ineffectually they adjourned at various times—on one occasion, 
I think, from the 14th of December, 1854, to the 5th of Janua^, 1855. On the 5th of 
January they met, and still failed to elect a Senator. They adjourned to 10 o’clock on 
Saturday morning, the 6th of January. The senate (as throughout the whole of these 
proceedings it appears each house did) after they separated returned to their own cham¬ 
ber and adjourned to the same hour on the next day. When the senate met at 10 o’clock 
on the 6th of January they, without doing any business whatever, adjourned to Monday 
at 9 o’clock. This adjournment was carried by a vote of the majority, on the yeas 
and nays—16 to 15—the whole body, consisting of thirty-one members, being present. 
The senate of Iowa was, therefore, not in session on Saturday after 10 o’clock. 

“The house of representatives met—at what hour I do not know; but after transact¬ 
ing appropriate business as a house of representatives they proceeded to receive, not the 
senate of Iowa, which was not in session, but to receive members of the senate of Iowa 
as members of the joint convention; and when those members were assembled there, to¬ 
gether with the members of the house, they constituted a majority of the two branches 
combined, that is, a majority of the whole number of persons in the convention. But 
there was present—I speak now of persons present in the sense of legal presence, as evi¬ 
denced by the vote—only a majority of the house and a minority of the senate, a quorum 
of one body and not a quorum of the other. The speaker of the house assumed that 
the members thus assembled were a regularly-organized convention of the legislature 
with the power to elect a United States Senator. No vote was taken by the convention 


236 


SENATE ELECTION CASES. 


on that point. An appeal was taken from the decision and it was contended that the 
house ought to decide whether it was organized. That appeal the speaker denied, and 
there was no vote taken by the convention on that question at all. The roll was called, 
and as a majority of the members of both branches (not a majority of each branch) an¬ 
swered to their names the speaker declared that the joint convention was regularly 
organized according to its adjournment, and they proceeded to vote for a United States 
Senator. After electing first a teller in lieu of the senate teller, who was absent, and also 
a president pro tempore of the convention, the members proceeded to vote viva voce for a 
Senator of the United States. A majority of the members of the house of representatives 
voted, but only fifteen senators voted on that occasion. 

‘ ‘ These are the real facts of the case as they appear from the journals and papers. On 
the vote to which I have just alluded being taken, it was declared that the honorable 
gentleman who now holds the seat was regularly elected to the Senate of the United 
States; and he came here and was admitted. The senate of Iowa met on the Monday 
morning next after the adjournment of Saturday, and after this alleged election had 
taken place, and their first act was to protest against it as done without their authority 
as a co-ordinate branch of the legislature of Iowa. 

“It will be observed also from the facts of this case that the journals show that on all 
occasions when the two houses met they met as houses; a message was sent from one 
house to the other. The record shows that the senate, preceded by its president, came 
to the hall of the house of representatives, and the members of the senate had seats as¬ 
signed them as a co-ordinate branch of the legislature; and after that was done, at all 
previous meetings, they proceeded to vote. On this occasion there was no senate in ses¬ 
sion; but the record shows that several members of the senate, without saying how many, 
were present. The fact is conceded, I understand, that there were but fifteen members 
of the senate who voted on that occasion, the whole senate consisting of thirty-one; and 
hence less than a quorum of the senate participated in the election. 

‘ ‘ On this state of facts the question which I suppose to arise is, whether ‘ the legislature 9 
of a State, under the language of the Federal Constitution delegating to the legislature 
the right to elect Senators of the United States, is to be taken to mean the individual 
members of the legislature or the body or bodies of which the legislature is composed. 
I suppose the term as used in the Constitution means the bodies of which the legislature 
is composed. The honorable Senator from Georgia, if I appreciate his argument, insists 
that the power being delegated to the legislature is vested in the members of the legis¬ 
lature, and that whenever a majority of the members of the whole legislature under a 
law such as that existing in Iowa vote for a man he is elected, though one of the co¬ 
ordinate branches of that legislature may not vote for him, and may, as a body, refuse 
to go into an election. Sir, I hold it to be a principle of law which has, I think, no ex¬ 
ception that where two integral bodies are authorized to do an act it cannot be done 
without the consent of those two integral bodies. They must both be present and act 
in the matter or there can be no validity in the act done. This is a universal law. I 
can call to mind no case where a contrary principle prevails, whether relating to legisla¬ 
tive action or corporate action. Indeed, in reference to corporations it has been decided 
over and over again that where there are two integral bodies who must concur in an act 
they must both be present and act upon the matter as bodies, not as individuals.” 

[Extract from speech of Mr. Seward delivered January 9,1857.] 

“ The objections rest on these grounds: 

“First. That the legislature of Iowa consists of two co-ordinate branches. 

‘ ‘ Second. That it can do no valid act without the co-ordination and co-operation of both 
of those branches, each acting, or at least appearing in the transaction distinctly by a 
majority of this branch, or a quorum of it. 

‘ ‘ I think the obj ection is unsound. The legislature of Iowa sustains double relations— 
one a local one, as the law-making authority of Iowa; the other, Federal, an electoral 
college to choose Senators in Congress from Iowa. In the one relation, it acts exclu¬ 
sively under the constitution of Iowa; in the other, exclusively under the Constitution 
of the United States. I may concede that in the former relation it must act by inde¬ 
pendent co-operation or co-ordination of both houses in all cases. 

“ I admit that the regulations, which are under review, do require the two houses to 
resolve themselves into one common body, in which the separate identity or individu¬ 
ality of those separate branches is extinguished, for the purpose of choosing a Senator in 
Congress. And that, when the merger has been made, and the convention constituted, 
it is independent of each of the two branches, and as to that transaction supersedes them 
both, and cannot be terminated or arrested by its own act, or by the concurrent and 
co-ordinate action of the two houses, being a creation of both. 

“In this view, the appearance of the senators in their collective capacity at the conven¬ 
tion was merely formal, proper in itself, but of no essential value; and the failure of the 


JAMES HARLAN. 237 

senators to practice the same form cannot vitiate the election, nor can the subsequent 
protest of the senate. 

It is alleged that such a complete extinguishing of the two houses of the legislature is 
unconstitutional. 

“ But it is too late to raise that question. Legislatures in the States are divided into 
two distinct houses, whose members differ generally in qualifications or in terms of serv¬ 
ice, to secure delay and deliberation and moderate collision in acts of legislation. But 
this very delay, deliberation, and collision practically disqualifies such bodies from acting 
as an electoral college. 

‘ It was found necessary in the very beginning of the Government to provide for bring¬ 
ing the two branches of the legislature to an agreement in that case. 

‘ The expedient adopted was the simple one, probably the only practicable one, of 
merging the two houses into one, for this purpose. The expedient has been adopted in 
nearly all the States, and is used either in the first instance, as in Iowa, or a last alterna¬ 
tive, in case of disagreement, as in New York, Georgia, and Virginia. It has been acqui¬ 
esced in by the Senate of the United States from the first, and is therefore settled and 
constitutional. 

“ Nor is it without reason. The legislature of a* State is merely a college of suffragans 
interposed between the Senate of the United States and the people of the States. The 
choice of the legislature is the indirect choice of the people of the State. 

“ The function of choice is in no sense one of a legislative nature. It is an extra-legis¬ 
lative act, an executive transaction, an action, so to speak, ex officio. The Constitution 
of the United States gives supreme right to Congress to prescribe in what manner the 
legislature of a State shall perform that act independently of all State constitutions. 

“The Congress of the United States has practically waived this right, and devolved that 
duty on the legislature of Iowa, as it was aut mrized to do by the Constitution of the 
United States. 

“ The manner prescribed by the legislature of Iowa does not conflict with any article of 
the Constitution of the United States. It would not be at all affected by any conflict 
with the constitution of Iowa, insomuch as no control over the subject whatever resides 
in the people of Iowa by whom the constitution was made. 

“Mr. President, this transaction is a judicial one. I have approached it, I trust, free 
from partiality or prejudice. The question is an important one. The decision may be 
drawn into a precedent to affect hereafter the rights of sixty States, and the safety, wel¬ 
fare, and union of this confederate Republic hundreds of years hence, when this people 
shall number, not as now by tens, but by hundreds of millions. 

“ I therefore confine my judgment to this case as it stands on the facts. I do not pre¬ 
judge other cases which shall present other facts, nor lay down principles for other and 
extreme cases. I can foresee possible abuses to come from a misapplication of the prin¬ 
ciples I have adopted. But abuses will attach themselves to all principles as barnacles 
will to the smoothest and strongest bottoms. 

‘ ‘ I repose on my conclusion with the more confidence because it is one which tends to 
secure the Senate, and through it the Federal Government, against the efforts of faction 
and of ambition to disorganize the Union and subvert the republican Government here, 
which is the chief guarantee of civilization everywhere.’ ’ 


Saturday, March 3, 1855. 

The President pro tempore laid before the Senate a letter of the president of the senate 
of Iowa, accompanied by resolutions of the senate of that State, relative to the joint con¬ 
vention alleged to have been held by the general assembly of Iowa for the election of an 
associate judge and a United States Senator; which was read. 

Ordered , That it lie on the table. 

Monday, December 3, 1855. 

Mr. Jones, of Iowa, presented the credentials of the Hon. James Harlan, chosen a Sen¬ 
ator by the general assembly of the State of Iowa “ to represent ” the said State “in the 
Senate of the United States;” which were read. 

On motion by Mr. Mason, the resolutions of the senate of the State of Iowa, communi¬ 
cated March 3, 1855, were read. 

The oath prescribed by law was administered to Mr. Harlan, and he took his seat in 
the Senate. 

[These resolutions are found in the report of the committee given below.] 

Thursday, August 14, 1856. 

On motion by Mr. Jones, of Iowa, that the credentials of the Hon. James Harlan, of 
Iowa with the resolutions of the senate of Iowa relative to his election as a Senator from 
that State, on the files of the Senate, be referred to the Committee on the Judiciary. 


238 


SENATE ELECTION CASES. 


Ordered , That the farther consideration of the motion he postponed to and made th* 
special order of the day for to-morrow at 12 o’clock. 

[Remarks in regard to the reference of the subject to a committee are found on page 
2098 of the Congressional Globe, part 3, 1st sess. 34th Cong., 1855-’56.] 

Friday, August 15, 1856. 

On motion by Mr. Hunter that the special order of the day be postponed, and that 
the Senate proceed to the consideration of the bill (H. R. 201) making appropriations for 
certain civil expenses of the Government for the year ending the 30th of June, 1857, it 
was determined in the affirmative—yeas 27, nays 19. 

[The vote may be found on page 593 of Senate Journal, 1st and 2d sess. 34th Cong., 
1855-’56.] 

[A debate on the subject of postponement is found on pages 2129 and 2130 of the Con¬ 
gressional Globe, part 3, 1st sess. 34th Cong., 1855-’56.] 

Monday, December 15, 1856. 

The Senate resumed the consideration of the motion made by Mr. Jones, of Iowa, the 
14th of August last, to refer the credentials of the Hon. James Harlan to the Committee 
on the Judiciary. 

On motion by Mr. Bayard to amend the motion by striking out “ to the Committee on 
the Judiciary” and inserting “a select committee,” 

The question was put on referring the same to the Committee on the Judiciary, and it 
was determined in the affirmative—yeas 31, nays 13. 

[The vote is found on page 42 of the Senate Journal, 3d sess. 34th Cong., 1856-’57.] 

So it was 

Ordered , That the credentials of the Hon. James Harlan, of the State of Iowa, be re¬ 
ferred to the Committee on the Judiciary. 

[A statement of the facts of the case by Mr. Harlan, also a debate on the question 
whether the subject should more properly go to the Committee on the Judiciary or to a 
select committee, are found on pages 112-117 of the Congressional Globe, 3d sess. 34th 
Cong., 1856-’57.] 

Monday, January 5, 1857. 

Mr. Butler, from the Committee on the Judiciary, to whom were referred the creden¬ 
tials of the Hon. James Harlan, a Senator from the State of Iowa, reported the following 
resolution: 

“ Resolved , That the seat of the aforesaid gentleman be declared vacant.” 

Ordered , That the report be printed. 

REPORT OF COMMITTEE. 

[The Committee on the Judiciary consisted of Messrs. Butler (chairman), Toucey, Bay¬ 
ard, Geyer, Toombs, and Pugh. 

In the Senate of the United States. 

January 5, 1857.—Ordered to be printed. 

Mr. Butler made the following report: 

The Committee on the Judiciary, to whom were referred the credentials of the Hon. 
James Harlan and the protest of the senate of Iowa, have had the same under consider¬ 
ation, and submit the following statement: 

The following proceedings were had in the legislature of the State of Iowa in the elec¬ 
tion of a United States Senator: 


Saturday, December 9, 1854. 

“ Resolved {the senate concurring ), That the house of representatives will meet the 
senate in the hall of the house on Tuesday next at 2 o’clock p. m., for the purpose of 
electing a Senator of the United States and judges of the supreme court. 

“On motion, 

“ The resolution was laid on the table.” 


December 12, 1854. 

Resolution fixing the time for the election of a United States Senator was taken up 
and amended so as to fix Friday, the 15th instant, as the day for an election. 

“Message from the senate, by Mr. Rankin, their secretary: 

“ Mr. Speaker: I am instructed by the senate to inform the house that the senate 
has concurred in the house resolution to go into joint ballot on Friday, the 15th instant, 


JAMES HARLAN. 


239 


for the purpose of electing a United States Senator and supreme judges, with the fol¬ 
lowing amendment, viz: To strike out the words ‘ Friday, the 15th instant, at 2 
o’clock,’ and insert this: ‘ Wednesday evening, at 2.30 o’clock.’ 

“ Agreed to. 

“Joint convention of the two houses; the president of the senate acting as president 
of the convention, and the clerk of the house acting as secretary.” 

On motion, the convention proceeded to the election of a United States Senator for 
six years, from and after the 4th day of March next. 

1 ‘ The president appointed Mr. Workman teller on the part of the senate. The speaker 
appointed Mr. Kinert teller on the part of the house.” 

The convention proceeded to a vote, which resulted in no choice. 

The convention proceeded to a second ballot, which resulted in no choice. 

The convention adjourned until to-morrow at 10 o’clock. 


December 14, 1854. 

By order of the president the roll of the convention was called. 

Same tellers as yesterday. 

Motion to adjourn until Thursday next at 10 o’clock. 

Motion prevailed. 

“The president announced the convention adjourned until 10 o’clock a. m. Thurs¬ 
day, December 21.” 

Thursday, December 21, 1854. 

Joint convention of the two houses; the president of the senate acting as president 
of the convention, and the clerk of the house acting as secretary. 

Same tellers acting. 

The president having announced the purposes of the convention, and directed the roll 
to be called— 

“ The convention proceeded to vote for a United States Senator for the term of six 
years, from and after the 4th day of March next.” 

After several ballots without making a choice, the convention adjourned until the 5th 
day of January, 1855. 

Friday, January 5, 1855. 

Convention met. 

The president announced the purposes of the convention. 

After several ineffectual ballots, on motion, the convention adjourned until to-mor¬ 
row morning 10 o’clock. 

Saturday, January 6,1855. 

“ It being the hour of 10 o’clock a. m., the speaker of the house announced the same, 
and the special order to be a joint convention of the senate and house of representatives, 
pursuant to adjournment, for the purposes of electing a United States Senator and judge 
of the supreme court. 

“A committee of three was appointed to wait upon the senate, and inform that body 
that the house of representatives was now ready to receive the senate in joint conven¬ 
tion,” &c. 

“The committee appointed to wait on the senate reported that they had discharged 
that duty, by proceeding to the senate chamber and delivering their message, and in¬ 
forming the secretary of the senate thereof; that the secretary informed the committee 
that the senate had adjourned over to Monday next. 

“ A number of the members of the senate entered the hall of the house without their 
president and took their seats. 

“The speaker announced that the ioint convention of the senate and house of repre¬ 
sentatives was now in session, pursuant to adjournment, for the purposes of electing a 
judge of the supreme court and a United States Senator. 

“Mr. Samuels rose to a question of order, to wit: Was the joint convention properly 
convened? The speaker announced that the convention had now convened. 

“ Mr. Samuels appealed from the decision of the speaker, and asked for the yeas and 
nays, and insisted on his appeal being decided only by the house of representatives. 

“ The roll of the joint convention was called, and the following members of the conven¬ 
tion answered to their names, being a majority of both branches of the general assembly. 

[Here follow the names of fifty-seven members.] 

“ Those members of the convention and members of the house of representatives, ex¬ 
cept Mr. Franklin, excused, who did not answer to their names refused to answer, or 
retired from the hall during the call of the roll. 

“The speaker announced that a majority of the members of the general assembly being 
present, that there was a quorum of the joint convention now convened, pursuant to ad- 


240 


SENATE ELECTION CASES. 


journment, and that the appeal of Mr. Samuels could not be taken to the members of 
the house of representatives only. 

“On motion of Senator Anderson, William W. Hamilton, a senator from Dubuque 
County, was elected president pro tempore of the convention. 

“ The president of the senate still being absent, 

“ The speaker of the house of representatives in his chair, and the clerk of the house 
of representatives acting as secretary of the joint convention, 

“The roll of the convention was called, and the following members of the convention 
did not answer to their names, to wit. 

[Here follow the names of forty-four members.] 

‘ ‘ On motion of Mr. Russell, 

“ The sergeant-at-arms was directed to notify members of the convention who had not 
answered to their names that the convention was now convened, and to request their 
attendance. 

‘ ‘ Senators Ramsay and Thurston appeared on the floor of the convention and desired 
to be considered as not acting in the convention. 

I ‘ The sergeant-at-arms reported that he had performed his duty, as required by the 
convention; that a few of the members he could not find. 

‘ ‘ On motion of Mr. Conkey, 

“ Further proceedings under the call were dispensed with. 

“ Mr. Workman, teller on the part of the senate, being absent, 

“ Mr. Needham was appointed in his stead, 

“ Mr. Kinert acting as teller on the part of the house. 

“The convention proceeded to the election of a second associate judge of the supreme 
court;” after which “the convention proceeded to the election of a United States Sen¬ 
ator for the State of Iowa for the term of six years from and, after the 4th of March 
next. * * * 

II Mr. Anderson nominated James Harlan, of Henry County. 

‘ ‘ The convention proceeded to vote for a United States Senator, being the ninth vote, 
which resulted as follows: 

“ Those voting for James Harlan were— 

[Here follow the names of fifty-two members.] 

“ Messrs Clark, of Marion, and Neely voted for Bernhart Henn; Mr. McAchran voted 
for Wm. McKay; Mr. Witter voted for James Grant. James Harlan having received a 
majority of all the votes cast and a majority of the whole number of the members of the 
general assembly, was declared duly elected a Senator of the United States for the State 
of Iowa for the term of six years from and after the 4th day of March next. 

“The certificate of election was made out and duly attested in the presence of the 
convention,” &c. * * * 


Hall of the House of Representatives, 

January 6, 1855. 

This will certify that, at an election by the general assembly of the State of Iowa, in 
joint convention, on Saturday, the 6th day of January, A. D. 1855, James Harlan was 
duly elected a Senator to represent this State in the Senate of the United States for the 
term of six years from and after the 4th day of March next. 

WILLIAM W. HAMILTON, 
President pro tempore. 

REUBEN NOBLE, 

Speaker of the House of Representatives. 

Attest: 

JOHN R. NEEDHAM, 
DAYID KINERT, 

Tellers. 

On motion of Mr. Hills, the joint convention adjourned sine die , and the members of 
the senate retired.— Journal of the House of Representatives of the State of Iowa. 

— V. 

Monday Morning, January 8, 1855. 

Mr. Coolbaugh offered the following: 

“Whereas it is reported that the journal of the house of representatives, as read this 
morning in the presence of the house, alleges that a joint convention of the general assem¬ 
bly of this State was held in the hall of the house on Saturday, the 6th instant; and, 

“Whereas it is alleged in said journal that said joint convention proceeded to elect one 
Norman W. Isbell as an associate judge of the supreme court of this State and one James 



JAMES HARLAN. 


241 


Harlan as a Senator of the United States for the term of six years from the 4th day of 
March next: Therefore, 

“ Resolved , That inasmuch as the senate has no knowledge of any such joint conven¬ 
tion, and did not participate in the proceedings, therefore it hereby protests against the 
action of the said so-called joint convention, and declares the same to be void and of no 
effect. 

u Resolved, That a copy of this preamble and resolution be signed by the president and 
certified to by the secretary of the senate, be presented to the governor of this State, 
and also a copy forwarded to the presiding officer of the Senate of the United States, 
with the request to lay the same before that body.” 

Upon the adoption of which, the yeas and nays, being demanded, were ordered, and 
were as follows—yeas 17, nays 14. 

The preamble and resolutions were adopted .—Journal of the senate of the State of Iowa, 

1854-’55. 

AN ACT to provide for the election of United States Senators and other officers. 

Section 1. Be it enacted by the general assembly of the State of Iowa, That at each and 
every regular session of the general assembly of this State next preceding the expiration 
of the constitutional term of service of a United States Senator, or at any session when 
a vacancy shall exist, at an hour to be designated by a resolution of either branch, with 
the concurrence of the other branch of the general assembly, the members of both houses 
thereof shall meet in convention in the hall of the house of representatives, for the pur¬ 
pose of electing a Senator or Senators by joint vote, in pursuance of the Constitution of 
the United States, to represent this State in the Senate of the United States. 

Sec. 2. The president of the senate, or in his absence the speaker of the house of rep¬ 
resentatives, shall preside over the deliberations of the convention; and in the absence 
of both a president pro tempore shall be appointed by joint vote. 

Sec. 3. At any time prior to meeting in convention as aforesaid, after the time for 
meeting has been designated as aforesaid, each branch of the general assembly shall ap¬ 
point one teller, and the two tellers thus appointed shall act as judges of the election. 

Sec. 4. The secretary of the senate and the chief clerk of the house of representatives 
shall each keep a fair and correct record of the proceedings of the convention, which 
shall be entered upon the journals of each branch of the general assembly. The chief 
clerk of the house of representatives shall act as secretary to the convention. 

Sec. 5. The names of the members of the general assembly shall be arranged by the 
secretary in alphabetical order, and each member shall vote in the order in which bis 
name stands when thus arranged. 

Sec. 6. When the convention shall be organized as aforesaid the members present 
shall proceed to choose viva voce a Senator or Senators, as the case may be, to represent 
this State in the Senate of the United States. The name of the person voted for and of 
the members voting shall be entered in writing by the tellers, who shall, after the sec¬ 
retary shall have called the names of the members a second time, and the name' of the 
person for which each member has voted, report to the president of the convention the 
number of votes given for each candidate. 

Sec. 7. If neither of the candidates shall receive the votes of a majority of the mem¬ 
bers present a second poll may be taken, and so from time to time until some one of the 
candidates shall receive a majority of the votes of the members present. 

Sec. 8. If the election shall not be completed at the first meeting the president shall 
adjourn the convention whenever and to such time as a majority of the members then 
present shall determine; and so from time to time, until some one of the candidates shall 
receive a majority as aforesaid. 

Sec. 9. When any person shall have received a majority of the votes aforesaid the 
president of the convention shall declare him to be duly elected a Senator to represent 
this State in the Senate of the United States; and he shall in the presence of the mem¬ 
bers of both houses sign two certificates of election, attested by the tellers, one of which 
he shall transmit to the governor, and the remaining one shall be preserved among the 
records of the convention and entered at length on the journals of each, house of the 
general assembly. 

Sec. 10. Upon the reception of said certificate the governor shall cause a credential to 
be made out, with the great seal of the State affixed thereto, and cause it to be delivered 
to such Senator-elect, which credential shall be in form following. 

[Here follows the form of the credential .]—Laws of Iowa, 1847, pp, 92, 93. 

The Constitution of the United States contains the following provision in reference to 
the election of United States Senators: 

“Sec. 4. The times, places, and manner of holding elections for Senators and Represent- 

S. Doc. 11-16 



242 


SENATE ELECTION CASES. 


atives shall be prescribed in each State by the legislature thereof, but the Congress may 
at any time by law make or alter such regulations, except as to the places of choosing 
Senators. ’ ’ 

And the clause under which the committee are acting as to the qualification of the 
gentleman is as follows: 

“ Sec. 5. Each House shall be the judge of the elections, returns, and qualifications of 
its own members. ” * * * 

State of Iowa, to wit: 

'Fhe general assembly of this State, on the sixth day of January, one thousand eight 
hundred and fifty-five, having, in pursuance of the Constitution of the United States of 
America, chosen James Harlan a Senator to represent this State in the Senate of the United 
States, I, James W. Grimes, governor of the State of Iowa, do by these presents certify 
the same to the Senate of the United States. 

Given under my hand and the great seal of the State of Iowa, this twentieth day of 
January, one thousand eight hundred and fifty-five. 

[L. s.] JAMES W. GRIMES. 

By the governor: 

GEORGE W. McCLEARY, 

Secretary of State. 

The foregoing statement of facts and recital of clauses of laws and the Constitution 
present all the questions involved in the controversy growing out of the contested elec¬ 
tion under consideration. From the view which a majority of the committee have taken 
of these questions, they have come to the conclusion that the sitting member (Mr. Har¬ 
lan) has not been duly elected a Senator of the United States by the legislature of Iowa. 

Resolved, That the seat of the aforesaid gentleman be declared vacant. 

A. P. BUTLER, 

Chairman. 

Tuesday, January 6, 1857. 

The Senate proceeded to consider the resolution reported by the Committee on the 
Judiciary on the credentials of the Hon. James Harlan, a Senator from the State of Iowa; 
and, 

On motion by Mr. Bayard that the further consideration of the resolution be post¬ 
poned until half-past 12 o’clock to-morrow, it was determined in the negative. 

After debate, 

An amendment being proposed by Mr. Toombs, 

On motion by Mr. Weller, 

Ordered , That the further consideration of the resolution be postponed until to-mor 
row. 

[The debate is found on pages 238-247 of the Congressional Globe referred to in the 
head-note. ] 

Wednesday, January 7, 1857. 

The Senate resumed the consideration of the resolution reported from the Committee 
on the Judiciary on the credentials of the Hon. James Harlan, a Senator from the State 
of Iowa; and, 

After debate and the consideration of executive business, the Senate adjourned. 

[The debate is continued on pages 248-257 of the Congressional Globe referred to in 
the head-note. ] 

Friday, January 9, 1857. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary on the credentials of the Hon. James Harlan, a Senator from the State of 
Iowa; and, 

After debate, 

On motion by Mr. Mallory, the Senate adjourned. 

[The debate is continued on pages 260-270 of the Congressional Globe referred to in 
the head-note.] 

Monday, January 12, 1857. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary on the credentials of the Hon. James Harlan, a Senator from the State of 
Iowa. 

On motion by Mr. Toombs to amend the resolution by striking out all after the word 
il resolved " and inserting: 

“That James Harlan is entitled to his seat as a Senator from Iowa,’ 1 

It was determined in the negative—yeas 18, nays 27. 


JAMES HARLAN. 


243 


On motion by Mr. Butler, the yeas and nays being desired by one-fifth of the Seua- 
fcors present, 

Those who voted in the affirmative are Messrs. Bell of New Hampshire, Bell of Ten¬ 
nessee, Brown, Collamer, Durkee, Fessenden, Fish, Foot, Foster, Hale, Houston, Pugh, 
Seward, Slidell, Toombs, Trumbull, Wade, and Wilson. 

Those who voted in the negative are Messrs. Allen, Bayard, Benjamin, Biggs, Bigler, 
Butler, Cass, Clay, Comegys, Crittenden, Dodge, Evans, Fitzpatrick, Geyer, Hunter, 
Iverson, Jones of Iowa, Mallory, Mason, Pratt, Reid, Rusk, Sebastian, Stuart, Toucey, 
Weller, and Wright. 

On motion by Mr. Butler, the resolution was amended to read: 

“ Resolved , That the seat of the Hon. James Harlan be declared vacant.” 

On the question to agree to the resolution it was determined in the affirmative—yeas 
28, nays 18. 

On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Allen, Bayard, Benjamin, Biggs, Big¬ 
ler, Butler, Cass, Clay, Comegys, Crittenden, Dodge, Evans, Fitzpatrick, Geyer, Hunter, 
Iverson, Jones of Iowa, Mallory, Mason, Pearce, Pratt, Reid, Rusk, Sebastian, Stuart, 
Toucey, Weller, and Wright. 

Those who voted in the negative are Messrs. Bell of New Hampshire, Bell of Ten¬ 
nessee, Brown, Collamer, Durkee, Fessenden, Fish, Foot, Foster, Hale, Houston, Pugh, 
Seward, Slidell, Toombs, Trumbull, Wade, and Wilson. 

[The debate is concluded on pages 287-299 of the Congressional Globe referred to in 
the head-note. ] 


244 


SENATE ELECTION CASES. 


[Thirty-fourtli and Thirty-fifth Congresses.] 

GRAHAM 1ST. FITCH and JESSE D. BRIGHT, 
LANE AND MCCARTY vs. FITCH and BRIGHT, 

of Indiana . 


February 4,1857, Graham N. Fitch was elected Senator by the legislature of Indiana for the term 
ending March 3,1861, and Jesse D. Bright for the tei-m ending March 3,1863. February 9,1857, Mr. 
Fitch’s credentials were presented, and at the same time a protest of members of the legislature 
against the legality of the election. After debate on the prima facie right of Mr. Fitch to the seat, 
he was admitted, and his credentials and the protest were referred to the Committee on the Judi¬ 
ciary. The ground of the protest was that these Senators were “ not elected by the legislature of 
Indiana, but by a convocation of a portion of the members thereof, not authorized by any law of 
the State, by resolution adopted by the legislature, or by any provision of the Constitution of the 
United States.” It appears that there was no law in Indiana providing for the time, place, or man¬ 
ner of electing Senators. There was a clause in the State constitution making it the duty of the 
speaker of the house of representatives to open and publish the votes for governor and lieutenant- 
governor in the presence of both houses of the general assembly. January 12,1857, the two houses 
met for this purpose, a majority of both houses being present. At the close of this business the pre¬ 
siding officer adjourned the convention (so called) until February 2. Meantime the senate passed a 
resolution protesting against this proceeding and disclaiming all connection with the so-called con¬ 
vention. A minority of the senate, but a majority of the members composing the two houses, at¬ 
tended the adjourned meeting, and after a subsequent adjournment elected Messrs. Fitch and 
Bright as Senators. February 26 and March 13,1857, the committee reported resolutions that Mr. 
Fitch and the persons protesting against his election be permitted to take testimony on disputed 
facts. December 17,1857, the credentials of Mr. Bright, who had taken his seat March 4, were re¬ 
ferred, together with the credentials of Mr. Fitch, to the same committee. January 21,1858, the 
committee again reported a resolution that the sitting members and the persons protesting be per¬ 
mitted to take testimony. January 25 the minority of the committee reported against the adoption 
of the resolution on the ground that the election was “obviously illegal.” The resolution passed 
the Senate February 16,1858. May 24,1858, the committee reported the testimony and the resolution 
that the sitting members were entitled to their seats. The resolution was agreed to June 12,1858. 

January 24, 1859, a memorial of the State of Indiana was presented representing that it was the 
wish of the State that Henry S. Lane and William Monroe McCarty be admitted to seats in the 
Senate as the only legally chosen Senators. February 3, 1859, the Committee on the Judiciary, 
to whom were referred the memorial, reported that there was no vacancy in the Senate from the 
State of Indiana, and that the election of Messrs. Lane and McCarty was void; that the legislature 
of Indiana possessed no authority to revise the decision of the Senate of the United States on the 
right of Messrs Fitch and Bright to the seats, a decision which was final and made by an authority 
having exclusive jurisdiction, and asked to be excused from the further consideration of the subject. 
February 3, 1859, the minority reported that the former decision of the Senate was not necessarily 
final; that under the circumstances the subject should be re-examined; and that if the Senate should 
find that Messrs Lane and McCarty were legally elected, they should be admitted to the seats. Feb¬ 
ruary 14,1859, the Senate agreed to the report of the committee and resolved that the decision of 
June 12,1858, affirming the right of Messrs Fitch and Bright to their seats, “ was a final decision of 
all the premises then in controversy, and conclusive, as well upon the legislature of Indiana, and all 
persons claiming under its authority, as upon the Senators named in the resolution.” 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Senate Journals, 3d sess. 34th Cong., 1st sess. 35th Cong., and 2d sess. 35th Cong, 
together with certain of the reports made in the case. 

Special references to the debates found in the Congressional Globe of the 3d sess. of 34th Cong, 
and the 35th Cong., are inserted below, and special references to all the reports are given in foot¬ 
notes. 


[Third sessson of the Thirty-fourth Congress. ] 

Monday, February 9, 1857. 

Mr. Bright presented the credentials of the Hon. Graham N. Fitch, elected a Senator 
by the legislature of Indiana, to serve in the Congress of the United Slates until the 4th 
day of March, 1861; which were read. 

Mr. Bright submitted the following resolution for consideration: 

“ Resolved , That the President do administer the oath required by the laws to Graham 
N. Fitch as a Senator from the State of Indiana.” 

Mr. Trumbull presented resolutions of the senate of the State of Indiana respecting 
the recent election of Senators by the legislature of that State, and a protest of rnern^ 
bers of the house of representatives of the State of Indiana against the legality of the 
election of the Hon. Jesse D. Bright and the Hon. Graham N. Fitch as Senators in the 
Congress of the United States; which were read; and, 

After debate, 

On motion by Mr. Trumbull that the credentials, the resolution submitted by Mr. 
Bright, and the resolutions of the senate of Indiana, with the protest of members of the 
house of representatives of the general assembly of Indiana, presented by Mr. Trumbull, 
be referred to the Committee on the Judiciary, it was determined in the negative—* 

yeas 12, nays 33. 


FITCH AND BRIGHT. 


245 


On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Sen* 

ators present, 

Those who voted in the affirmative are Messrs. Collamer, Crittenden, Fessenden, Foot, 
Foster, Hale, Harlan, Nonrse, Seward, Thompson of Kentucky, Wade, and Wilson. 

Those who voted in the negative are Messrs. Adams, Allen, Bayard, Bell of Tennessee, 
Biggs, Bigler, Bright, Brown, Butler, Cass, Clay, Dodge, Evans, Fitzpatrick, Geyer, 
Green, Hunter, James, Johnson, Jones of Iowa, Mallory, Mason, Pratt, Pugh, Reid, 
Rusk, Sebastian, Slidell, Stuart, Toombs, Toucey, Weller, and Yulee. 

The Senate proceeded, by unanimous consent, to consider the resolution submitted 
by Mr. Bright, and the resolution was agreed to; and 

The oath prescribed by law was administered to Mr. Fitch, and he took his seat in 
the Senate. 

******* 

On motion by Mr. Rusk that the credentials of the Hon. Graham N. Fitch, the reso¬ 
lutions of the senate of Indiana, and the protest of members of the house of representa¬ 
tives of Indiana respecting the recent election of Senators by the legislature of that State, 
be referred to the Committee on the Judiciary, 

On motion by Mr. Stuart, the Senate adjourned. 

[The debate is found on pages 193-210 of the Appendix to the Congressional Globe, 
3d sess., 34th Cong., 1856-’57 It is largely on the prima facie right of Mr. Fitch to the 
seat.l 

Tuesday, February 10, 1857. 

The Senate resumed the consideration of the motion of Mr. Rusk to refer the creden¬ 
tials of the Hon. Graham N. Fitch, with the resolutions of the senate of Indiana and 
the protest of members of the house of representatives of that State in relation to the 
recent election of Senators by the legislature of Indiana, to the Committee on the Judi¬ 
ciary; and the motion was agreed to. 

[The debate is found on pages 210-215 of the Appendix to the Congressional Globe, 
3d sess., 34th Cong., 1856-’57. It is mainly on the question whether the credentials 
should be referred to the Committee on the Judiciary or to a select committee.] 

Thubsday, February 12, 1857. 

Mr. Trumbull presented a protest, signed by members of the house of representatives 
of Indiana, against the legality of the election by the legislature of that State of Jesse 
D. Bright and Graham N. Fitch as Senators in the Congress of the United States; which 
was referred to the Committee on the Judiciary. 

Friday, February 20, 1857. 

Mr. Trumbull presented copies of the proceedings of the legislature of Indiana, and 
other papers, in relation to the recent election of Senators to represent that State in the 
Congress of the United States; which were referred to the Committee on the Judiciary. 

Thursday, February 26, 1857. 

Mr. Trumbull presented a petition of senators and representatives of the legislature 
of Indiana, protesting against the election of Graham N. Fitch as a Senator to represent 
that State in the Congress of the United States; which was referred to the Committee 
on the Judiciary. 

Mr. Toombs, from the Committee on the Judiciary, to whom were referred the cre¬ 
dentials of the Hon. Graham N. Fitch as a Senator in Congress from the State of Indi¬ 
ana, the proceedings of the senate of Indiana, and the protest of members of the house 
of representatives of the said State against the election of the Hon. Graham N. Fitch, 
submitted a report (No. 427), accompanied by the following resolution: 

“Resolved , That in the case of the contested election of the Hon. Graham N. Fitch, a 
Senator returned and admitted to his seat from the State of Indiana, that the sitting 
member and all persons protesting against his election be permitted to take testimony 
on the allegations of the protestants and the sitting member, touching all matters of 
fact therein contained, before any judge of the district court of the United States, or any 
judge of the supreme or circuit courts of the State of Indiana, by first giving ten days’ 
notice of the time and place of such proceeding in some public gazette printed at Indi¬ 
anapolis.”* 

[A short debate as to whether the resolution is a privileged question or not is found 
on pages 907, 908 of the Congressional Globe, 3d sess. 34th Cong., 1856-’57.] 

* This report is found in Senate Reports, 3d sess. 34th Cong., Report No. 427. It is not printed 
here, as it is substantially the same as the report made March 13,1857, on thf same subject, which is 
printed. 



246 


SENATE ELECTION CASES. 


Monday, March 2, 1857. 

The Senate proceeded to consider the resolution reported by the Committee on the 
Judiciary on the credentials of the Hon. Graham N. Fitch, a Senator lrom the State of 
Indiana; and 

After debate, 

On motion by Mr. Weller that it lie on the table, it was determined in the affirmative- 
yeas 28, nays 23. 

On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Adams, Allen, Bayard, Benjamin, Biggs, 
Brown, Butler, Clay, Crittenden, Douglas, Fitzpatrick, Gwin, Hunter, Iverson, James, 
Johnson, Mason, Pearce, Pratt, Pugh, Reid, Rusk, Sebastian, Slidell, Stuart, Toombs, 
Toucey, and Weller. 

Those who voted inthe negative are Messrs. Bell of New Hampshire, Bright, Brodhead, 
Cass, Collamer, Dodge, Durkee, Fessenden, Fish, Foot, Foster, Hale, Harlan, Jones of 
Iowa, Jones of Tennessee, Nourse, Seward, Sumner, Thomson of New Jersey, Trum¬ 
bull, Wade, Wilson, and Wright. 

So it was 

Ordered, That the resolution lie on the table. 

[A debate on the adoption of the resolution is found on pages 1034-1040 of the Con¬ 
gressional Globe, 3d sess. 34th Cong., 1856-’57.] 

MB. HEIGHT’S CKEDENTIALS. 

Mr. Cass presented the credentials of the Hon. Jesse D. Bright, elected a Senator by the 
legislature of the State of Indiana, to serve as such until the 4th day of March, A. D. 
1803; which were read. 


[Special session of Senate, March, 1857.] 

Wednesday, March 4, 1857. 

The credentials of Mr. Bright having been heretofore presented to the Senate, the 
oath prescribed by law was administered to him by the President pro tempore, and he 
took his seat in the Senate. 

Monday, March 9, 1857. 

On motion by Mr. Trumbull, 

Ordered, That the papers on file relating to the election of the Hon. Graham N. Fitch 
by the legislature of Indiana be referred to the Committee on the Judiciary. 

[A brief debate took place, which is found, on pages 385, 386 of the Appendix to the 
Congressional Globe, 3d sess. 34th Cong., 1856-’57.] 


Fbiday, March 13, 1857. 

Mr. Toombs, from the Committee on the Judiciary, to whom were referred the papers 
relating to the election of the Hon. Graham N. Fitch, by tfje legislature of the State of 
Indiana, as a Senator in the Congress of the United States, submitted a report (No. 2), 
accompanied by the following resolution: 

11 Resolved, That in the case of the contested election of the Hon. Graham N. Fitch, a 
Senator returned and admitted to his seat from the State of Indiana, that the sitting 
member and all persons protesting against his election, or any of them, by themselves 
or their agents or attorneys, be permitted to take testimony on the allegations of the pro- 
testants and the sitting member touching all matters of fact therein contained, before 
any judge of the district court of the United States, or any judge of the supreme or cir¬ 
cuit courts of the State of Indiana, by first giving ten days’ notice of the time and place 
oi such proceeding in some public gazette printed at Indianapolis.” 

The Senate proceeded, by unanimous consent, to reconsider the said resolution; and, 

A motion having been made by Mr. Trumbull to amend the resolution, 

After debate, 

On motion by Mr. Mason, 

Ordered, That it lie on the table 

On motion by Mr. Toombs, 

Ordered, That the report and all the accompanying papers be printed. 

[The debate which took place this day on the adoption of the resolution is found on 
pages 392-396 of the Appendix to the Congressional Globe, 3d sess., 34th Cong., 1856-’57.j 


FITCH AND BRIGHT. 


247 


REPORT OF COMMITTEE.* 

[The committee consisted of Messrs. Butler (chairman), Bayard, Toombs, Pugh, Ben¬ 
jamin, Collamer, and Trumbull.] 

The committee have had the same under consideration, and find that important mat¬ 
ters ot fact alleged by the protestants in connection with the manner in which the election 
°f the sitting member was had are denied by him, and that it becomes necessary, in the 
opinion of the committee, to take the testimony of persons residing in the State of Indi¬ 
ana, for the better ascertainment of these disputed facts. For instance, it is, among 
other things, alleged by a portion of the protestants that “ there was no joint convention 
of the two houses of said general assembly on said day” on which the election in dispute 
took place, and that a minority only of the legally sitting senators of Indiana participated 
in said election, which statements are denied by the sitting member; and he affirms, on 
the contrary, that “he was elected to said office by a majority of all the members com¬ 
posing the legislature of the State, they being then and for that purpose assembled in 
joint convention,” and that he was elected whilst in such joint convention by a majority 
of the legally qualified members of the senate of the State and of the legally qualified 
members of the house of representatives, respectively. For the proper ascertainment 
of these contested facts, and the better elucidation of the matters in dispute contained 
in the several protests herewith submitted, and the reply of the Hon. Graham N. 
Fitch, your committee recommend that leave be given to take testimony in the city of 
Indianapolis and State of Indiana, and recommend the adoption of the following reso¬ 
lution: 

Resolved, That in the case of the contested election of the Hon. Graham N. Fitch, a 
Senator returned and admitted to his seat from the State of Indiana, that the sitting 
member, and all persons protesting against his election, or any of them, by themselves, 
or their agents or attorneys, be permitted to take testimony on the allegations of the 
protestants and the sitting member touching all matters of fact therein contained, before 
any judge of the district court of the United States, or any judge of the supreme or cir¬ 
cuit courts of the State of Indiana, by first giving ten days’ notice of the time and place 
of such proceeding in some public gazette printed at Indianapolis. 

To the Senate of the United States: 

The undersigned, duly elected and qualified members of the house of representatives 
of the general assembly of the State of Indiana, hereby protest against the pretended 
election of Jesse D. Bright and Graham N. Fitch, on the 4th day of February, A. D. 
1857, as Senators of the State of Indiana in the Congress of the United States, the former 
for the six years from the 4th day of March next, and the latter for the six years from 
the 4th day of March, 1855, by a portion of the senators and representatives of said 
general assembly, for the following reasons: 

First. There was no agreement of the two houses of the general assembly, by resolu¬ 
tions or otherwise, to proceed to the appointment or election of Senators in Congress on 
said day, or any other day of the present session of the general assembly. 

Second. There was no joint convention of the two houses of the said general assembly 
on said day; nor w ; as there any law of the State authorizing a joint convention on that or 
any other day for the appointment or election of United States Senators; nor was there 
any resolution, or joint resolution, approved or adopted by the two houses of the said 
general assembly, or either of them, authorizing such joint convention. 

Third. Said pretended joint convention was a mere assembly of a portion of the senators 
and representatives of the said general assembly, not in a legislative capacity, but as 
individuals, without any authority of law, without precedent in the history of legis¬ 
lature of the State, and having no legislative sanction; and said senators and represent¬ 
atives, when so convened, had no more constitutional right to appoint or elect Senators 
than any equal number of private citizens of the State. 

Fourth. There was not a constitutional quorum of either house of the general assembly 
present in said pretended joint convention, there being only twenty-three senators and 
sixty-one representatives, when, by the eleventh section of the fourth article of the con¬ 
stitution of this State, it requires two-thirds of each house to constitute a quorum to do 
business, and when, by the law of the State, the number of senators is fixed at fifty, and 
the number of representatives at one hundred, in said general assembly. 

Fifth. Because the undersigned, as legally elected and qualified representatives in said 
general assembly, have been deprived of their constitutional right to assist in the legal 
election of the Senators in the Congress of the United States by said illegal, revolution¬ 
ary, and unauthorized election. 

•This report, which was the second one made on the credentials of Mr. Fitch, is found in Senate 
Reports, 3d sess. 34th Cong., Report No. 2. Pages 5-39 of the report are here omitted. They contain 
certain proceedings of the legislature and additional protests of members thereof. 




248 


SENATE ELECTION CASES. 


Sixth. Because the legislature of Indiana, as such legislature, either by separate 
action of the two houses, or otherwise, as such legislature, had no part or voice in such 
pretended elections, and the same were in direct violation of the third section of the 
first article of the Constitution of the United States and the fourth section of the said 
article. 

Seventh. Because said pretended elections are wholly void. 

Eighth. Because if said elections are held valid, such decision will destroy the legal 
existence of the general assembly of this State, and install in its place any mob which 
may see proper to take forcible possession of the house as a joint convention of the gen¬ 
eral assembly, without the concurrence of either body, the sanction of the Constitution, 
or authority of law. 

For these and other reasons which might be named, the undersigned protest against 
the validity of said pretended elections, and ask that the Senate of the United States 
may declare them null and void. 

Given under our hands this 4th day of February, at Indianapolis, A. D. 1857. 


S. P. Williams. 
Geo. Crawford. 
James M. Austin. 
J. N. Gordon. 

C. M. Stone. 

H. W. Sherman. 
G. D. Wagner. 
Thomas J. NeaL 
G. K. Steele. 

D. Batterton. 
Alex. H. Conner. 
M. P. Evans. 


Wm. C. Jefferis. 

S. B. Ward. 

J. D. Conner. 

Wm. Grose. 

A. B. Price. 

John Davis. 

N. H. Ballinger. 
Geo. C. Merrifield. 
Silas Colgrove. 
Geo. Moon. 
William Hawkins. 
John Whitcomb. 


D. C. Branham. 

J. W. Hutchings. 

Robert Boyd. 

John M. La Rue, Tippecanoe 
County. 

Marcus C. Smith. 

Elijah Yansandt. 

Smith Vawter. 

Wm. M. Clapp. 

R. N. Todd. 

Milton Mercer. 


The undersigned, a Senator of the United States from the State of Indiana, and now 
acting as a duly qualified Senator of the United States, submits to the honorable the 
Judiciary Committee of the body to whom the validity of his election has been referred, 
the following, as points upon which he believes and is advised that his own rights and 
the rights of his State require that evidence be taken and be before the committee in 
order to enable them to decide understanding^ and justly in the premises: 

First. That he was elected to said office by a majority of all the members composing 
the legislature of the State, they being then and for that purpose assembled in joint 
convention. 

Second. That he was elected, whilst in such joint convention, by a majority of the 
legally qualified members of the senate of the State and of the legally qualified mem¬ 
bers of the house of representatives, respectively. 

Third. That in order to ascertain the facts stated in the preceding point, he will be 
able, by evidence, to show that three of the persons who are contesting his election were 
not then, and are not now, legally members of the said State senate, and had no right 
whatever, under the laws and constitution of the State, to be considered, or, in any par¬ 
ticular, to act as members of that body; and that this was at the time, and still is, well 
known to the other contestants. 

Fourth. That in the organization of the State senate, according to the constitu¬ 
tion, laws, and usage of the State, the lieutenant-governor presides and superintends the 
admission of the members, and the taking the required oaths of office. That upon this 
occasion, in violation of such constitution, laws, and usage, the said three members, who 
were without the expressly required credentials of election, the certificate of the proper 
and only returning officer, and whose seats were also known to be contested, and on 
grounds of fraud, also known to be true, were, by a presiding officer, chosen for the pur¬ 
pose by the members of the senate, designated as Republicans, contrary to all law, and 
by naked wrong, directed, notwithstanding, to be sworn in, and for the clear purpose, 
illegal and fraudulent in fact, of defeating an election of Senators of the United States. 

Fifth. That the said convention by whom, as hereinbefore alleged, the undersigned 
was elected a Senator of the United States, was assembled in accordance with an express 
provision of the constitution of the State, and that, in accordance with the long and uni¬ 
form usage of the State in that particular, the same was adjourned from day to day by 
the proper presiding officer thereof', and vested with the authority so to adjourn, and 
that each adjournment was made without objection by a majority of the senate, even 
considering the three persons aforesaid to have been members of that body being 
present. 

Sixth. That there is not now, in said State, as the undersigned is advised, any law foi 


FITCH AND BRIGHT. 


249 


the regulation of the election of Senators of the United States, or in any way providing 
for the same; and that according to the best professional and judicial opinions in the 
State, the election is to be made by the convention of the legislature assembled under 
the constitution of the State, to count the votes and decide upon the election of gov¬ 
ernor and lieutenant-governor, as a power necessarily existing in the legislature, and 
from the obligations of the State to elect Senators. 

Seventh. That before the adoption of the present State constitution there was a law 
regulating such election, and that although the same was no longer in force, the said 
convention did, as far as it Was possible, conduct the present election according to the 
provisions thereof. 

The undersigned, in conclusion, submits what, indeed, must be obvious to the com¬ 
mittee, that as the witnesses and proofs to the matters above stated are only to be had 
in the State of Indiana, and can only properly be obtained by careful examination, and 
under the superintendence of himself, that it cannot be in his power to procure it at 
this or the approaching extra session of the United States Senate, even were he to 
abandon his duty as a Senator, which he has no right to do, and proceed at once to the 
place where the testimony is to be had. He further submits, therefore, that the com¬ 
mittee will so dispose of the matter now as will enable him and the contestants at a 
future period to present the entire case fairly and fully before them. 

GRAHAM N. FITCH. 

February 25,1857. 


True copy. Attest: 


THOS. P. MORGAN, 

Clerk to the Committee. 


Saturday, March 14, 1857. 

[A short debate in reference to correcting a mistake in the Senate Journal took place. 
The Journal showed that on Monday, March 9, 1857, Mr. Bright’s credentials were 
referred to the Committee on the Judiciary. This was an error, and the Journal was 
corrected so that it read for that day as given above. The debate is found on pages 396, 
397 of the Appendix to the Congressional Globe, 3d sess. 34th Cong., 1856-’57.] 

[First session of the Thirty-fifth Congress. ] 

Thursday, December 17, 1857. 

Mr. Trumbull submitted the following resolution; which was considered by unani¬ 
mous consent, and agreed to: 

“ Resolved , That the credentials of the sitting members of this body from the State of 
Indiana, together with all the papers on file protesting against their rights to seats, or 
relating to their election as Senators in Congress by the legislature of Indiana, be referred 
to the Committee on the Judiciary.” 

Thursday, January 21, 1858. 

Mr. Bayard, from the Committee on the Judiciary, to whom were referred, by a reso¬ 
lution of the Senate of the 17th of December, the credentials of the sitting members of 
this body from the State of Indiana, with all the papers on file protesting agamst their 
rights to seats, or relating to their election as Senators in Congress by the legislature of 
Indiana, submitted a report (No. 19), accompanied by the following resolution. [Reso¬ 
lution found at end of report.] 


REPORT OF COMMITTEE.* 

[The committee consisted of Messrs. Bayard (chairman), Green, Toombs, Pugh, Ben¬ 
jamin, Collamer, and Trumbull.] 

The Committee on the Judiciary, to whom was referred the protest against the elec¬ 
tion of the Hon. Graham N. Fitch and the Hon. Jesse D. Bright as Senators in Congress 
from the State of Indiana, report: 

The committee find that the protests against the election of the Hon. Graham N. 
Fitch as a Senator in Congress from the State of Indiana were referred to the Committee 
on the Judiciary on the 10th of February, 1857, and on the 26th of the same month a 
resolution was reported by the committee authorizing testimony to be taken both by 

* This report, taken from Senate Reports, 1st sess. 35th Cong., Report No. 19, is the third report 
made by the Committee on the Judiciary on the credentials of Mr. Fitch and the first one on the 
credentials of Mr. Bright. 




250 


SENATE ELECTION CASES. 


the protestants and the sitting member. The resolution not being acted upon by the 
Senate at that session, from the pressure of other business, the protests were again re¬ 
ferred to the committee on the 9th of March last, at the special session of the Senate, 
and the same resolution, with a slight amendment, reported by the committee on the 
13th of the same month, which being taken up on the day it was reported, a debate en¬ 
sued upon an amendment offered by the Hon. Mr. Trumbull, of Illinois, and the Senate 
having on the previous day resolved to adjourn sine die on the 14th of March, at 1 
o’clock, the resolution reported by the committee was ordered to lie on the table. 

The protests against the election of the Hon. Jesse D. Bright, as well as against the 
election of the Hon. Graham N. Fitch, having been referred at the present session, and 
the objections of the protestants and allegations of the sitting members being identical 
in both cases, the committee have adopted and recommend the passage of the resolution 
reported to the Senate by the committee at the special session on the 13th day of March 
last, with such variation as is requisite to make it apply to the cases of both the sitting 
members, as follows: 

“ Resolved , That in the case of the contested election of the Hon. Graham N. Fitch 
and the Hon. Jesse D. Bright, Senators returned and admitted to their seats from the 
State of Indiana, the sitting members, and all persons protesting against their election, 
or any of them, by themselves, or their agents or attorneys, be permitted to take testi¬ 
mony on the allegations of the protestants and the sitting members touching all matters 
of fact therein contained, before any judge of the district court of the United States, or 
any judge of the supreme or circuit courts of the State of Indiana, by first giving ten 
days’ notice of the time and place of such proceeding in some public gazette printed at 
Indianapolis.” 

Monday, January 25, 1858. 

Mr. Trumbull submitted the views of the minority of the Committee on the Judiciary, 
to whom were referred the credentials of the Senators from Indiana, and other papers 
on file relating to their election as Senators in Congress; which were ordered to be 
printed. 

VIEWS OF THE MINORITY.* 

The Committee on the Judiciary, to whom were referred the protests against the right 
of Graham N. Fitch and Jesse D. Bright to seats as Senators from the State of Indiana, 
report: 

The legislature of Indiana called the general assembly, is composed of a senate of 
fifty members and a house of representatives of one hundred members, and two-thirds 
of each house is, by the constitution, required to constitute a quorum thereof. Each 
house is declared to be judge of the election and qualification of its members, and re¬ 
quired to keep a journal of its proceedings. No regulation exists by law in Indiana as 
to the manner in which members of the State senate are to be inducted into office. No 
law or regulation is there existing providing the time, place, or manner of electing 
United States Senators. 

It appears by the journal of the senate of Indiana that on the opening of the senate 
at the meeting of the legislature, January 8, 1857, forty-nine of the senators were 
present, and that all the newly elected members were duly sworn, took their seats, and 
continued thereafter to act with the other senators till the close of the session. The 
only absentee senator took his seat January 13, 1857. Protests were filed contesting 
the seats of three of the newly elected members, which were afterwards examined and 
considered by the senate, and they were each found and declared to be entitled to seats, 
respectively, by majorities more or less numerous, all which is entered upon and appears 
by the journal of said senate. 

The State constitution makes it the duty of the speaker of the house of representa¬ 
tives to open and publish the votes for governor and lieutenant-governor in the presence 
of both houses of the general assembly. No provision exists by the constitution making 
such meeting or presence of the two houses a convention, or providing any officers there 
for, or authorizing or empowering the same to transact any business whatever, except 
by joint vote forthwith to proceed to elect a governor or lieutenant-governor in case of a 
tie vote. 

Both houses being in session, the speaker notified them that he should proceed to open 
and publish the votes for governor and lieutenant-governor on Monday the 12th day of 
January, at 2.30 o’clock p. m., in the hall of the house. Shortly before the hour arrived 
the president of the senate announced that he would proceed immediately to the hall of 
the house of representatives; and thereupon, together with such senators as chose to go, 
being a minority of the whole number thereof, he repaired to the hall of the house of 


•From Senate Reports, 1st sess. 35th Cong , vol. 1, Report No. 19, part 2. 





FITCH AND BRIGHT. 


251 


representatives, and there, in their presence, and in the presence of the memDers of the 
house, the votes for governor and lieutenant-governor were duly counted and published 
by the speaker, and A. P. Willard, the then president of the senate, was declared duly 
elected governor and A. A. Hainmon lieutenant-governor of said State. 

At the close of this business, a senator present, without any vote for that purpose, 
declared the meeting (by him then called a convention) adjourned to the 2d day of Feb¬ 
ruary, 1857, at 2 o’clock. 

The senate hearing of this proceeding, on the 29th day of January, 1857 as appears 
by its journal, passed a resolution protesting against the proceedings of said so-called 
convention, disclaiming all connection therewith or recognizance thereof, and protesting 
against any election of United States Senators or any other officer thereby. On the 2d 
of February, 1857, the president of the senate, with a minority of its members, again 
attended in the hall of the house, and without proceeding to any business, and without 
any vote, declared the meeting (by him called a convention) adjourned until the 4th day 
of February, 1857, at which time the president of the senate, with twenty-four of its 
members, went to the hall of the house of representatives, and there they, together with 
sixty-two members of the house, proceeded to elect two Senators of the United States, 
to wit, Graham N. Fitch, and Jesse D. Bright, they each receiving eighty-three votes, 
and no more, at their respective elections, twenty-three of which votes were by mem¬ 
bers of the senate. 

Against these elections so made protests by twenty-seven members of the senate of 
Indiana and thirty-five members of the house of representatives of said State have been 
duly presented, alleging that, in the absence of any law, joint resolution, or regulation 
of any kind by the two houses composing the legislature of Indiana providing for hold¬ 
ing a joint convention, it is not competent for a minority of the members of the senate 
and a majority, but less than a quorum, of the members of the bouse of representatives 
of said State to assemble together and make an election of United States Senators. 

Of the facts as herein stated there is no dispute, as we understand. 

It is now alleged by the sitting Senators, respectively, as we understand the substance 
of their allegations, in contradiction of the senate journal, that the three State senators 
whose seats were contested were not legally elected and qualified; that they were with¬ 
out the expressly required credentials, the certificate of the proper and only returning 
officer, and that they were, notwithstanding, directed to be sworn in by a presiding 
officer chosen for the purpose by the members of the senate designated as Republicans, for 
the clear purpose, illegal and fraudulent in fact, of defeating an election of Senators of 
the United States. 

Under these circumstances we object to the adoption of the resolution for the taking 
of testimony to sustain these allegations, because the said election of United States Sen¬ 
ators, so conducted, is obviously illegal and insufficient, and cannot be cured by any 
proof of these allegations; and we insist that the Senate should now proceed to a defini¬ 
tive decision of the question. 

Wednesday, February 3, 1858. 

[A short debate took place on the propriety of considering the report at that time. It 
is found on pages 543-545 of the Congressional Globe, part 1, 1st sess. 35th Cong.] 

Thursday, February 4, 1858. 

The Senate proceeded to consider the resolution reported by the Committee on the 
Judiciary, to whom was referred the protest against the election of the Hon. Jesse D. 
Bright and the Hon. Graham N. Fitch as Senators in Congress from the State of Indi¬ 
ana; and 

An amendment being proposed by Mr. Trumbull, 

After debate, 

On motion by Mr. Bayard that the resolution lie on the table, it was determined in 
the affirmative—yeas 29, nays 18. 

On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Allen, Bayard, Benjamin, Biggs, Big¬ 
ler, Broderick, Brown, Cameron, Clay, Davis, Douglas, Evans, Green, Gwin, Houston, 
Hunter, Iverson, Johnson of Tennessee, Jones, Kennedy, Mason, Polk, Pugh, Sebastian, 
Slidell, Stuart, Toombs, Wright, and Yulee. 

Those who voted in the negative are Messrs. Chandler, Collamer, Crittenden, Dixon, 
Doolittle, Durkee, Fessenden, Foot, Foster, Hale, Hamlin, Harlan, King, Seward, Sim¬ 
mons, Trumbull, Wade, and Wilson. 

So it was 

Ordered , That the resolution lie on the table. 

[A debate on the adoption of the resolution is found on pages 567-570 of the Congres¬ 
sional Globe, part 1, 1st sess. 35th Cong.] 


252 


SENATE ELECTION CASES. 


Monday, February 15, 1858. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary, to whom were referred the credentials of the Hon. Graham N. Fitch and 
the Hon. Jesse D. Bright, and the protest against their election as Senators in Congress 
from the State of Indiana; and 

The amendment proposed by Mr. Trumbull being under consideration, 

After debate, 

On motion by Mr. Hunter, 

Ordered , That the further consideration of the resolution be postponed until to-morrow 
at 1 o’clock. 

[The subject is debated on pages 698-710 of the Congressional Globe, part 1, 1st sess. 
35th Cong.] 

Tuesday, February 16,1858. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary in the case of the contested election of the Hon. Graham N. Fitch and 
the Hon. Jesse D. Bright; and 

On the question to agree to the following amendment, proposed by Mr. Trumbull: 
Strike out all after the word “resolved” and insert: 

‘ ‘ That the Senate will now proceed to a final determination of the right to seats in this 
body of Graham N. Fitch and Jesse D. Bright, claiming to have been elected Senators 
by the legislature of Indiana,” 

It was determined in the negative—yeas 16, nays 28. 

On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Chandler, Clark, Collamer, Dixon, 
Doolittle, Durkee, Fessenden, Foster, Hamlin, Harlan, King, Seward, Simmons, Sumner, 
Trumbull, and Wade. 

Those who voted in the negative are Messrs. Allen, Biggs, Bigler, Broderick, Brown, 
Cameron, Clay, Evans, Green, J&win, Hammond, Hunter, Iverson, Johnson of Arkansas, 
Johnson of Tennessee, Jones, Mallory, Mason, Polk, Pugh, Sebastian, Slidell, Stuart, 
Thompson of Kentucky, Thomson of New Jersey, Toombs, Wright, and Yulee. 

On motion by Mr. Seward to amend the resolution by adding thereto the following: 

“ Provided , That the proofs to be taken shall be limited to the swearing in of the 
members of the legislature of Indiana, the organization of the said legislature, and the 
proceedings thereof connected with the election of the sitting members for said State in 
the Senate of the United States, and shall be returned to the Senate of the United States 
within sixty days from the passage of this resolution,” 

A division was called for by Mr. Hale; and, the question being taken on the first 
clause, relating to the proofs to be taken, it was determined in the negative—yeas 19, 
nays 25. 

On motion by Mr. Mallory, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Broderick, Cameron, Chandler, Clark, 
Collamer, Dixon, Doolittle, Durkee, Fessenden, Foster, Hamlin, Harlan, King, Seward, 
Simmons, Stuart, Sumner, Trumbull, and Wade. 

Those who voted in the negative are Messrs. Allen, Biggs, Bigler, Brown, Clay, Evans, 
Green, Gwin, Hammond, Houston, Hunter, Iverson, Johnson of Arkansas, Johnson ol 
Tennessee, Jones, Kennedy, Mallory, Mason, Polk, Pugh, Sebastian, Slidell, Thompson 
of Kentucky, Toombs, and Yulee. 

On the question to agree to the second clause, as follows: “And shall be returned to 
the Senate of the United States within sixty days from the passage of this resolution,” 
A motion was made by Mr. Pugh to amend the same by striking out the word “sixty ” 
and inserting “ninety;” and it was determined in the affirmative—yeas 27, nays 18. 

On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Allen, Biggs, Bigler, Broderick, Brown, 
Clay, Evans, Green, Gwin, Hammond, Houston, Hunter, Iverson, Johnson of Arkansas, 
Johnson of Tennessee, Jones, Kennedy, Mallory, Mason, Polk, Pugh, Sebastian, Slidell, 
Thomson of New Jersey, Toombs, Wright, and Yulee. 

Those who voted in the negative are Messrs. Chandler, Clark, Collamer, Dixon, Doo¬ 
little, Durkee, Fessenden, Foster, Hamlin, Harlan, King, Seward, Simmons, Stuart, 
Sumner, Thompson of Kentucky, Trumbull, and Wade. 

On motion by Mr. Toombs to amend the amendment by adding thereto— 
u And provided, That no testimony shall be taken under this resolution in relation to 
the qualification, election, or return of any member of the Indiana legislature,” 

It was determined in the affirmative. 


FITCH AND BRIGHT. 


253 


The amendment as amended was then agreed to. 

On motion by Mr. Wilson further to amend the resolution by striking out the words 
‘‘any judge of the district court of the United States, or any judge of the supreme or 
circuit courts of the State of Indiana” and inserting: 

“The Hon. Oliver H. Smith, the Hon. John Pettit, and the Hon. John D. Defrees, 
who are hereby appointed commissioners for that purpose,” 

It was determined in the negative. 

On motion by Mr. Fessenden to amend the resolution by striking out the words ‘ ‘ the 
supreme or circuit courts ” and inserting “any court of record,” it was determined in 
the negative. 

The resolution as amended was then agreed to, as follows: 

“Resolved, That in the case of the contested election of the Hon. Graham N. Fitch and 
the Hon. Jesse D. Bright, Senators returned and admitted to their seats from the State 
of Indiana, the sitting members, and all persons protesting against their election, or any 
of them, by themselves or their agents or attorneys, be permitted to take testimony on 
the allegations of the protestants and the sitting members touching all matters of fact 
therein contained, before any judge of the district court of the United States, or any 
judge of the supreme or circuit courts of the State of Indiana, by first giving ten days’ 
notice of the time and place of such proceeding in some public gazette printed at Indi¬ 
anapolis: Provided , That the proofs to be taken shall be returned to the Senate of the 
United States within ninety days from the passage of this resolution: And provided, That 
no testimony shall be taken under this resolution in relation to the qualification, election, 
or return of any member of the Indiana legislature.” 

[The debate is found on pages 720-724 of the Congressional Globe, part 1,1st sess. 35th 
Cong.] 

Monday, April 19, 1858. 

Mr. Trumbull submitted the following motion; which was considered by unanimous 
consent, and agreed to: 

Ordered, That the Secretary of the Senate furnish, on application by any individual 
desiring to possess the same, an authenticated copy of the resolution agreed to on the 
16th of February, 1858, authorizing testimony to be taken in reference to the election 
of the Hon. Jesse D. Bright and the Hon. Graham N. Fitch as Senators from the State of 
Indiana. 

[Brief remarks on the resolution are found on pages 1658,1659 of the Congressional 
Globe, part 2, 1st sess. 35th Cong.] 

Saturday, May 15, 1858. 

The Vice-President laid before the Senate testimony in the case of the contested elec¬ 
tion of the Hon. Jesse D. Bright and the Hon. Graham N. Fitch as Senators of the 
United States from the State of Indiana, Which was referred to the Committee on the 
Judiciary. 

Tuesday, May 18, 1858. 

Mr. Bright presented affidavits of C. K. Drew, R. D. Slater, and W. J. Cullen, evidence 
in the case of the contested election of the Hon. Jesse D. Bright and the Hon. Graham 
N. Fitch as Senators from the State of Indiana, which were referred to the Committee 
on the Judiciary. 

Monday, May 24, 1858. 

Mr. Pugh, from the Committee on the Judiciary, to whom were referred the creden¬ 
tials of Graham N. Fitch and Jesse D. Bright, Senators from the State of Indiana, to¬ 
gether with the documents and testimony relative to that subject, submitted a report 
(No. 275), accompanied by the following resolution. [For resolution see report.] 

REPORT OF COMMITTEE.* 

[The committee consisted of Messrs. Bayard (chairman), Sebastian, Pngh, Benjamin, 
Green, Collamer, and Trumbull.] 

The Committee on the Judiciary, to whom were referred the credentials of Graham 
N. Fitch and Jesse D. Bright, Senators from the State of Indiana, together with the doc¬ 
uments and testimony relative to that subject, have had the same under consideration, 
and report, by resolution, as follows: 

Resolved, That Graham N. Fitch and Jesse D. Bright, Senators returned and admitted 

* The testimony accompanying this report may be found in Senate Reports, 1st sess. 35th Cong., 
vol. 2 Report No. 275. This is the fourth report made by the Committee on the Judioiary on the 
credentials of Mr. Fitch, and the second one to include the credentials of Mr. Bright. 




254 


SENATE ELECTION CASES. 


from the State of Indiana, are entitled to the seats which they now hold in the Senate 
as such Senators aforesaid, the former until the 4th of March, 1861, and the latter until 
the 4th of March, 1863, according to the tenor of their respective credentials. 

[Some remarks by members of the committee, asking for an opportunity to examine* 
the report before it is printed, are found on pages 2353, 2354 of the Congressional Globe, 
part 3, 1st sess. 35th Cong.] 

Monday, June 7, 1858. 

Mr. Pugh presented an affidavit of John W. Blake, relative to the election of the 
Hon. Jesse D. Bright and the Hon. Graham N. Fitch as Senators in Congress from the 
State of Indiana. 

Ordered , That it lie on the table. 

Thursday, June 10, 1858. 

On motion by Mr. Bright, the Senate proceeded to consider the resolution reported 
by the Committee on the Judiciary, declaring the Hon. Jesse D. Bright and the Hon. 
Graham N. Fitch, Senators from the State of Indiana, entitled to their seats in the Sen¬ 
ate; and, 

On motion by Mr. Bright, 

Ordered , That the further consideration thereof be postponed to, and made the special 
order of the day for, to-morrow at 12 o’clock. 

[A brief debate on the postponement of the consideration of the resolution is found on 
page 2876 of the Congressional Globe, part 3, 1st sess. 35th Cong.] 

Friday, June 11, 1858. 

The Senate resumed the consideration of the resolution reported from the Committee 
on the Judiciary, declaring the Hon. Jesse D. Bright and the Hon. Graham N. Fitch, 
Senators in Congress from the State of Indiana, entitled to their seats in the Senate; 
and, 

An amendment being proposed by Mr. Hamlin, 

On motion by Mr. Trumbull to amend the proposed amendment, 

After debate, 

Ordered , That the further consideration thereof be postponed to, and made the special 
order of the day for, to-morrow at 12 o’clock. 

[An extended debate on the adoption of the resolution is found on pages 2923-2949 of 
the Congressional Globe, part 3, 1st sess. 35th Cong. ] 

Saturday, June 12, 1858. 

The Senate resumed the consideration of the resolution reported from the Committee 
on the Judiciary, declaring the Hon. Jesse D. Bright and the Hon. Graham N. Fitch, 
Senators in Congress from the State of Indiana, entitled to their seats in the Senate. 

A motion was made by Mr. Hamlin to amend the resolution by striking out all after 
the word “resolved,” and inserting: 

“That the case of Jesse D. Bright and Graham N. Fitch be recommitted to the Com¬ 
mittee on the Judiciary, with instructions to report specially the grounds on which the 
resolution is based declaring said Bright and Fitch elected.” 

On motion by Mr. Trumbull to amend the proposed amendment by striking out all 
after the word “ that ” and inserting “in the opinion of the Senate, no election of a mem¬ 
ber of this body made by the legislature of a State consisting of two branches is valid, 
when made in a meeting of individual members of both, unless such meeting for that 
purpose was prescribed by law, or had been previously agreed to by each house acting 
separately in its organized capacity, or is participated in by a majority of the members 
of each house, or is subsequently ratified in some form by each house in its organized 
capacity,” it was determined in the negative—yeas 17, nays 26. 

On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Broderick, Chandler, Clark, Dixon, 
Doolittle, Durkee, Fessenden, Foot, Foster, Hamlin, Harlan, King, Seward, Simmons, 
Trumbull, Wade, and Wilson. 

Those who voted in the negative are Messrs. Allen, Benjamin, Bigler, Brown, Clay, 
Clingman, Davis, Fitzpatrick, Green, Gwin, Hammond, Hayne, Iverson, Jones, Mal¬ 
lory, Mason, Polk, Pugh, Reid, Rice, Sebastian, Slidell, Thomson of New Jersey, 
Toombs, Wright, and Yulee. 

On the question to agree to the amendment proposed by Mr. Hamlin, it was deter¬ 
mined in the negative—yeas 16, nays 34. 

On motion by Mr. Fessenden, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 


LANE AND MCCARTY VS. FITCH AND BRIGHT. 


255 


Those who voted in the affirmative are Messrs. Chandler, Clark, Dixon, Doolittle, 
Durkee, Fessenden, Foot, Foster, Hamlin, Harlan, King, Seward, Simmons, Trumbull, 
Wade, and Wilson. 

Those who voted in the negative are Messrs. Allen, Benjamin, Bigler, Broderick, 
Brown, Clay, Clingman, Collamer, Fitzpatrick, Green, Gwin, Hammond, Hayne, Hous¬ 
ton, Hunter, Iverson, Johnson of Arkansas, Johnson of Tennessee, Jones, Kennedy, 
Mallory, Mason, Pearce, Polk, Pugh, Reid, Rice, Sebastian, Slidell, Thompson of Ken¬ 
tucky, Thomson of New Jersey, Toombs, Wright, and Yulee. 

So the amendment was not agreed to. 

On motion by Mr. Trumbull to amend the resolution by inserting after the word 
“are” and before the word “entitled” the word “not,” it was determined in the neg¬ 
ative—yeas 23, nays 30. 

On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Broderick, Chandler, Clark, Collamer, 
Dixon, Doolittle, Douglas, Durkee, Fessenden, Foot, Foster, Hale, Hamlin, Harlan, 
Houston, King, Mason, Pearce, Seward, Simmons, Trumbull, Wade, and Wilson. 

Those who voted in the negative are Messrs. Allen, Benjamin, Bigler, Brown, Clay, 
Clingman, Davis, Fitzpatrick, Green, Gwin, Hammond, Hayne, Hunter, Iverson, John¬ 
son of Arkansas, Johnson of Tennessee, Jones, Kennedy, Mallory, Polk, Pugh, Reid, 
Rice, Sebastian, Sildell, Thompson of Kentucky, Thomson of New Jersey, Toombs, 
Wright, and Yulee. 

No further amendment being proposed, the resolution reported by the Committee on 
the Judiciary was then agreed to, as follows: 

“Resolved , That Graham N. Yitch and Jesse D. Bright, Senators returned and admitted 
from the State of Indiana, are entitled to the seats which they now hold in the Senate 
as such Senators aforesaid, the former until the 4th of March, 1861, and the latter until 
the 4th of March, 1863, according to the tenor of their respective credentials.” 

[No debate took place this day.] 

[Second session of the Thirty-fifth Congress.] 

Credentials of Henry 8. Lane and William Monroe McCarty. 

Monday, January 24, 1859. 

The Vice-President presented a memorial of the State of Indiana, by its senators and 
representatives in general convention assembled, representing that it is the wish and de¬ 
sire of the State that the Hon. Henry S. Lane and the Hon. William Monroe McCarty 
be admitted to seats in the Senate of the United States as the only legally elected and 
constitutionally chosen Senators of the State of Indiana; which was read. 

On motion by Mr. Trumbull, 

Ordered , That it be referred to the Committee on the Judiciary and be printed. 

[The memorial is printed on pages 534, 535 of the Congressional Globe, part 1, 2d 
sess. 35th Cong.] 

* * * * * * * 

Mr. Seward submitted the following resolution for consideration: 

“Resolved , That the Hon. Henry S. Lane and the Hon. William M. McCarty, who 
claim to have been elected Senators from the State of Indiana, be entitled to the privi¬ 
leges of admission on the floor of the Senate until their claims shall have been decided.” 

Wednesday, January 26, 1859. 

On motion by Mr. Seward, the Senate proceeded to consider the resolution, submitted 
by him the 24th instant, to admit the Hon. Henry S. Lane and the Hon. W. M. McCarty, 
claiming to have been elected Senators by the legislature of Indiana, on the floor of the 
Senate; and 

After debate, 

On motion by Mr. Iverson that the resolution lie on the table, it was determined in 

the affirmative—yeas 31, nays 22.* 

On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Allen, Bates, Bayard, Benjamin, Big¬ 
ler, Brown, Chesnut, Clingman, Davis, Fitzpatrick, Green, Gwin, Hammond, Houston, 
Hunter, Iverson, Johnson of Tennessee, Kennedy, Mallory, Mason, Polk, Pugh, Reid, 
Rice, Sebastian, Shields, Slidell, Stuart, Thomson of New jersey, Toombs, and Ward. 

Those who voted in the negative are Messrs. Bell, Broderick, Cameron, Chandler, 
Clark, Collamer, Crittenden, Dixon, Doolittle, Durkee, Fessenden, Foot, Foster, Hale, 
Hamlin, Harlan, King, Seward, Simmons, Trumbull Wade, and Wilson. 

So it was 

Ordered , That the resolution lie on the table. 


256 


SENATE EELCTION CASES. 


[A debate on the adoption of the resolution is found on pages 599-602 of the Congres* 
sional Globe, part 1, 2d sess. 35th Cong.] 

Friday, January 28, 1858. 

Mr. Douglas presented a certified copy of that portion of the journal of the senate of 
the State of Indiana of the 22d of December, 1858, also a certified copy of that portion 
of the journal of the house of representatives of the State of Indiana of the 22d of De¬ 
cember, 1858, relating to the election of United States Senators; which were referred to 
the Committee on the Judiciary. 

Thursday, February 3, 1859. 

Mr. Bayard, from the Committee on the Judiciary, to whom was referred a memorial 
of the State of Indiana, by her senators and representatives in general convention assem¬ 
bled, requesting that the Hon. Henry S. Lane and the Hon. William Monroe McCarty 
be admitted to seats in the Senate of the United States as the only legally elected and 
constitutionally chosen Senators of that State; also certified copies of the proceedings of 
the senate and house of representatives of the State of Indiana of the 22d of December, 
1858, relative to the election of United States Senators, submitted a report, asking that 
the committee be discharged from the further consideration of the memorial of the legis¬ 
lature of Indiana. 

On motion by Mr. Bayard, 

Ordered , That the report lie on the table and be printed. 

Mr. Collamer submitted the views of the minority of the Committee on the Judiciary 
on the subject; which were ordered to be printed. 

* # * * * * * 

Mr. Seward submitted the following resolution for consideration: 

‘ ‘Resolved , That Henry S. Lane and William M. McCarty have leave to occupy seats 
on the floor of the Senate pending the discussion of the report of the Committee on the 
Judiciary on the memorial of the legislature of Indiana declaring them her duly elected 
Senators, and that they have leave to speak to the merits of their right to seats and the 
report of the committee.” 

REPORT OF COMMITTEE.* 

[The committee consisted of Messrs. Bayard (chairman), Pugh, Benjamin, Green, 
Clingman, Collamer, and Trumbull.] 

Mr. Bayard submitted the following report: 

The Committee on the Judiciary, to whom was referred the memorial of the State of 
Indiana, by her representatives and senators in general convention assembled, repre¬ 
senting that it is her wish and desire that the Hon. Henry S. Lane and the Hon. Will¬ 
iam Monroe McCarty be admitted to seats in the Senate of the United States as the 
only legally elected and constitutionally chosen Senators of that State, submit the fol¬ 
lowing report: 

That the Hon. Graham N. Fitch, on the 9th day of February, 1857, was admitted by 
the Senate on the customary prima facie evidence of his election as a Senator from the 
State of Indiana, to serve as such until the 4th day of March, A. D. 1861; was qualified 
and took his seat as a Senator. On the same day resolutions of the senate of Indiana 
adverse to the legality of his election and a protest of certain members of the house of 
representatives of the same State against the validity of the election were presented to 
the Senate; and the credentials of Mr. Fitch, the resolutions of the senate of Indiana, 
and the protest of the members of the house of representatives against the validity of 
the election were referred to the Committee on the Judiciary. 

The committee on the 26th of February reported a resolution authorizing testimony 
to be taken both by the sitting members and the protestants in relation to all matters 
of fact contained in their respective allegations. This report was ordered to lie upon 
the table on the 2d of March, 1857, and no further action was had upon the subject 
during that session. At the called session of the Senate the papers on file relating to 
the election of Mr. Fitch, were on the 9th of March 1857, on motion of Mr. Trumbull 
referred to the Committee on the Judiciary, and on the 14th of March the committee 
reported a resolution authorizing testimony to be taken—slightly variant from the reso¬ 
lution reported at the preceding session. The resolution was on the same day ordered to 
lie on the table. The credentials of the Hon. Jesse D. Bright, elected a Senator from 
the State of Indiana, to serve as such until the 4th day of March, 1863, were presented 
to the Senate and read on the 2d day of March, 1857; and at the called session of the 
Senate, on the 4th day of March, A. D. 1857, Mr. Bright was qualified and took his 

* Annexed to the report, which is taken from Senate Reports, 2d sess. 35th Cong., Report No. 368, 
are the reports made January 21 and 25,1858, which are printed above. 




LANE AND M C CARTY VS. FITCH AND BRIGHT. 


257 


seat. At the first session of the present Congress, on the 17th of December, 1858, on 
motion of Mr. Trumbull, the credentials of the sitting members from Indiana, together 
with all papers on file protesting against their right to seats, or relating to their election 
as Senators in Congress by the legislature of Indiana, were referred by the Senate to the 
Committee on the Judiciary. On the 21st of January, 1858, the committee made a re¬ 
port, concluding with a resolution similar to the resolution which had previously been 
reported in relation to the case of Mr. Fitch, authorizing testimony to be taken; and on 
the 25th of the same month Mr. Trumbull submitted the views of the minority of the 
committee. 

Both the report of the committee and the views of the minority were printed and are 
appended as part of this report, with a view to the illustration of the questions pre¬ 
sented to the Senate, upon which its decision was subsequently made. 

On the 16th of February, 1858, the consideration of the resolution reported by the 
committee was resumed, and, after the rejection of some proposed amendments and the 
adoption of others, the following resolution was passed by the Senate: 

“j Resolved, That in the case of the contested election of the Hon. Graham N. Fitch 
and the Hon. Jesse D. Bright, Senators returned and admitted to their seats from the 
State of Indiana, the sitting members and all persons protesting against their election, 
or any of them, by themselves or their agents or attorneys, be permitted to take testi¬ 
mony on the allegations of the protestants and the sitting members touching all mat¬ 
ters of fact therein contained before any judge of the district court of the United 
States or any judge of the supreme or circuit courts of the State of Indiana, by first 
giving ten days’ notice of the time and place of such proceeding in some public gazette 
printed at Indianapolis: Provided , That the proofs to be taken shall be returned to the 
Senate of the United States within ninety days from the passage of this resolution: 
And provided , That no testimony shall be taken under this resolution in relation to the 
qualification, election, or return of* any member of the Indiana legislature.” 

Testimony was subsequently taken by the protestants, which was, together with cer¬ 
tain affidavits presented on behalf of the sitting members and documentary evidence 
referred to the Committee on the Judiciary, and on the 24th day of May, 1858, Mr. 
Pugh from that committee reported the following resolution: 

“ Resolved , That Graham N. Fitch and Jesse D. Bright, Senators returned and ad¬ 
mitted from the State of Indiana, are entitled to the seats which they now hold in the 
Senate as such Senators aforesaid, the former until the 4th of March, 1861, and the latter 
until the 4th of March, 1863, according to the tenor of their respective credentials.” 

This resolution and the accompanying documents were on the same day ordered to be 
printed. 

The resolution was under consideration in the Senate, and fully debated at several 
subsequent times, and was finally, after the rejection of several proposed amendments, 
passed by the Senate without amendment or alteration. In the opinion of the com¬ 
mittee, this resolution (no motion having been made to reconsider it) finally disposed of 
all questions presented to the Senate involving the respective rights of the Hon. Graham 
N. Fitch and the Hon. Jesse D. Bright to their seats in the Senate, as Senators from the 
State of Indiana for the terms stated in the resolution. It appears by the memorial 
that the legislature of Indiana, at its recent session in December last, assumed the power 
of revising the final decision thus made by the Senate of the United States under its 
unquestioned and undoubted constitutional authority to “be the judge of the qualifica¬ 
tions of its own members.” Under this assumption, it also appears by the journals of 
the senate and house of representatives of the State of Indiana, the legislature of Indiana, 
treating the seats of the Senators from that State as vacant, proceeded, subsequently, 
by a concurrent vote of the senate and house of representatives of the State, to elect the 
Hon. Henry S. Lane as a Senator of the United States for the State^of Indiana, to serve 
as such until the 4th of March, 1863, and the Hon. William Monroe McCarty as a Sena¬ 
tor for the same State, to serve as such until the 4th of March, A. D. 1861. Under this 
action of the legislature of Indiana those gentlemen now claim their seats in the Senate 
of the United States. 

It may be concec^d that the election would have been valid, and the claimants enti¬ 
tled to their seats, had the legislature of Indiana possessed the authority to revise the 
decision of the Senate of the United States that Messrs. Fitch and Bright had been duly 
elected Senators from Indiana, the former until the 4th of March, 1861, and the latter 
until the 4th of March, 1863. 

In the opinion of the committee, however, no such authority existed in the legislature 
of Indiana. There was no vacancy in the representation of that State in the Senate; and 
the decision of the Senate, made on the 12th of June, 1858, established finally and (in 
the absence of a motion to reconsider) irreversibly the right of the Hon. Graham N. 
Fitch as a Senator of the State of Indiana until the 4th of March, 1861, and the right of 
the Hon. Jesse D. Bright as a Senator from the same State until the 4th of March, A. 
D. 1863 


S. Doc. 11-17 



258 


SENATE ELECTION CASES. 


The decision was made by an authority having exclusive jurisdiction of the subject; 
was judicial in its nature; and, being made on a contest in which all the facts and ques¬ 
tions of law involving the validity of the election of Messrs. Fitch and Bright, and their 
respective rights to their seats, were as fully known and presented to the Senate as they 
are now in the memorial of the legislature of Indiana, the judgment of the Senate then 
rendered is final, and precludes further inquiry into the subject to which it relates. 

There being, by the decision of the Senate, no vacancy from the State of Indiana in 
the Senate of the United States, the election held by the legislature of that State at its 
recent session is, in the opinion of the committee, a nullity, and merely void, and con¬ 
fers no rights upon the persons it assumed to elect as Senators of the United States.. 

The committee ask to be discharged from the further consideration of the mem orial 
of the legislature of Indiana. 


VIEWS OF THE MINORITY.* 

Mr. Collamer submitted the following views of the minority: 

The power of the Senate to judge of the election and qualification of its own members 
is unlimited and abiding. It is not exhausted in any particular case by once adjudi¬ 
cating the same, as the power of re-examination and the correction of error or mistake 
incident to all judicial tribunals and proceedings remains with the Senate in this respect, 
as well to do justice to itself as to the States represented or to the persons claiming or 
holding seats. Such an abiding power must exist, to purge the body from intruders, 
otherwise any one might retain his seat who had once wrongly procured a decision of 
the Senate in his favor by fraud or falsehood, or even by papers forged or fabricated. 

In what cases and at whose application a rehearing will at all times be granted is not 
now necessary to inquire; but when new parties, with apparently legal claim, apply, 
and especially when a sovereign State, by its legislature, makes respectful application to 
be represented by persons in the Senate legally elected, and insists that the sitting mem¬ 
bers from that State were never legally chosen, we consider that the subject should be 
fully re-examined, and that neither the State, the legislature, or the persons now claim¬ 
ing seats can legally or justly be estopped, or even prejudiced, by any former proceed¬ 
ings of the Senate to which they were not parties. 

At the first session of the legislature of Indiana after the present sitting members 
were declared by the Senate as entitled to their seats, and at the earliest time it could 
take action, it declared their pretended election as inoperative and void, and that the 
State was infact unrepresented; and they proceeded to elect H. S. Lane and William M. 
McCarty as Senators of the United States for said State, according to the Constitution ol 
the United States; and they send here their memorial, alleging that the present sitting 
members were never legally elected; and they show facts, in addition to what was here¬ 
tofore presented to the Senate, tending, as they consider, to sustain this allegation. The 
said Lane and McCarty present their certificates and claim their seats. We consider the 
matters stated in said memorial as true. The said Lane and McCarty have presented 
their brief sustaining theii claim to seats, which is in the words following: 

Brief of W. M. McCarty and Henry S. Lane, submitted to the Judiciary Committee of the 

Senate. 

The State is entitled to the office. The legislature is her supreme instrument and 
donee of the power to elect Senators. It is the creature of the constitution, which is 
the chart of its power, vested only in two co-ordinate branches; a quorum of two-thirds 
of the members is requisite to give either a legal entity; each is equivalent in power, 
with an absolute veto on the power of the other. 

The legislature is a corporation aggregate, with only such power as its creator has seen 
fit to endow it with, to be exercised in conformity to the laws of its birth. 

To the joint wisdom and counsel of these colleges is the legislative power intrusted. It 
is not parceled out to its component elements in integrals, neither is it vested in an 
amalgamated body of the two. The one is erected as a barrier to the other. The ordeal 
of both must be passed. This guaranty against abuse cannot be broken down without 
destroying one of the safeguards of our Government. The sovereign voice is an unit. 
The power that utters it is an entirety—an invisible, intangible, artificial person. The 
power is in the organism called “the general assembly,” and not in the individual 
members. It is not the rights or powers of the members, but the delegated trust powers 
of the State that are wielded in senatorial elections or other exercises of legislative 
powers. Without a quorum of either house it did not exist—without either, the legis¬ 
lature did not exist, and without a legislature no election would be had. 

Now, the facts are that a quorum of neither house was present at the pretended elec- 


* Taken from Senate Reports, 2d sess. 35tli Cong., Report No. 368, part 2. 






LANE AND M C CARTY VS. FITCH AND BRIGHT. 259 

tion ol Messrs. Bright and Fitch, nor even a majority of the senate, nor did either house 
prescribe the time, place, or manner of electing. 

It is of the essence of legislative power that its exercise shall be free from all restraint; 
each body free to deliberate and act in its duties; each entitled to its full powers. The 
facts are that the senate, upon eight occasions, refused to go into joint convention with the 
house, and at no time consented. She could not be compelled to merge her individuality, 
or surrender her veto power, or adopt the joint-vote mode of electing Senators; or, in 
other words, dilute or annihilate her power, upon the mandate of the house, as that 
would degrade her from an equal to an inferior. On the contrary she had the right to 
determine the time, place, and manner, and did do it by resolution, to elect by separate 
vote, at a proper time, in which the house never concurred. Where diverse duties are 
imposed, she must determine which are most imperative and shall have priority. 

The constitution of Indiana only provides for a joint convention upon the contingency 
of a tie vote for governor and lieutenant-governor. That contingency did not exist; 
therefore the convention did not. To say that a duty to form a joint convention creates 
it is as absurd as to say that the subpoena of a witness works his presence, or the com¬ 
mands of the decalogue their observance. 

Failing to get the senate into a joint convention, a false record of that pretended fact 
was made, to be used as evidence, and which has been used as veritable and true, and 
the absolute verity and the unimpeachable quality of a record claimed for the fabrication. 

The resolves of the senate are those of the whole body. The mutinous senators who 
usurped the name and power of the senate in said pretended convention were subject to 
arrest by order of that body for absence, and the attempt to nullify the wiW of the ma¬ 
jority by attempting a business at a time, place, and in a manner vetoed by that body 
by a resolve, then unvacated and unrescinded. Said convention, if it existed, expired 
with the duty that called it into life. The president of the senate, when inaugurated 
governor, his office as president of the senate expired, and with it that of his deputy 
president. The president not only usurped the power to appoint a clerk—an office 
not known to the law and void—who only authenticated this pretended election by inter¬ 
polating it into the journal of the house. This president, whose power expired with 
that of his creator, arrogated that of adjourning it to a fixed day; in other words, com¬ 
manding it to obey his arbitrary rescript; and, at a subsequent one, the more imperious 
mandate commanded them to elect Senators, no agreement whatever having been had 
by the house therefor as to time, place, and manner. 

We aver that not only did no usage exist in Indiana, but that in no solitary instance 
was an election had without the consent of both houses, fixing time, place, &c., by law 
or resolution. While said pretended convention was in existence, but adjourned to a 
fixed day, numerous attempts were made in both houses to create one by the members 
who voted for Messrs. Bright and Fitch; thus offering evidence that they did not con¬ 
sider that one had been formed and was in existence. No forced convention could be 
had. Mutual consent was necessary, and it was never had by a vote, which is the only 
mode of altering the will of a legislative body. 

The history of joint conventions in Indiana will also show that no other business was 
ever transacted than that for which it was specially convened. And we insist that the 
validity of the acts of a joint convention is due to the separate action of the two houses 
as the general assembly. It is also necessary to the validity of all elections by corporate 
bodies that notice be given of the time, &c., and the journals of neither house show any 
such notice or any conventional agreement for the same. 

Upon the facts and law above no legal election could have been had. 

To sustain the title of Messrs. Bright and Fitch, the constitution of Indiana, deposit¬ 
ing her legislative power in two co-ordinate houses, must be broken down—that which 
requires two-thirds of the members to exercise any of her attributes of sovereignty, and 
that one house cannot coerce the other. Not only is this election in defiance of these 
inj unctions, but in the face of a positive dissent by one branch, armed by the people 
with an absolute veto. But a presiding officer, who is no part of the legislature, usurped 
the powers and prerogatives of the legislature; all the forms and guarantees with which 
the people hedged in their legislative servant were disregarded, and it is claimed that 
the act is as valid as if they had been observed. 

To sustain Messrs. Bright and Fitch the constitution of Indiana is made a dead letter. 
Will the Senate, the peculiar guardians of State rights, reared up for that especial pur¬ 
pose, exclude Indiana from her weight and voice in it by instruments empowered by 
her? Will she be allowed to interpret her own constitution and acts, or will the Sen¬ 
ate, under any pretense, blot her out of the confederacy, and realize all those fears por¬ 
trayed by some of the framers of the Constitution by an absorbtion of and encroachment 
upon State rights? 

The legislative power enshrines and protects all rights subject to its jurisdiction. Prior 
to the confederation the several States owed this duty to their citizens. They did not 


SENATE ELECTION CASES. 


260 

surrender it, but intrusted it to the Federal for their better protection with the right 
guaranteed them of a voice in the Senate, as a means of enforcing this duty through the 
Federal instrument. 

We deny that under a constitutional grant of power, with prescribed modes ot its 
exhibition, that you can discriminate between elections and laws. The selection ol a 
general, upon whose skill the fate of an army or the country may depend, or of a judge 
upon whose legal attainments and integrity the lives, liberties, and property of the citi¬ 
zen may depend, is of less moment than some petty law. 

The same power is as requisite to the creation of the one as the other. 

But it may be said that this question is res adjudicata. 

We deny that our rights or title are barred by a decision had before they were created. 

We deny that the judicial power of the Senate is capable of self-exhaustion. We 
deny that the political right of the State is capable of annihilation without annihilating 
the Constitution which creates the right. 

We insist that the right to judge of the election and qualification of members must 
continue while the term continues. 

The qualifications are continuing conditions of title. 

We deny that courts are ever estopped by their own action. 

We deny that sovereigns are estopped. 

We deny that Indiana was, prior to this time, a party to the proceedings of the Sen¬ 
ate, or had opportunity to allege or elicit the true facts. 

We deny the power of the Senate, under the power to judge, to create Senators for In¬ 
diana. 

We claim for her a superior knowledge of her own acts and grants. 

We insist that the simple admission of a Senator to his seat upon credentials is a de¬ 
cision, and that it was never pretended this precluded his ouster if his title were not good. 

If the Senate have not power to exclude foreign elements at all times, it is not equal 
to the duties intrusted to its guardianship. 

And we will not believe that the Senate is the only tribunal on earth whose wrongs, 
once done, are eternal and irrevocable. 

W. M. McCARTY. 

H. S. LANE. 

In the case of the State of Mississippi, in the House of Representatives in the Twenty- 
fifth Congress, the power to re-examine a decision made on an election of members was 
fully considered and decided. Gohlston and Claiborne were, at a special election held on 
the proclamation of the governor, chosen representatives from that State to a special ses¬ 
sion of Congress, called by the President. At that session exception was taken to them, 
but after some objection they were admitted to their seats. Their case and papers were 
referred to the Committee on Elections, who made report, and thereupon, on full and 
elaborate discussion, it was resolved that they were duly elected members of the Twen¬ 
ty-fifth Congress, and entitled to their seats. This was in September. In November 
following an election was holden in said State, and Prentiss and Ward were elected 
members of the Twenty-fifth Congress, who, in December following, presented their cre¬ 
dentials and claimed their seats. It was then insisted in that case, as it now is in this, 
that the decision so before made was conclusive of the right of Claiborne and Gohlston 
to their seats as members of the Twenty-fifth Congress, and the whole matter was “res 
adjudicata. ’ ’ But on full examination and after full discussion, the former resolution 
declaring said Caliborne and Gohlston as duly elected members of the Twenty-fifth 
Congress was rescinded. 

We are therefore of opinion that the memorial of the legislature of Indiana should be 
duly entertained and considered, and the said Lane and McCarty fully heard; and that 
if on full examination and hearing the Senate find that the present sitting members were 
not duly elected, the resolution declaring them elected should be reconsidered. And if 
the Senate find that the said Lane and McCarty were legally elected they should be 
admitted to their seats. 

J. COLLAMER. 

L. TRUMBULL. 

Thursday, February 10, 1859. 

On motion by Mr. Bayard, the Senate proceeded to consider the report of the Com¬ 
mittee on the Judiciary on the memorial of the legislature of Indiana asking that the 
Hon. Henry S. Lane and the Hon. William M. McCarty be admitted to seats in the Senate 
of the United States, as Senators duly elected by that legislature; and, 

On motion by Mr. Bayard, 

Ordered , That the farther consideration thereof be postponed until to-morrow. 

On motion by Mr. Seward, the Senate proceeded to consider the resolution, submitted 


LANE AND MCCARTY VS. FITCH AND BRIGHT. 


261 


by him the 3d instant, to admit the Hon. Henry S. Lane and the Hon. William M. Mc¬ 
Carty to seats on the floor of the Senate during the discussion of the report of the Com¬ 
mittee on the J udiciary in relation to their election, and to permit them to speak on the 
merits of their rights to seats in the Senate; and, 

On motion by Mr. Seward, 

Ordered , That the further consideration thereof be postponed until to-morrow. 

[A short debate is found on pages 922, 923 of the Congressional Globe, part 1, 2d sess. 
35th Cong.] 

******* * 

On motion by Mr. Seward to postpone all prior orders to consider the report of the 
Committee on the J udiciary on the memorial of the State of Indiana in relation to the 
representation of that State in the Senate of the United States, it was determined in the 
negative—yeas 19, nays 20. 

On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Bell, Broderick, Cameron, Chandler, 
Clark, Collamer, Crittenden, Doolittle, Durkee, Foot, Harlan, Johnson of Tennessee, 
King, Seward, Simmons, Thompson of Kentucky, Trumbull, Wade, and Wilson. 

Those who voted in the negative are Messrs. Allen, Bates, Benjamin, Bigler, Brown, 
Clingman, Davis, Fitzpatrick, Gwin, Houston, Hunter, Jones, Mallory, Mason, Pugh, 
Reid, Sebastian, Shields, Slidell, and Ward. 

So the motion was not agreed to. 

[A short debate on the order of business is found on pages 933, 934 of the Congres¬ 
sional Globe, part 1, 2d sess. 35th Cong.] 


Fbiday, February 11, 1859. 

On motion by Mr. Seward, the Senate resumed the consideration of the report of the 
Committee on the Judiciary on the memorial of the State of Indiana, relating to the 
Senators of that State, viz, that the committee be discharged from the further consid¬ 
eration of the memorial. 

An amendment being submitted by Mr. Seward, and an amendment to that amend¬ 
ment being proposed by Mr. Pugh, 

While Mr. Seward was engaged in debate a question was raised, at 1 o’clock, by Mr. 
Iverson, whether the special order of the day (S. 497), being the unfinished business of 
yesterday, was not entitled to precedence. 

The Vice-President decided that Mr. Seward was still entitled to the floor, on a priv¬ 
ileged question. 

On motion by Mr. Pugh that the report of the committee, with the pending amend¬ 
ments, lie on the table, it was determined in the affirmative—yeas 31, nays 20. 

On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Allen, Bayard, Benjamin, Bigler, 
Brown, Chesnut, Clay, Clingman, Davis, Fitzpatrick, Gwin, Hammond, Houston, 
Hunter, Iverson, Johnson of Arkansas, Johnson of Tennessee, Jones, Kennedy, Mallory, 
Mason, Polk, Pugh, Reid, Rice, Sebastian, Slidell, Stuart, Thompson of Kentucky, 
Toombs, and Ward. 

Those who voted in the negative are Messrs. Bates, Bell, Broderick, Cameron, Chand¬ 
ler, Clark, Collamer, Doolittle, Douglas, Durkee, Fessenden, Foot, Hale, Harlan, King, 
Seward, Simmons, Trumbull, Wade, and Wilson. 

[A short debate is found on pages 957-959 of the Congressional Globe, part 1, 2d sess. 
35th Cong.] 

Monday, February 14, 1859. 

On motion by Mr. Collamer, the Senate proceeded to consider the report of the Com¬ 
mittee on the Judiciary on the memorial of the State of Indiana in relation to the Sena¬ 
tors from Indiana, with the reported resolution, that the Committee on the Judiciary be 
discharged from the further consideration of the memorial of the legislature of Indiana. 

An amendment having been proposed by Mr. Seward, to amend the resolution to dis¬ 
charge the Committee on the Judiciary by striking out all after “resolved” and insert- 
ing, 

“That Henry S. Lane and William M. McCarty have leave to occupy seats on the floor 
of the Senate pending the discussion of the report of the Committee on the Judiciary on 
the memorial of the legislature of Indiana declaring them her duly elected Senators, and 
that they have leave to speak to the merits of their rights to seats and on the report of 
the committee, ’ ’ 

On motion by Mr. Pugh to amend the amendment proposed by Mr. Seward, by strik¬ 
ing out all after “that” and inserting “the resolution of the Senate, adopted June 12, 


262 


SENATE ELECTION CASES. 


1858, affirmin g the right of Graham N. Fitch and Jesse D. Bright as Senators elected 
from the State of Indiana, the former until the 4th day of March, 1861, and the lat¬ 
ter until the' 4th day of March, 1863, was a final decision ol all the premises then in 
controversy, and conclusive as well upon the legislature of Indiana, and all persons 
claiming under its authority, as upon the Senators named in the resolution.” 

On motion by Mr. Harlan “That all the papers in this case be recommitted to the 
Committee on the Judiciary with instructions to inquire whether Graham N. Fitch and 
Jesse D. Bright or Henry S. Lane and W. M. McCarty, or any one of them, has been 
elected to the office of Senator of the United States from the State of Indiana as provided 
by the Constitution of the United States, and in accordance with the laws and usages of 
the State of Indiana, and report the facts connected with and bearing on the supposed 
election of each to the Senate, and that the contestants be allowed to appear at the bar 
of the Senate when such report shall be made and argue their right to seats, ’ ’ 

After debate, 

A division of the motion made by Mr. Harlan was called for by Mr. Stuart; and the 
question being taken on the first division, viz, “That all the papers in this case be re¬ 
committed to the Committee on the Judiciary,” it was determined in the negative— 
yeas 14, nays 32. 

On motion by Mr. Pugh, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Cameron, Chandler, Clark, Collamer, 
Doolittle, Douglas, Fessenden, Foot, Hamlin, Harlan, King, Seward, Trumbull, and 
Wilson. 

Those who voted in the negative are Messrs. Bayard, Benjamin, Bigler, Broderick, 
Brown, Chesnut, Clay, Clingman, Davis, Fitzpatrick, Green, Gwin, Houston, Hunter, 
Iverson, Johnson of Arkansas, Johnson of Tennessee, Jones, Kennedy, Lane, Mallory, 
Mason, Polk, Pugh, Reid, Rice, Shields, Slidell, Smith, Stuart, Toombs, and Ward. 

So the motion to recommit with instructions was disagreed to. 

The question recurring on agreeing to the amendment proposed by Mr. Pugh to the 
amendment proposed by Mr. Seward, it was determined in the affirmative—yeas 30, 
nays 16. 

On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Bayard, Benjamin, Bigler, Brown, 
Chesnut, Clay, Clingman, Davis, Fitzpatrick, Green, Gwin, Houston, Hunter, Iverson, 
Johnson of Arkansas, Jones, Kennedy, Lane, Mallory, Mason, Polk, Pugh, Reid, Rice, 
Shields, Slidell, Smith, Stuart, Toombs, and Ward. 

Those who voted in the negative are Messrs. Broderick, Cameron, Chandler, Clark, 
Collamer, Doolittle, Douglas, Fessenden, Foot, Hamlin, Harlan, Johnson of Tennessee, 
King, Seward, Trumbull, and Wilson. 

On the question to agree to the amendment of Mr. Seward, as amended, it was de¬ 
termined in the affirmative—yeas 29, nays 16. 

On motion by Mr. King, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Benjamin, Bigler, Brown, Chesnut, 
Clay, Clingman, Davis, Fitzpatrick, Green, Gwin, Houston, Hunter, Iverson, Johnson 
of Arkansas, Jones, Kennedy, Lane, Mallory, Mason, Polk, Pugh, Reid, Rice, Shields, 
Slidell, Smith, Stuart, Toombs, and Ward. 

Those who voted in the negative are Messrs. Broderick, Cameron, Chandler, Clark, 
Collamer, Doolittle, Douglas, Fessenden, Foot, Hamlin, Harlan, Johnson of Tennessee, 
King, Seward, Trumbull, and Wilson. 

On the question to agree to the resolution from the Committee on the Judiciary, 
amended, as follows: 

“ Resolved , That the committee be discharged from the further consideration of the 
memorial of the State of Indiana, and that the resolution of the Senate adopted June 
12,1858, affirming the right of Graham N. Fitch and Jesse D. Bright as Senators elected 
from the State of Indiana, the former until the 4th day of March, 1861, and the latter 
until the 4th day of March, 1863, was a final decision of all the premises then in con¬ 
troversy, and conclusive, as well upon the legislature of Indiana, and all persons claim¬ 
ing under its authority, as upon the Senators named in the resolution,” 

It was determined in the affirmative—yeas 30, nays 15. 

On motion by Mr. Johnson, of Tennessee, the yeas and nays being desired by one-fifth 
of the Senators present, 

Those who voted in the affirmative are Messrs. Benjamin, Bigler, Brown, Chesnut, 
Clay, Clingman, Davis, Fitzpatrick, Green, Gwin, Houston, Hunter, Iverson, Johnson 
of Arkansas, Johnson of Tennessee, Jones, Kennedy, Lane. Mallory, Mason, Polk, Pugh, 
Reid, Rice, Shields, Slidell, Smith, Stuart, Toombs, and Ward. 


LANE AND M C CARTY YS. FITCH AND BRIGHT. 


263 


Those who voted in the negative are Messrs. Broderick, Cameron, Chandler, Clark, 
Collamer, Doolittle, Douglas, Fessenden, Foot, Hamlin, Harlan, King, Seward, Trum¬ 
bull, and Wilson. 

So the reported resolution, as amended, was agreed to. 

[The debates are found on pages 1014-1019 of the Congressional Globe, part 1, 2d 
sess. 35th Cong., and on pages 128-148 of the Appendix to the Congressional Globe, 
part 2, 2d sess. 35th Cong.] 




264 


SENATE ELECTION CASES. 


[Special session of Senate, March, 1857.] 

SIMON CAMERON, 

Senator from Pennsylvania from March 17,1845, till Match 3,1849; from 
March 4, 1857, till he resigned in March , 1861 $ and from March 4,1867, 
till he resigned in March , 1877. 

Soon after Mr. Cameron had taken his seat in the Senate for the term beginning March 4, 1857, a 
protest against the legality of his election by certain members of the legislature of Pennsylvania 
was presented to the Senate. The subject was referred to the Committee on the Judiciary. The 
committee reported that the grounds of the protest were (1) that there was not a concurrent major¬ 
ity of each house in favor of Mr. Cameron; (2) that the State senate did not comply in certain par¬ 
ticulars with an act of the State regulating the election of Senators; and (3) that the election was 
procured “ by corrupt and unlawful means.” The committee reported in regard to the first ground 
of the protest that it was “ untenable under the statute of Pennsylvania and the uniform practical 
construction of the Federal Constitution for the last half centuryin regard to the second ground 
of the protest they reported that the provisions of law alleged to have been disregarded werepurely 
directory, and that a failure to comply with them would not vitiate an election; and in regard to 
the third ground of the protest, reported that the “allegation was entirely too vague and indefinite ” 
to justify the recommendation of an investigation by the United States Senate. The report ended 
with the resolution that the committee be discharged from the further consideration of the subject. 
The minority of the committee concurred with the majority in reference to the two first points, but 
submitted a report dissenting from the conclusion of the majority in regard to the third point, on 
the ground that when a protest of this nature comes from a responsible source the Senate should 
investigate the charges and allow the persons protesting an opportunity of submitting the proof 
upon which the charges rest. After a brief debate the resolution reported by the committee was 
adopted. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Senate Journal, 3d sess. 34th Cong., 1856-’57, and the report of the committee in 
the case from Senate Reports, 3d sess. 34th Cong., Report No. 1 of the special session. 

The debates in the case are found within pages 387-391 of the Appendix to the Congressional 
Globe, 3d sess. 34th Cong., 1856-’57. 

Special references to the debate of each day are inserted below. 


Friday, January 16, 1857. 

The President pro tempore presented the credentials of the Hon. Simon Cameron, elected 
a Senator by the legislature of Pennsylvania for the term of six years commencing on 
the 4th day of March next; which were read. 

Wednesday, March 4, 1857. 

The oath prescribed by law was administered to Simon Cameron, and he took his seat 
in the Senate. 

Friday, March 6, 1857. 

Mr. Bigler presented a protest of fifty-four members of the house of representatives, 
and a protest of fifteen members of the senate of the State of Pennsylvania against the 
proceedings under which the Hon. Simon Cameron claims to represent the State in the 
Senate of the United States from the 4th of March, 1857. 

Ordered, That they lie on the table. 

Monday, March 9, 1857. 

On motion by Mr. Cameron, 

Ordered , That the protest of certain members of the house of representatives of the State 
of Pennsylvania, and the protest of members of the senate of the said State, presented the 
6th of March, be referred to the Committee on the Judiciary. 

Wednesday, March 11,1857. 

Mr. Benjamin, from the Committee on the Judiciary, to whom were referred a protest 
of members of the senate, and a protest of members of the house of representatives of the 
State of Pennsylvania against the election of the Hon. Simon Cameron as a Senator in 
Congress, submitted a report (No. 1), accompanied by the following resolution: 

“ Resolved, That the Committee on the Judiciary be discharged from the further consid¬ 
eration of the subject.” 

Ordered, That the report be printed. 

Mr. Pugh submitted the views of the minority of the Committee on the Judiciary on 
the same subject; which were ordered to be printed with the report of the committee. 

Mr. Foot submitted the following resolution for consideration: 

“Resolved , That Simon Cameron is entitled to a seat upon this floor as a legally chosen 
Senator from the State of Pennsylvania . 1 ’ 

[The debate is found on pages 388, 389 of the Appendix to the Congressional Globe 
referred to in the head-note. ] 


SIMON CAMERON, 


265 


EEPOBT OP COMMITTEE. 

[The committee consisted of Messrs. Butler (chairman), Bayard, Toombs, Pugh, Ben¬ 
jamin, Collamer, and Trumbull.] 

Report of the Committee on the Judiciary , on the protests of certain members of the legislature of 
Pennsylvania against the election of the Hon. Simon Cameron as a Senator in Congress. 

Maech 11,1857.—Submitted, and ordered to be printed with the views of the minority 

of the committee. 

The Committee on the Judiciary, to whom was referred the protest of certain members 
of the senate and house of representatives of the State of Pennsylvania, alleging cer¬ 
tain irregularities and illegalities in the election of the Hon. Simon Cameron, a Senator 
from said State, report: 

That the grounds of protest are stated as follows, viz: 

First. That there was not a concurrent majority of each house in favor of the candidate 
declared to be elected. 

Second. That the senate did not comply with the requirements of the act of 2d July, 
1839, by appointing a teller and making a nomination of persons to fill said office, and 
giving notice of said appointment and nomination at least one day previous to the meet¬ 
ing of said convention. 

In addition to the two grounds aforesaid, the protest presented by the members of the 
house of representatives charges, 

Third. ‘ ‘ That the election of the said Simon Cameron was procured, as they are in¬ 
formed and believe, by corrupt and unlawful means, influencing the action and votes of 
certain members of the house of representatives of this State; and they request that an 
investigation be ordered by your honorable body, not only into the regularity of the said 
election, but into the charges herein presented, in order that an opportunity may be 
afforded of submitting the proof upon which they rest.” 

In relation to the first two grounds of protest, the committee are unanimously of opin¬ 
ion that no facts are presented tending in the slightest degree to impair the validity of 
the election of Mr. Cameron. 

It is true that the law of Pennsylvania on the subject of the election of Senators re¬ 
quires that each branch of the legislature shall appoint one teller and nominate at least 
one person to fill such office, and communicate to the other house the names of the per¬ 
sons so appointed and nominated at least one day previous to the joint meeting; but the 
same law also provides that at the hour of twelve, on the second Tuesday in January 
next preceding the expiration of the constitutional term of a Senator, the members of 
both houses shall meet in convention in the chamber of the house of representatives and 
choose a Senator viva voce from the persons so nominated as aforesaid; and also expressly 
provides that the person who shall receive the votes of a majority of the members pres¬ 
ent shall be declared duly elected. 

From the extracts furnished by the protesting parties, taken from the journals of the 
two houses, it appears that the two houses did meet in joint convention on the day and 
at the place appointed by law, and in accordance with resolutions passed in each house 
separately, and that one hundred and thirty-three members, composing the entire legis¬ 
lature of Pennsylvania, were present and voted, and that Simon Cameron received 67 
votes, and 66 votes were given for all the other candidates; and that Simon Cameron, 
having thus obtained a majority of the votes of all the members present, was declared 
duly elected Senator. 

It appears from the journal of the senate that the appointment of a teller and the 
nomination of candidates, and the communication to the other house of the appointment 
and nomination so made, all took place on the day of the election, instead of one day 
previous to the election, as required by the law of the State; but your committee regard 
this provision of law as purely directory in its nature, and are of opinion that a failure 
to comply with this formality would under no circumstances suffice to vitiate an elec¬ 
tion otherwise legal and valid; but where, as in the present case, both houses proceeded 
without objection from any source to perform their constitutional duty of electing a Sen¬ 
ator, the necessity of complying with any particular forms required by law may fairly 
be considered as waived by common consent, and it is entirely too late, after the result 
of the voting has been ascertained, to raise a question as to the mode of proceeding. 

The objection that there was not a concurrent majority of each house in favor of the 
candidate declared to be elected is equally untenable under the statute of Pennsylvania, 
and the uniform practical construction of the Federal Constitution for the last half 

century. . 

The third ground of protest is signed by members of the house of representatives of 
Pennsylvania, but not by the members of the senate of that State. 

It is a general allegation “that the election of the said Simon Cameron was procured, 
as they are informed and believe, by corrupt and unlawful means, influencing the action 


266 


SENATE ELECTION CASES. 


and votes of certain members of the house of representatives,” and the Senate of the 
United States is asked to investigate the charge. 

The committee cannot recommend that this prayer he granted. The allegation is en¬ 
tirely too vague and indefinite to justify such a recommendation. Not a single fact or 
circumstance is detailed as a basis for the general charge. Neither the nature of the 
means alleged to be corrupt and unlawful, nor the time, place, or manner of using them, 
is set forth, nor is it even alleged that the sitting member participated in the use of such 
corrupt means or, indeed, had any knowledge of their existence. Under no state of 
facts could your committee deem it consistent with propriety, or with the dignity of 
this body, to send out a roving commission in search of proofs of fraud in order to de¬ 
prive oneof its members of a seat to which he is, prirna facie, entitled; still less can they 
recommend such a course when the parties alleging the fraud and corruption are them 
selves armed with ample powers for investigation. If it be, indeed, true that members 
of the house of representatives of Pennsylvania have been influenced by corrupt consid¬ 
erations or unlawful appliances, the means of investigation and redress are in the power 
of the very parties who seek the aid of the Senate of the United States. Let their com¬ 
plaint be made to the house of which they are members, and which is the tribunal pe¬ 
culiarly appropriate for conducting the desired investigation. That their complaint will 
meet the respectful consideration of that house your committee are not permitted to 
doubt. If upon such investigation the facts charged are proven, and if they in any 
manner involve the character of the recently elected member of this body from the State 
of Pennsylvania, the Constitution of the United States has not left the Senate without 
ample means for protecting itself against the presence of unworthy members in its midst. 

In the mean time your committee see no reason for initiating any proceeding on the 
subject, and submit the following resolution: 

Resolved , That the Committee on the Judiciary be discharged from the further con¬ 
sideration of the subject. 

VIEWS OF THE MINORITY. 

The undersigned, a member of the Committee on the Judiciary, dissents from the 
conclusion at which his colleagues have arrived in reference to the contested election of 
a Senator for the State of Pennsylvania. 

In the protest submitted by forty-four members of the house of representatives in that 
State will be found an allegation in these words: 

“ The undersigned further charge that the election of the said Simon Cameron was 
procured, as they are informed and believe, by corrupt and unlawful means influencing 
the action and votes of certain members of the house of representatives in this State; and 
they request that an investigation be ordered by your honorable body, not only into the 
regularity of the said election, but into the charges herein presented, in order that an op¬ 
portunity may be afforded of submitting the proof upon which they rest. ’ ’ 

It is objected by the majority of the committee that this paragraph does not specific¬ 
ally relate the facts on which a charge of corruption can be predicated. 

If the case were only between contestor and contestee, as individuals, there might be 
some force in the objection; but it is one in which a number of the qualified electors, 
themselves public agents, inform the Senate that corrupt as well as unlawful means have 
been used in the election. 

The accusation comes from a responsible source, and is too serious, too distinctly and 
directly made, to be treated with indifference. It concerns the honor of the Senate and 
the security of the Government that no rule of merely technical character, applicable as 
between individuals, should prevent a thorough investigation of the case. This would 
seem to be a duty the more imperative in view of the statute, enacted at the late session, 
in which very stringent and unusual provisions have been made for the detection of 
corrupt practices by members of Congress. • 

The undersigned concurs with the majority in reference to the other points of contest 

G. E. PUGH. 

Friday, March 13, 1857. 

The Senate proceeded to consider the resolution reported by the Committee on the 
Judiciary, to whom were referred the protests of certain senators and members of the 
house of representatives of the State of Pennsylvania, against the election of the Hon. 
Simon Cameron as a Senator in Congress from that State; and, in concurrence therewith, 

Resolved, That the Committee on the Judiciary be discharged from the further con¬ 
sideration of the subject. 

Mr. Foot, on his motion, obtained leave to withdraw the lesolution, submitted by him 
the 11th instant, respecting the right of the Hon. Simon Cameron to a seat in the Sen¬ 
ate. 

[The debate that took place on the adoption of the resolution is found on page 391 of 
the Appendix to the Congressional Globe referred to in the head-note.] 


JAMES SHIELDS. 


267 


[Thirty-fifth CongTess—First session.] 

JAMES SHIELDS, 

Senator from Minnesota from May 12, 1858, till March 3,1859. 


February 20, 1857, Congress passed an act entitled “An act to authorize the people of Minnesota 
to form a constitution and State government preparatory to their admission into the Union on an 
equal! footing with the original States.” The constitution, when formed, having been referred to 
the Committee on Territories, that committee reported a bill January 26,1858, entitled “A bill for the 
admission of Minnesota into the Union,” which was approved May 11,1858. February 25,1858, a paper 
purporting to be the credentials of Mr. Shields as a Senator froin„the State of Minnesota, and a letter 
from him setting forth the grounds upon which he claimed a right to a seat in the Senate, were pre¬ 
sented. He claimed that Minnesota was at that time a State by virtue of the act of February 26, 
1857; that that act enabled her on certain terms and conditions to be at once a State ; that she had 
performed those conditions. March 4,1858, the committee unanimously reported a resolution that 
Minnesota was not a State of the Union under the Constitution and laws, the grounds on which the 
resolution was based not being given. No action was taken on the resolution. Mr. Shields was 
admitted to the seat after the bill admitting the State was approved. It appears from the debates 
which took place on the question whether the subject was a privileged question, that some Sen¬ 
ators thought Mr. Shields entitled to the seat for the reasons given in his letter; that some thought 
that no act of admission would have been necessary if the Territory had complied with the condi¬ 
tions of the enabling act, but that it had not done so ; that others thought that an act of admission 
was essential even if the conditions of the enabling act had been complied with. Extracts from 
speeches will show more at length the grounds upon which different Senators proceeded. 

May 12,1858, the day on which the Minnesota Senators were sworn, a debate arose on the ques¬ 
tion whether the Senators were duly elected in December, 1857, or whether an election must take 
place after the passage of the act of admission. This debate is found on pages 2076,2077 of the Con¬ 
gressional Globe, part 3, 1st sess. 35th Cong. There was no division of the Senate on the question. 

The history of the case here given consists of a transcript of the proceedings of the Senate re¬ 
lating to it from the Senate Journal, 1st sess. 35th Cong.; the report of the committee, from Senate 
Reports, 1st sess. 35th Cong., vol. 1, No. 104; the letter of Mr. Shields, from the Congressional Globe, 
1st sess. 35th Cong., part 1, pages 861,862, and extracts from speeches from the same volume of the 
Globe. 

The debates in the case are found on pages 861-867 of the Congressional Globe, part 1, 1st sess. 
35th Cong. 


LETTER OF MR. SHIELDS. 

Washington, February 24, 1858. 

Sir: I beg leave to offer a few reasons to show that Minnesota is one of the sovereign 
States of this Union. My first proposition is, that there are only two forms of political 
organization under which a community of American citizens can legitimately exist within 
the j urisdictiou and under the Constitution of the United States. The one is the organ¬ 
ization of a Territory of the Union; the other, that of a State of the Union. These are 
the only determinate shapes into which political communities can he molded under our 
Constitution. Each has its appropriate place in our federal system. A community of 
American citizens living under a territorial organization is in direct and legitimate con¬ 
nection with the Federal Government. That same community, transformed into a State, 
is also in direct legitimate connection with the Federal Government. In the transition 
from a Territory to a State, there is no point of time at which this connection can by any 
possibility be broken. The territorial government continues in full force until it is 
superseded by a State government; and whenever the people constitute themselves law¬ 
fully into a State, it is, Io inslanti, a State of the Union. There is no such political 
anomaly as a State out of the Union, or not yet in the Union. These erroneous terms 
have been applied so vaguely to communities whose condition is not easily determined 
that the public begin to think there must be some intermediate provisional, probation¬ 
ary state, in which communities are sometimes kept on their passage from the condition 
of Territories to that of sovereign States of the Union. California was denominated, 
not many years ago, a State out of the Union. Minnesota is, I suppose, at present con¬ 
sidered by some a State not yet in the Union, or, perhaps, a provisional State. Certainly 
the representatives of Minnesota are at present in a provisional dilemma, not knowing 
whether they represent a State in the Union or out of the Union. 

I now beg leave to refer you to the law of 1857 authorizing the people of Minnesota 
to foim a State government. The first section contains the following language: “The 
inhabitants of Minnesota are hereby authorized to form for themselves a constitution 
and State government by the name of Minnesota, and to come into the Union on an equal 
footing with the original States, according to the Federal Constitution.” Here the 
authority is absolute and unconditional, first, to form a constitution and State govern- 


268 


SENATE ELECTION CASES. 


ment; secondly, to come into the Union on an equal footing with the original States; 
authority to make a State and authority to come into the Union. No language could 
be more positive; no authority could be more plenary; no act could be more determinate. 
The people have performed their engagements in good faith, and they have a right to 
expect a like compliance on the part of Congress. These engagements, too, affect the 
most sacred of all political rights—the constitutional rights of a sovereign State. The 
third section of the Minnesota enabling act strengthens and corroborates this position. 
It provides that a convention of delegates shall assemble at the capital of said Territory 
on the second Monday of July next (1857), and first determine by a vote whether it is 
the wish of the people of the proposed State to be admitted into the Union “at that 
time.” Mark the language: not thereafter; not upon the happening of any future con¬ 
tingency; but “at that time,” to wit, on the second Monday in July, 1857; “and if 
so, ’ f that is, if they shall so determine, 11 shall proceed to form a constitution, and to 
take all necessary steps for the establishment of a State government in conformity with 
the Federal Constitution, subject to the approval and ratification of the people of the 
proposed State.” 

Here two things are to be specially observed: first, the determination to become a 
State at that time; not the determination at that time to become a State, but a State at 
that time. Second, the submission to the approval and ratification of the people. When 
was Minnesota to become a State? At that time. How was her constitution to be rati¬ 
fied ? By submission to the people. She has complied with every requirement. She 
entered the Union at the time prescribed; her constitution is ratified in the manner pre¬ 
scribed ; and yet she is now as completely postponed and ignored as if she had disre¬ 
garded all her obligations. Permit me to cite two precedents, which, I hope, will prove 
conclusive in this case. In 1802 an enabling act was passed for Ohio somewhat similar 
to, but not so decisive as, the Minnesota act. The authority given was to form a con¬ 
stitution and State government; and then follows this language: “The State, when 
formed, shall be admitted into the Union on the same footing with the original States.” 
This was then considered an authorized admission of the State, and the only act of ad¬ 
mission that ever took place in the case of Ohio; and that State is now in the Union 
under and by virtue of the authority of that enabling act. 

The enabling act in the case of Indiana contains the following language: “The State, 
when formed, shall be admitted into the Union.” Mark the difference in the two acts. 
In the case of Minnesota authority is given to come in at the present time. In the case 
of Indiana a promise is given for her admission at some future time; under the law 
Indiana adopted a constitution and elected Representatives, as Minnesota has done. 

On the 2d December, 1816, Mr. Hendricks, Representative from the new State, pre¬ 
sented his credentials in the House of Representatives, was sworn in, was appointed on 
a committee, and was allowed to vote and act as a member of that body; and yet it was 
not until ten days afterward (on the 12th of the same month) that a joint resolution 
was passed by both branches of Congress formally admitting Indiana. This kind of 
resolution was then considered form—nothing but mere form—something which Congress 
has the power to observe or omit at pleasure, but something with which the State has no 
concern, and which cannot affect its right. This was then the opinion of John C. Cal¬ 
houn, at that time a member of the other House; and this, we may fairly presume, would 
be his opinion if he were a member of the Senate now. When the precedent was estab¬ 
lished Daniel Webster was also a member of the House, and gave it the weight of his 
authority. But Minnesota stands upon far stronger grounds than Ohio or Indiana—the 
ground of Congressional authority. If this authority is good Minnesota cannot fail. This 
is a great question—a question of constitutional right, of national faith. Congressional 
faith, I sincerely hope, will be held sacred and inviolate in the case of Minnesota by the 
prompt admission of her representatives. My sense of duty to my constituents compels 
me, through you, to make this appeal to the Senate. 

I have the honor to be, your obedient servant, 

JAMES SHIELDS, 

Senator from Minnesota. 

Hon. John J. Chittenden. 


[Extract from remarks of Mr. Pugh, of Ohio, maintaining that the application of Mr. Shields is 
a question of privilege, but that Minnesota was not a State, not having complied with the con¬ 
ditions of the enabling act, page 862, part 1, of the Globe referred to in the head-note.] 

“I say that an enabling act was justified when it was first proposed, on the ground that 
it was an act of admission, a conditional act of admission, and when the State to be 
formed complied with the conditions, she was in the Union without anything else. That 
is the beginning of all the enabling acts; and that is the only excuse Congress ever had 
for passing one. That is one reason why, in my judgment, it is not necessary for Kan- 


JAMES SHIELDS. 269 

sas, or any other new State, when she presents herself, to have any enabling act. Noth¬ 
ing is requisite but an act of admission. 

‘ ‘ But cases have arisen where both Houses of Congress have been obliged to consider 
whether the proposed State has complied with the conditions in the previous act of ad¬ 
mission; and that is the question in relation to Minnesota. I have read the report of 
the Committee on Territories with very great care, and examined the documents sub¬ 
mitted with that report; and, although I acknowledge there is no error which we may 
not heal by a joint resolution of admission, I do not think Minnesota has complied 
with the terms of the enabling act. I do not think she ever held a convention of dele¬ 
gates as required by that law. I do not consider the breach healed by the subsequent 
vote that was taken in October. If we object to the form of the vote that was taken in 
Kansas on the 21st of December, the form of the vote that was taken in Minnesota is 
just as objectionable; but I agree that these are not fatal defects. They are defects 
which we can heal by a joint resolution, or a subsequent act of Congress. Therefore, 
whilst I do believe that this is a question of privilege, that when this gentleman pre¬ 
sents himself here, and claims to be a Senator from a State which we have so far recog¬ 
nized as to authorize her to become one on the performance of certain conditions, his 
claim is a question of privilege. I do not agree that Minnesota has so far complied with 
the terms of admission as to entitle her Senators and Representatives to be sworn 
without some waiver by Congress in the shape of a joint resolution. Therefore, whilst 
I shall vote to consider it a question of privilege, I cannot, on the facts stated by the 
Committee on Territories, vote that Minnesota is entitled to have her Representatives 
and Senators here. ’ ’ 

[Extract from remarks of Mr. Crittenden, of Kentucky, in support of the right of Mr. Shields to a 
seat, pages 863,864, part 1, of the Congressional Globe referred to in the head-note.] 

‘ ‘ The point that is made on the part of the individual applying to take his seat as a 
Senator is, that Minnesota is a State in virtue of the enabling act; that that act enabled 
her on certain terms and conditions to be at once a State, and to come into the Union as 
such under the Federal Constitution. She has performed those conditions. She has 
become a State, according to his vie wand his argument, and is entitled to be represented 
on this floor as a State. As Mr. Hendricks was permitted in the other House to take 
his seat, and to vote, and the votes of electors for President and Vice-President were 
allowed to be counted, although they were elected before any formal admission by Con¬ 
gress, I see no reason why the gentleman in question has not a just, constitutional, and 
lawful privilege to take his seat here; and, if it be denied to him, to appeal to you and to 
this body as upon a question of privilege to maintain and vindicate his right. 

“ The allowing him to take his seat here is one thing and a formal admission of the 
State another. There may be, and are, certain purposes for which it is very convenient 
to pass an act of formal admission into the Union. That may be done; but it does not 
follow because that may be done that the Senator shall not be permitted, before this 
formal act be done, to take his seat and represent his State. You know that the consti¬ 
tution has been made; you know, and the Senate know, that that constitution is of the 
character required by the enabling law, and by the Constitution of the United States we 
know the capacity of the principal to appoint such representatives; we know, however, 
that in transactions, of such consequence as the admission of States it may be well 
enough for us to adhere to the principle of giving a subsequent consent, and admitting 
the State by subsequent act. We can retain that; but where is the reason why this 
State shall be unrepresented in either House, until you can have passed that act? The 
forms require delay. Here is a State entitled to admission, and if it is entitled to ad¬ 
mission it is entitled to representatives on this floor. It is the privilege of the State to 
require it; it is the privilege of the person she elects to represent her to require it, and 
that is all that is done. 

“ The first question required by the enabling act, in respect to Minnesota in forming 
her constitution, to be decided, is whether the people of the Territory described desire 
to be formed and admitted as a State into the Union at once. That question was put, 
and that question was decided in the affirmative. The people of Minnesota said, ‘ We 
desire to be admitted at once; it is not now our wish hereafter to be admitted, but it is 
our desire, our determination, to be admitted now, at once, into the Union. ’ That is 
the question which Congress directed to be put. That is the question which was de¬ 
cided, and every other condition required by Congress was fully complied with, as the 
constitution now before you shows. 

“ What evasion then is it, Mr. President, to decline to receive her representatives on 
this floor on an equal footing with those of the other States of this Union. I confess it 
seems to me they have as perfect a right as I have to a seat here, and if I might 
come from my State, with all the legally required authentications of my right, and pre¬ 
sent them to you, and from negligence, from apathy, from opposition, or from any other 


270 


SENATE ELECTION CASES. 


cause, you were to refuse to administer to me the oath, the argument of the gentleman 
from Virginia would apply — 1 Oh, this is no breach of privilege; you are not a Senator; 
your State has certified you to be a Senator; the legislature has declared you to be a 
Senator; but the Federal authorities require you to take an oath, and that oath is neces¬ 
sary to make you a Senator.’ No, sir; I am as much a Senator before I take the oath 
as I am afterwards. It contributes nothing to make me a Senator. If I fail to take 
that oath and presume to act without it, I am guilty of an offense; but I am a Senator 
before. Can you treat any gentleman elected to this body in this manner—refuse to 
administer to him the oath, and then tell him, ‘ For that cause I have annulled you as 
a Senator, and you can make no question of privilege in regard to it ; one must be a 
Senator before a question of privilege can attach to him; you are not one, because 1 have 
not sworn you; and I will not swear you, because I do not intend that you shall act as 
a Senator? ’ If that is not a breach of privilege it is utterly incomprehensible to me 
what can be. It is a breach of privilege—a flagrant one; and it is not less a breach of 
privilege because there is the power in those who commit it to avoid responsibility 
for it.” 

[Extract from remarks of Mr. Toombs, of Georgia, citing the case of Ohio, page 866, part 1, of the 
Congressional Globe referred to in the head-note.] 

“In 1802, when Ohio, under an enabling act, had made a constitution and went on 
under the regular forms to constitute a State government, a committee of this body was 
appointed. You will not find it in the printed Journals, but it is now in manuscript in 
the Secretary’s office. The committee were to inquire whether or not Ohio was a State. 
They said Congress had passed an enabling act, that Ohio had complied with the condi¬ 
tions, and that nothing else was necessary but to extend the laws of the United States 
over her. They did that, and swore in the members. They decided that she had com¬ 
plied with all the conditions, and was a State.” 

[Extract from remarks of Mr. Brown, of Mississippi, maintaining that Minnesota could not become 
a State until the passage of an act of admission, page 866, part 1, of the Congressional Globe re¬ 
ferred to in the head-note.] 

“ Now, is Minnesota a State of the Union ? I shall vote for the resolution proposed 
by the Senator from Georgia, but I do it in deference to the judgment of other gentle¬ 
men, and to get clear of the question now, and not because there is one single shade of a 
shadow of doubt on my mind on the subject. Minnesota is not a State of the Union. 
If she is, she must have been made so by the enabling act. There is no pretense that 
she has become a State in any other way. Who knows ? How has it been Congression- 
ally ascertained that she has complied with the enabling act? Where is the judgment 
on that subject? How has it been ascertained that her constitution does not infringe or 
violate the Constitution of the United States? When was it ascertained and put upon 
the record that her constitution is republican in its form ? All these things may be 
true, but they have not been ascertained. There is nothing on the record to show that 
they are true. Where is the evidence that in fixing her boundaries she has not run 
into the adjoining States and cut off a part of Iowa and Wisconsin ? Has it been ascer¬ 
tained that that is not true? Suppose, without inquiry, just by virtue of the enabling 
act, she is now in the Union, and it turns out that her constitution is not republican in 
form, that her boundaries violate the boundaries of the adjoining States, that she has in 
other respects violated the Constitution of the United States: then what? Is she out of 
the Union ? Do you break up the Union by turning her out to-morrow as soon as you 
ascertain that these things are true? If she is in the Union, she is in from the day her 
constitution was passed by the members of the convention which made it, for you have 
done nothing to give sanction to it since that. If she is in by virtue of the enabling act 
she is in from the very hour when the convention made the constitution; and then I 
suppose the very instant you find out that her constitution is in violation of the Consti¬ 
tution of the United States she goes out. That is an act of dissolution. 

‘ ‘ I speak of these matters simply to show what strikes me to be the absurdity of de¬ 
claring a State in the Union in this sort of informal way. If she cannot be in the Union 
with a constitution anti-republican; if she cannot be in with boundaries which infringe 
the boundaries of other States; if she cannot be in because her constitution provides for 
orders of nobility, stars, and garters, and all that; if she cannot be in for any one of the 
hundred reasons which I could name, then there must be a necessity for ascertaining 
that these objections do not exist before she is in at all. Who has ascertained it? It is 
the duty of Congress under the clause of the Constitution which authorizes it to admit 
new States to ascertain all these points. When they have done it and put that ascer¬ 
tainment in the form of a judgment on the records, the State is in, and not till then. 
About this I have no doubt, and I am astonished to find that anybody else has; but 
still in deference to the opinion of other gentlemen, and to get clear of the question, I 
will vote for the resolution of the Senator from Georgia.” 


JAMES SHIELDS. 


271 


Thursday, February. 25, 1858. 

Mr. Crittenden presented, as a privileged subject, a letter from the Hon. James Shields, 
setting forth the grounds upon which he claims a right to a seat as a Senator from the 
State of Minnesota; which was read. 

Mr. Crittenden also presented a paper purporting to he the credentials of the Hon. James 
Shields as a Senator from the State of Minnesota; which was read; and moved that the oath 
of office be administered to Mr. Shields, and that he be admitted to a seat in the Senate. 

Mr. Johnson, of Arkansas, raised the question of order, whether the subject presented 
by Mr. Crittenden was a privileged subject. 

The Vice-President submitted the question for the decision of the Senate. 

On motion by Mr. Johnson, of Arkansas, that the subject lie on the table, it was de¬ 
termined in the negative—yeas 22, nays 26. 

On motion by Mr. Iverson, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Allen, Biggs, Bright, Brown, Clay, 
Evans, Green, Hammond,^Hunter, Iverson, Johnson of Arkansas, Johnson of Tennessee, 
Jones, Mallory, Mason, Pearce, Polk, Sebastian, Slidell, Thomson of New Jersey, 
Toombs, and Wright. 

Those who voted in the negative are Messrs. Bell, Benjamin, Broderick, Chandler, Clark, 
Collamer, Crittenden, Dixon, Doolittle, Douglas, Durkee, Fessenden, Fitch, Foot, Foster, 
Gwin, Hamlin, Harlan, Houston, King, Pugh, Seward, Simmons, Sumner, Trumbull, 
and Wilson. 

Whereupon 

Mr. Toombs submitted the following resolution: 

“ Resolved , That the question of the admission of James Shields to a seat in this body, 
as a Senator from the State of Minnesota, be referred to the Judiciary Committee, with 
instructions to inquire whether or not Minnesota is a State of the Union under the 
Constitution and laws. ’ ’ 

The Senate proceeded to consider the resolution; and the resolution was agreed to. 

Thursday, March 4, 1858. 

Mr. Bayard, from the Committee on the Judieiary, who were instructed by a resolu¬ 
tion of the Senate to inquire whether or not Minnesota is a State of the Union under 
the Constitution and laws, submitted a report (No. 104), accompanied by the following 
resolution: 

“ Resolved , That Minnesota is not a State of the Union under the Constitution and 
laws.” 

On motion by Mr. Bayard, 

Ordered , That the report be printed. 

REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Bayard (chairman), Toombs, Pugh, Benjamin, 
Green, Collamer, and Trumbull.] 

In the Senate of the United States. 

March 4, 1858.—Ordered to be printed. 

Mr. Bayard submitted the following report: 

The Senate referred to the Committee on the Judiciary, on the 25th ultimo, the fol¬ 
lowing resolution: 

“ Resolved , That the question of the admission of James Shields to a seat in this body 
as a Senator from the State of Minnesota be referred to the Judiciary Committee, with 
instructions to inquire whether or not Minnesota is a State of the Union under the Con¬ 
stitution and laws.” 

Having considered the question as to which they were by the foregoing resolution 
instructed to inquire, the committee have unanimously adopted the following resolution- 

Resolved , That Minnesota is not a State of the Union under the Constitution and 
laws. 

COMPENSATION OF SENATORS. 


Tuesday, May 25, 1858. 

The Vice-President laid before the Senate a letter of the Secretary of the Senate ask¬ 
ing the direction of the Vice-President as to the time at which the compensation of the 
Senators from Minnesota is to commence. 

Ordered , That it be referred to the Committee on the Judiciary. 


272 


SENATE ELECTION CASES. 


Thursday, June 3, 1858. 

Mr. Bayard, from the Committee on the Judiciary, to whom was referred a letter oi 
the Secretary of the Senate in relation to the compensation of the Senators from Minne¬ 
sota, reported: 

That there is no express provision in the act regulating the compensation of mem 
bers of Congress applicable to the particular case presented; but, in the opinion of the 
committee, a correct construction of the act of August 16, 1856, forbids the allowance 
of compensation until the State of Minnesota was admitted into \he Union, and that 
the compensation to the Senators from that State should commence on the day of ad¬ 
mission, May 11, 1858. 

[There was no debate on the subject of compensation, nor any action on the report.] 


WILLEY AND CARLILE. 


273 


^Thirty-seventh Congress—First session.] 

WAITMAN T. WILLEY and JOHN S. CARLILE, 

of Virginia. 


July 13, 1861, the credentials of Mr. Willey, elected to fill the unexpired term ending March 3,1863, 
of James M. Mason, expelled, and the credentials of Mr. Carlile, elected to fill the unexpired term 
ending March 3,1865, of Robert M. T..Hunter, expelled, were presented. A motion was made that 
the credentials he referred to the Committee on the Judiciary. The credentials stated that the elec¬ 
tion had been held July 9, 1861, and that it had been “to fill the vacancy which has happened by 
the withdrawal and abdication ” of the two preceding Senators. The motion to refer the creden¬ 
tials was not agreed to, and, after debate, the oaths were administered. SomeSenators maintained 
that by admitting Messrs. Willey and Carlile to their seats the Senate would be undertaking to 
recognize a government of the State which w r as not the regular State government, even though that 
State government were in a state of rebellion; and that the Senate was bound to recognize the fact 
ithat the term of office of the governor who was in rebellion had not expired, and that the creden¬ 
tials were not signed by him, but by another as governor. Others favored reference to a committee 
on the ground that at the time of the election, July 9,1861. there was no vacancy in the Senate from 
Virginia, inasmuchas Messrs. Mason and Hunter had not been expelled until July 12, and that the 
Senate had recognized them as Senators until that day by its action in expelling them at that time. 
Extracts from speeches given below will show more at length the grounds upon which Senators 
proceeded. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from the Senate Journal, 1st sess. 37th Cong., with extracts from remarks by Messrs. Bayard, 
Saulsbury, and Trumbull. 

The debates are found on pages 103-109 of the Congressional Globe, 1st sess. 37th Cong. 


Saturday, July 13, 1861. 

Mr. Johnson, of Tennessee, presented the credentials of the Hon. John S. Carlile, 
elected a Senator by the legislature of the State of Virginia “to fill the vacancy which 
has happened by the withdrawal and abdication of Robert M. T. Hunter;” which were 
read. 

Mr. Johnson, of Tennessee, presented the credentials of the Hon. Waitruan T. Willey, 
elected a Senator by the legislature of the State of Virginia “to fill the vacancy which 
has happened by the withdrawal and abdication of James M. Mason;” which were read. 

On motion by Mr. Bayard that the credentials of the Hon. Mr. Carlile and the Hon. 
Mr. Willey be referred to the Committee on the Judiciary, it was determined in the 
negative—yeas 5, nays 35. 

On motion by Mr. Powell, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Bayard, Bright, Polk, Powell, and 
Saulsbury. 

Those who voted in the negative are Messrs. Anthony, Bingham, Browning, Chandler, 
Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Harlan, 
Harris, Howe, Johnson of Tennessee, Kennedy, King, Lane of Indiana, Lane of Kansas, 
Latham, McDougall, Morrill, Pomeroy, Rice, Sherman, Simmons, Sumner, Ten Eyck, 
Trumbull, Wade, Wilkinson, Wilmot, and Wilson. 

So the motion of Mr. Bayard was not agreed to. 

The Vice-President then administered to Mr Carlile and Mr. Willey the oath prescribed 
by law, and they took their seats in the Senate. 

[Extract from remarks of Mr. Bayard, of Delaware, in support of the motion made by him that the 

credentials be referred to a committee; taken from page 103 of the Congressional Globe referred 

to in the head-note.] 

“Before the Senate proceeds to swear in these gentlemen, I beg leave to enter my 
protest. I think these credentials ought to be referred to the Committee on the Judici¬ 
ary. They involve very grave questions. You are undertaking to recognize a govern¬ 
ment of the State of Virginia which is not the regular State government, even though 
that State government may be in what you may call a state of rebellion. You are bound 
to take notice of the fact that Mr. Letcher is governor of Virginia, and that his term of 
office, under the constitution and laws of Virginia, has not yet expired. If you say he 
is in rebellion, that does not authorize a portion of the people of Virginia to form a legis¬ 
lature for the purpose of electing Senators to take seats in this body. You have no 
authority to create a new State out of a part of an existing State. I think the questions 
are very grave. 

“Of course, I know very well that you have the commanding majority in this House; 

S. Doc. 11—-18 



274 


SENATE ELECTION CASES. 


but I think you had better pause and have an investigation before you undertake to 
swear in members under such an authority. I make the motion, before swearing in 
either of these gentlemen, that the credentials be referred to the Committee on the Ju¬ 
diciary. I have no personal feeling of any kind about this matter, but it seems to me 
to be a grave violation of the Constitution of the United States, and I must enter my 
protest against it. I make the motion that the credentials be referred to the Committee 
on the Judiciary.” 


[Extract from remarks of Mr. Saulsbury, of Delaware, in support of the motion offered by Mr. 

Bayard that the credentials be referred to a committee; taken from page 103 of the Congressional 

Globe referred to in the head-note.] 

‘ ‘ It is a matter of indifference to me, sir, what disposition is made of the credeutials 
of the proposed Senators from Virginia; but I wish to call the attention of the Senate to 
one fact, which, in my mind, shows the propriety of the motion now made. These cre¬ 
dentials, as read by the Secretary, state that on the 9th day of July the legislature of 
the State of Virginia, owing to the abdication of Mr. Mason and Mr. Hunter, elected 
these gentlemen to seats upon this floor. No longer ago, however, sir, than yesterday, 
this body treated Mr. Mason and Mr. Hunter as members of the Senate of the United 
States. Yesterday you expelled those gentlemen from seats upon the floor of this Sen¬ 
ate as members of the Senate. Then, at the time of this election by the new govern¬ 
ment of Virginia, there was no vacancy in the Senate of the United States from that 
State, according to the judgment of the American Senate. Yesterday morning, when 
you met, according to the judgment of a majority of the members here Mr. Mason and 
Mr. Hunter were members of this body. You treated them as members of this body; 
.you exercised your power of expulsion upon them. Could you have expelled them, as 
members of the Senate, from seats on this floor, if they were not at the time of the vote, 
in your judgment, actually members of this body? If they were yesterday morning 
members of the Senate of the United States—and you have treated them as such, and 
expelled them—can you now allow these gentlemen to be sworn in as Senators from the 
State of Virginia when the credentials presented here show on their face that they were 
elected not to fill any vacancy; when the facts, as you have decided them, show that 
there was no vacancy in the Senate? For that reason, and for none other, I think the 
credentials should go to the Committee on the Judiciary.” 


[Extract from remarks of Mr. Trumbull, of Illinois, in opposition to the motion made by Mr. Bayard 
that the credentials be referred to a committee; taken from page 104 of the Congressional Globe 
referred to in the head-note.] 

‘ ‘ Mr. President, I think that we should not * ‘ stick in the bark ” as to dates here. I pre¬ 
sume the Senator from Delaware was elected before the vacancy which he filled existed. 
There is scarcely a Senator here that was not elected in advance, before the office became 
vacant. I recollect well that the Senators from Minnesota were admitted to seats upon 
this floor who were elected long before the State of Minnesota was a member of the 
Union. Nearly every new State which has come into the Union has elected her Senators 
before the State was admitted. 

Now, let me put a case. A few years ago this country was engaged in a war with 
Mexico. Suppose that one of the Senators from Delaware, instead of being loyal and 
true to his country, had turned traitor and joined the Mexican army and fought against 
the United States, and the legislature of Delaware had been in session, knowing the fact 
that one of their Senators in this body was fighting against this country in the armies of 
its enemies: must the legislature of Delaware wait till the Congress of the United States 
assembles, and the Senate, by a formal resolution, expels that Senator? Would not the 
legislature of Delaware proceed at once to elect a Senator, and when Congress did con¬ 
vene, and a resolution was offered to expel the traitor to his country, would it be said 
because the State of Delaware acted before Congress had convened and expelled the 
traitor, that therefore the other election should go for nothing, and that her legislature 
must be convened and a new election held ? 

“Sir, the guilt and the turpitude of the men who once sat as Senators here is far 
greater than it would have been in the case I have supposed. They have joined in a 
fratricidal war against their country. They have not joined a foreign enemy, but they 
have uncertaken to stir up a domestic war. I do not think there is any necessity for 
their waiting till the formal resolution of expulsion was passed here. Why sir these 
credentials recite the fact that the former Senators have withdrawn and abdicated* and 
when the expulsion takes place, it may well have reference to the time of their with¬ 
drawal and abdication. 

“Now, sir, we have the credentials here fair on their face. They purport to be the 
credentials of Senators elected by the old Commonwealth of Virginia, sent by a person 
purporting to be the governor of Virginia, and under the great seal of the State This 


WILLEY AND CARLILE. 


275 


appears to be fair. But Senators say, “Oh, well; but we know this is not the legis¬ 
lature of Virginia; there is another legislature, and there is another man who is gov- 
emor.” Well, if you are going outside of these credentials to rely on the knowledge 
which you have of the condition of things in the State of Virginia, then you know that 
the old governor of Virginia and the old legislature are in rebellion against the country. 
They are rebels and traitors in arms against the Government, and are not to be recog¬ 
nized as the government of Virginia, but are to be recognized as enemies and traitors, 
whom the whole power of this Government is now put forth to subdue and bring into 
obedience to the Constitution and the laws; and I would to God that the power was used 
to bring them to obedience. 

“Now, sir, as I said, I am not for “sticking in the bark ” about this matter. Let us 
take the condition of things as it is. Here is the S tate of Virginia in rebellion. If you 
are going outside to inquire after the fact, you will ascertain that a portion of the people 
of that State have risen in arms against the Government; another portion of the people 
of that State are loyal to the Union; and the loyal men of Virginia have elected a legis¬ 
lature and seek representation in the Congress of the United States. They are entitled 
to representation here, and the enemies of the country are not. 

‘ ‘ I think there is no necessity for referring this matter to the committee, unless there 
are some facts to be inquired into. On its face this purports to be an election of Sena¬ 
tors from the Commonwealth of Virginia. There is no objection to the form of it, and 
I do not know that any fact has been suggested by the Senator from Delaware that is to 
be inquired into. What fact does he propose to inquire into? If he goes to his general 
knowledge, is he not satisfied that what was the old legislature of Virginia and its 
former governor are now in rebellion against the Government? And will he recognize 
them as having any authority to send Senators here? I presume not. And if Virginia 
is in the Union, her loyal men and not her traitors have a right to be represented here. 
I trust, sir, that the Senators will be sworn in.” 


276 


SENATE ELECTION CASES, 


[Thirty-seventh Congress—First and second sessions. ] 

FKEDEMO P. STANTON vs. JAMES H. LANE, 

of Kansas. 


The credentials of Mr. Lane, one of two first Senators elected by the legislature of Kansas in 
April, 1861, were presented July 4,1861, and he took his seat. July 12,1861, a paper purporting to be 
the credentials of Mr. Stanton, appointed a Senator by the governor to the seat held by Mr. Lane, 
was presented, and referred to the Committee on the Judiciary. August 2,1861, the comiviitttee re¬ 
ported that Mr. Lane “was, by the Executive, appointed a brigadier-general in the volunteer forces 
of the United States on the 20th of June, 1861; that he accepted said appointment, and was legally 
qualified to perform its duties.” In the opinion of the committee the office of brigadier-general un¬ 
der the United States is incompatible with that of member of either House of Congress. By ac¬ 
cepting the office of brigadier-general, the sitting member, Mr. Lane, virtually resigned his seat in 
the Senate, and it became vacant at that time. On the 8th day of July, 1861, the governor of Kansas 
gave to the contestant, Mr. Stanton, a commission in due form appointing him a Senator of the 
United States from the State of Kansas to fill the aforesaid vacancy, and by virtue of that commis¬ 
sion Mr. Stanton now claims his seat. Your committee recommend the adoption of the following 
resolutions: “1. Resolved, That James H. Lane is not entitled to a seat in this body. 2. Resolved , 
That Frederic P. Stanton is entitled to a seat in this body.” No action was taken on the report or 
resolutions during this session of Congress. December 18,1861, in the next session of Congress, the 
report was recommitted to the committee. The committee reported the same without amendment 
January 6, 1862. January 16, 1862, the first resolution was amended by striking out the word “ not,” 
and it was “ Resolved, That James H. Lane is entitled to a seat in this body; ” and the second reso¬ 
lution was indefinitely postponed. Of those voting in favor of Mr. Lane’s title to the seat some 
proceeded upon the ground that on the 20th of June, 1861, the office of brigadier-general did not 
exist, and consequently that Mr. Lane was not a “person holding any office;” others upon the 
ground that although he held an office after he had been elected Senator, yet, having resigned the 
same before taking his seat in the Senate, he did not come within the provision of section 6 of the 
first article of the Constitution. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journals, 1st and 2d sess. 37th Cong., with the report of the committee from 
Senate Reports, 1st sess. 37th Cong., No. 1. 

The documents relating to the case are Ex. Doc. No. 8 and Mis. Doc. No. 11, from Senate Execu¬ 
tive and Miscellaneous Documents, 1st sess. 37th Cong. 

Special references to the debates of each day are inserted below. 

Thursday, July 4, 1861. 

Mr. Grimes presented the credentials of the Hon. James Henry Lane, elected a Sen¬ 
ator by the legislature of the State of Kansas. 

The credentials were read, and the oath prescribed by law was administered to Mr. 
Lane. 


Friday, July 12, 1861. 

Mr. Foot presented a paper purporting to be the credentials of the Hon. Frederic P. 
Stanton, appointed a Senator by the governor of the State of Kansas; which was re¬ 
ferred to the Committee on the Judiciary. 

Mr. Foot presented a memorial of Frederic P. Stanton, asking admission as a mem¬ 
ber of the Senate of the United States; which was referred to the Committee on the 
Judiciary. 

[A brief statement by Mr. Lane is found on page 82 of the Congressional Globe 1st 
sess. 37th Cong.] 

Tuesday, July 16, 1861. 

Mr. Lane, of Kansas, presented a letter from the chief clerk of the War Department 
inclosing a copy of the appointment of F. P. Stanton as special agent to Kansas and 
New Mexico; which was referred to the Committee on the Judiciary. 

Wednesday, July 31, 1861. 

Mr. Lane, of Indiana, submitted the following resolution; which was considered by 
unanimous consent, and agreed to: 

“ Resolved , That the President of the United States be requested to inform the Sen¬ 
ate whether the Hon. James H. Lane, a member of this body from Kansas, has been 
appointed a brigadier-general in the Army of the United States; and, if so, whether he 
has accepted such appointment.” 


Friday, August 2, 1861. 

Mr. Foster, from the Committee on the Judiciary, to whom were referred the creden¬ 
tials and the memorial of Frederic P. Stanton, claiming to be entitled to a seat in the 
United States Senate, under an appointment of the governor of Kansas, in the place of 


STANTON VS. LANE. 


277 


the Hon. James H. Lane, submitted a report (No. 1), accompanied by the following res¬ 
olutions: 

“ Resolved , That James H. Lane is not entitled to a seat in this body. 

11 Resolved, That Frederic P. Stanton is entitled to a seat in this body. ’ ’ 

On motion by Mr. Foster, 

Ordered , That the report be printed. 

[Remarks in regard to recommitting the report for the purpose of having printed with 
it the President’s reply to the resolution of July 31, given above, are found on pages 
406, 407 of the Congressional Globe, 1st sess. 37th Cong.] 

REPOET OF COMMITTEE. 

[The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eyck, Cowan, 
Harris, Bayard, and Powell.] 


In the Senate of the United States. 


August 2, 1861.—Ordered to be printed. 


Mr. Foster made the following report: 

The Committee on the Judiciary, to whom were referred the credentials and the me¬ 
morial of Frederic P. Stanton, of the State of Kansas, asking admission to a seat in this 
body in place of the Hon. James H. Lane, now holding said seat, having had the same 
under consideration,report: 

That the contestant and sitting member have appeared before them and submitted, 
severally, their statements and made their exhibits. 

The committee find the following facts: That the sitting member, the Hon. James H. 
Lane, was, by the Executive, appointed a brigadier-general in the volunteer forces of the 
United States on the 20th of June, 1861; that he accepted said appointment, and was 
legally qualified to perform its duties. 

In the opinion of the committee the office of brigadier-general under the United States 
is incompatible with that of member of either House of Congress. By accepting the 
office of brigadier-general, the sitting member, Mr. Lane, virtually resigned his seat in 
the Senate, and it became vacant at that time. 

On the 8th day of July, 1861, the governor of Kansas gave to the contestant, Mr 
Stanton, a commission in due form appointing him a Senator of the United States from 
the State of Kansas to fill the aforesaid vacancy, and by virtue of that commission Mr. 
Stanton now claims his seat. 

Your committee recommend the adoption of the following resolutions: 

1. Resolved , That James H. Lane is not entitled to a seat in this body. 

2. Resolved , That Frederic P. Stanton is entitled to a seat in this body. 

The evidence from which your committee find the facts herein set forth is, substan¬ 
tially, the following: 


War Department, July 15,1861. 

Sir: In reply to your inquiry in regard to the appointment of the Hon. James H. 
Lane as brigadier-general, I herewith transmit you documents upon the case: 

A. Copy of letter to Secretary of War from Adjutant-General Thomas. 

B. Form of appointment (printed blank). 

C. Telegram of assistant adjutant-general to commanding officer at Fort Leavenworth. 

D. Letter of acceptance of regiments. 

The Secretary of War directs me to state that he himself, after having signed the com¬ 
mission of Hon. James H. Lane as brigadier-general, handed it personally to him in 
presence of the Adjutant-General at the War Department. 

Respectfully, 

JAMES LESLEY, Jr., 

Chief Clerk, War Department. 

Hon. F. P. Stanton. 


A. 


Adjutant-General’s Office, 

Washington , July 15, 1861. 

Sir: In reply to the inquiry of the Hon. F. P. Stanton of the 13th instant, referred 
by you to this office, I respectfully state that on the 20th ultimo you directed an ap¬ 
pointment as brigadier general of the three years’ volunteers to be made for the Hon. 


278 


SENATE ELECTION CASES. 


James H. Lane, of Kansas. The appointment was made as directed, and handed to 
you for signature, but was not returned to this office for record. 

I inclose herewith a blank letter of appointment, similar to the one used in his case. 
I have the honor to be, sir, very respectfully, your obedient servant, 

L. THOMAS, 
Adjutant- General. 

Hon. Simon Cameron, 

Secretary of War, 


B. 

War Department, 

Washington, June 20, 1861. 

Sir: You are hereby informed that the President of the United States has appointed 
you brigadier-general of the volunteer force raised in conformity with the President’s 
proclamation of May 3, 1861, in the service of the United States, to rank as such from 
17th day of May, 1861. Should the Senate, at their next session, advise and consent 
thereto, you will be commissioned accordingly. 

Immediately on receipt hereof, please to communicate to this Department, through the 
Adjutant-General’s Office, your acceptance or non-acceptance of said appointment; and, 
with your letter of acceptance, return to the Adjutant-General of the Army the oath, 
herewith inclosed, properly filled up, subscribed, and attested, reporting at the same 
time your age, residence, when appointed, and the State in which you were born. 

Should you accept you will at once report by letter for orders to Secretary of War. 

Brig. Gen. James H. Lank, 

United States Volunteers. 

The original of which this purports to be a copy was not produced before the com¬ 
mittee. General Lane stated that it was in the hands of Colonel Weer, at Leaven¬ 
worth. General Lane also stated that there was a variation, in some respects, between 
this copy and the original, but no variation was specified which the committee deemed 
material. 


C. 


[By telegraph.] 


Adjutant-General’s Office, 
Washington , D. 0., July 10, 1861. 

Detail an officer to muster in General Lane’s brigade. The companies will be mus¬ 
tered when presented, even though less than the standard, and will be filled up after¬ 
wards. 


By order: 

GEORGE D. RUGGLES, 
Assistant Adjutant-General. 

Commanding Officer Fort Leavenworth , Kansas , 

Leavenworth Oity, Kans. 


Official copy. 

L. THOMAS, 
Adjutant-General, 

Adjutant-General’s Office, July 16, 1861. 


The above order was given at the request of General Lane. 

L. THOMAS, 
Adjutant- General, 

Adjutant-General’s Office, July 16, 1861. 


D. 


War Department, June 20, 1861. 

Dear Sir: This Department will accept two regiments, for three years or during the 
war, in addition to the three regiments the Department has already accepted from the 
governor of Kansas, to be raised and organized by you in Kansas. Orders will be given 


STANTON VS. LANE. 


279 


to muster the same into service immediately on being ready to be so mustered; and on 
being mustered the requisite arms, &c., will be furnished on the requisition of the 
mustering officer, who is hereby authorized to make the same. 

By order of the President. 


General James H. Lane. 


SIMON CAMERON, 

Secretary of War. 


Official copy. 


J. LESLEY, Jr., 

Chief Clerk. 


I, John D. Clark, justice of the peace in and for Washington County, District of Co¬ 
lumbia, do hereby certify that on or about the 20th day of June last General James H. 
Lane swore to and subscribed the form of the within oath before me, which I duly cer¬ 
tified and delivered to him. 

Given under my hand this 15th July, 1861. 

JOHN D. CLARK, J. P. 

By request of Mr. Stanton. 


I, James H. Lane, appointed a brigadier-general in the Army of the United States, do 
solemnly swear, or affirm, that I will bear true allegiance to the United States of Amer¬ 
ica; and that I will serve them honestly and faithfully against all their enemies or op- 
posers whatsoever, and observe and obey the orders of the President of the United States 
and the orders of the officers appointed over me, according to the rules and articles for 
the government of the armies of the United States. 

Sworn to and subscribed before me, at-, this -day of-, 186-. 

Justice of the Peace. 


The following article appeared in the Daily Times, of Leavenworth, on the 26th oi 
June last: 

Leavenworth, June 25, 1861. 

Mr. Editor : On the 20th instant I was duly appointed a brigadier-general in the 
volunteer force of the United States, and thereupon received the following order: 

War Department, June 20,1861. 

Dear Sir: This Department will accept two regiments for three years or during 
the war, in addition to the three regiments the Department has already accepted from 
the governor of Kansas, to be raised and organized by you in Kansas. Orders will be 
given to muster the same into service immediately on being ready to be so mustered; and 
on being mustered the requisite arms, &c., will be furnished on the requisition of the 
mustering officer, who is hereby authorized to make the same. 


By order of the President. 


General James H. Lane. 


SIMON CAMERON, 

Secretary of War. 


Fellow-citizens of Kansas and adjoining States and Territories: 

The important trust thus confided to me has occurred at a momentous period in our 
history as a nation. An insurrectionary war, commenced by rebels, in defiance of pat¬ 
riotism and duty, has now approached our border. Treason has raised its bloody hand 
almost in our very midst to strike down our glorious flag made blessed by the memories 
of our fathers. The horrors of war are no longer far removed from us, but have been 
brought by traitorous hands to our very hearthstones. Impressed with the necessity of 
prompt and vigorous action in defense of our country, its flag, and our homes, the Pres¬ 
ident has authorized the formation of a brigade of five regiments in Kansas. He has 
been pleased to place in my hands the honor of leading the gallant sons of the youngest 
State of the Union to victory in defence of that Union of which it has so lately become a 
part. Treason and rebellion surround us. Loyal American citizens driven from their 
homes are crying to us for protection. The best Government in the world is assailed 
by wicked hands. Men of Kansas and the surrounding country, in the name of all we 
hold sacred, and by the authority of our constitutional ruler, I invoke you to rally to 
the Stars and Stripes; come forward and join the regiments accepted from our State. 







280 


SENATE ELECTION CASES, 


When organized, the watchword of the brigade will be the downfall of treason wherever 
found and the upholding of Union men in every State and place. 

JAMES H. LANE, 

Brigadier-General. 

General Lane stated to the committee that he wrote the body of the address only, 
and did not affix his name as brigadier-general. 

The requisitions mentioned in the following letter of General Meigs were read before 
the committee by General Lane; he stated that he made them but did not sign them as 
brigadier-general, nor was that title annexed to his name. The requisitions not being 
in possession of the committee are not inserted in this report. 


Quartermaster-General’s Office, 

Washington City , June 26, 1861. 

Sir: I am informed that you are able and willing to supply the regulation uniforms 
for two regiments, including four companies of cavalry, four companies of mounted 
artillery, and twelve companies of infantry, subject to regulation, inspection as to work 
and material, and at the United States prices. 

This clothing is for two regiments to be raised and commanded by General Lane, of 
Kansas, and must be delivered in time to reach Fort Leavenworth before the 20th July, 
at which time the regiment is to take the field. 

I inclose General Lane’s requisitions, three in number, specifying the articles and 
indorsed by me for identification. Also a copy of order No. 23, of November 30, 1859, 
fixing prices. 

Be good enough to signify by telegraph your acceptance or rejection of this order, and 
if rejected return the requisitions by bearer. 

When ready for inspection a United States inspector will be sent to Boston to look at 
them. 

M. C. MEIGS, 
Quartermaster- General. 

Messrs. Haughton, Sawyer & Co., 

Boston , Mass. 

The above is a true copy. 

M. C. MEIGS, 
Quartermaster- General. 

Monday, August 5, 1861. 

Mr. Lane, of Kansas, presented papers relative to his appointment as a brigadier- 
general of volunteers, and his acceptance of the said appointment. 

Ordered, That they lie on the table and be printed. 

******* 

Mr. Foster rose to a question of privilege, and moved that the Senate proceed to the 
consideration of the report of the Committee on the Judiciary on the credentials of Fred¬ 
eric P. Stanton, claiming to be a Senator of the State of Kansas, under an appointment 
of the governor of the State, in the place of the Hon. James H. Lane; and 

On the question to agree to the motion of Mr. Foster, it was determined in the nega¬ 
tive—yeas 17, nays 21. 

On motion by Mr. Foster, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Anthony, Breckinridge, Carlile, Cowan, 
Doolittle, Foot, Fostei, Grimes, Harris, Johnson of Tennessee, King, Pearce, Powell’ 
Simmons, Ten Eyck, Trumbull, and Wade. 

Those who voted in the negative are Messrs. Baker, Bingham, Bright, Browning, 
Chandler, Clark, Dixon, Fessenden, Hale, Harlan, Howe, Lane of Indiana, Latham’ 
Polk, Rice, Saulsbury, Sherman, Sumner, Wilkinson, Wilmot, and Wilson. 

So the motion of Mr. Foster was not agreed to. 

[The debate is found on pages 438-441 of the Congressional Globe, 1st sess. 37th 
Cong.] 

Tuesday, August 6, 1861. 

The following message was received from the President of the United States by Mr. 
Nicolay, his secretary: 

To the Senate of the United Stales: 

In answer to the resolution of your honorable body of date July 31, 1861 requesting 
the President to inform the Senate whether the Hon. James H. Lane, a member of that 


STANTON VS. LANE. 


281 


body from Kansas, has been appointed a brigadier-general in the Army of the United 
States, and it so, whether he has accepted such appointment, I have the honor to trans¬ 
mit herewith certain papers, numbered 1, 2, 3, 4, 5, 6, and 7, which, taken together, 
explain themselves; and which contain all the information I possess upon the questions 
propounded. 

It was my intention, as shown by my letter of June 20, 1861, to appoint Hon. James 
H. Lane, of Kansas, a brigadier-general of United States volunteers, in anticipation of 
the act of Congress, since passed, for raising such volunteers; and I have no further 
knowledge upon the subject except as derived from the papers herewith inclosed. 

ABRAHAM LINCOLN. 

Executive Mansion, August 5,1861. 

******* 

Mr. Trumbull submitted the followiug resolution; which was considered by unani¬ 
mous consent, and agreed to: 

‘ ‘ Resolved , That the President be requested to communicate to the Senate, at its next 
session, copies of any order under which General James H. Lane is authorized to raise 
troops for the war; also of all requisitions made by the said Lane, and of all orders given 
by the W ar Department at his instance for horses, arms, clothing, subsistence, and for 
mustering into service the troops composing the brigade known as General Lane’s brigade 
in Kansas.’’ 

[Brief remarks in regard to the printing of the President’s message are found on pages 
450-452 of the Congressional Globe, 1st sess. 37th Cong.] 

[Second session of the Thirty-seventh Congress.] 

Wednesday, December 11, 1861. 

On motion by Mr. Foster, the Senate proceeded to consider the resolutions reported 
from the Committee on the Judiciary, on the 2d of August last, on the application of 
the Hon. Frederic I’. Stanton for admission to a seat in the Senate as a Senator from 
the State of Kansas, under an appointment from the governor, in the place of the Hon. 
James H. Lane; and 

On motion by Mr. Foster, 

Ordered , That the resolutions lie on the table. 

Tuesday, December)' 17, 1861. 

The Senate resumed the consideration of the resolutions reported from the Committee 
on the Judiciary, declaring Frederic P. Stanton to be entitled to the seat in the Senate 
now occupied by the Hon. James H Lane; and 

On motion by Mr/ Lane, of Kansas, 

Ordered , That the further consideration thereof be postponed to to-morrow at 1 o’clock. 

Wednesday, December 18, 1861. 

On motion by Mr. Foster, the Senate resumed the consideration of the resolutions 
reported from the Committee on the Judiciary affirming the right of Frederic P. Stanton 
to the seat in the Senate now occupied by the Hon. James H. Lane; and 

After debate. 

On motion by Mr. Collamer that the resolutions and the report of the committee be 
recommitted to the Committee on the Judiciary, it was determined in the affirmative— 
yeas 26, nays 9. 

On motion by Mr. Foster, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Bright, Browning, Carlile, Chandler, 
Clark, Collamer, Cowan, Fessenden, Foot, Grimes, Hale, Harlan, Harris, Howe, King, 
Lane of Indiana, Latham, Morrill, Pearce, Pomeroy, Saulsbury, Sherman, Sumner, 
Wade, Willey, and Wilson. 

Those who voted in the negative are Messrs. Bayard, Dixon, Doolittle, Foster, John¬ 
son of Tennessee, Nesmith, Simmons, Ten Eyck, and Trumbull. 

So it was 

Ordered , That the resolutions and the report of the committee be recommitted to the 
Committee on the Judiciary. 

[The debate on the motion to recommit is found on pages 127-130 of the Congressional 
Globe, part 1, 2d sess. 37th Cong. ] 

Monday, January 6, 1862. 

Mr. Foster, from the Committee on the Judiciary, to whom was recommitted the 
report of the Committee on the Judiciary on the credentials of the Hon. Frederic P. 
Stanton, claiming to be entitled to the seat in the Senate now occupied by the Hon. 


282 


SENATE ELECTION CASES. 


James H. Lane, reported the same without amendment, and with a recommendation 
that the Senate do adopt the following resolutions: 

Resolved, That James H. Lane is not entitled to a seat in this body. 

Resolved, That Frederic P. Stanton is entitled to a seat in this body. 

Tuesday, January 7, 1862. 

On motion by Mr. Foster, the Senate resumed the consideration of the resolutions 
reported from the Committee on the Judiciary, declaring Frederic P. Stanton entitled 
to the seat in the Senate now held by the Hon. James H. Lane as a Senator from the 
State of Kansas; and 

On motion by Mr. Kennedy, the Senate adjourned. 

Wednesday, January 8, 1862. 

The Senate resumed the consideration of the resolutions reported from the Committee 
on the Judiciary, declaring Frederic P. Stanton entitled to the seat in the Senate now 
held by the Hon. James H. Lane as a Senator from the State of Kansas; and 
After debate, 

On motion by Mr. Grimes, 

Ordered, That the further consideration thereof be, postponed to to-morrow. 

[The debate is found on pages 222-227 of the Congressional Globe, part 1, 2d sess. 
37th Cong.] 

Monday, January 13, 1862. 

The Senate resumed the consideration of the resolutions reported from the Committee 
on the Judiciary, declaring Frederic P. Stanton entitled to the seat now held by the 
Hon. James H. Lane as a Senator from the State of Kansas. 

On motion by Mr. Collamer that Frederic P. Stanton, who contests the seat of the 
Hon. James H. Lane, have leave to be heard in person at the bar of the Senate, it was 
determined in the affirmative—yeas 32, nays 4. 

On motion by Mr. Fessenden, the yeas and nays being desired by one-fifth of the 
Senators present, 

Those who voted in the affirmative are Messrs. Anthony, Bright, Browning, Carlile, 
Chandler, Clark, Collamer, Davis, Doolittle, Fessenden, Foot, Foster, Grimes, Harlan, 
Harris, Howe, Johnson, King, Lane of Indiana, Lane of Kansas, Latham, McDougall, 
Morrill, Nesmith, Pearce, Pomeroy, Powell, Simmons, Ten Eyck, Trumbull, Wade, and 
Wilson. 

Those who voted in the negative are Messrs. Dixon, Hale, Sumner, and Wilkinson. 

So it was 

Ordered, That Frederic P. Stanton, who contests the seat of the Hon. James H. Lane, 
have leave to be heard in person at the bar of the Senate. 

On motion by Mr. Fessenden that the Senate reconsider the vote agreeing to the mo¬ 
tion of Mr. Collamer, it was determined in the negative. 

On motion by Mr. Clark to amend the first resolution reported by the committee by 
striking out the word “not,” 

After debate, and the consideration of executive business, 

On motion by Mr. Pearce, the Senate adjourned. 

[The debate is found on pages 290-297 of the Congressional Globe, part 1, 2d sess. 
37th Cong. ] 

Wednesday, January 15,1862. 

The Senate resumed the consideration of the resolution reported from the Committee 
on the Judiciary, declaring Frederic P. Stanton entitled to the seat now held by the 
Hon. James H. Lane as a Senator from the State of Kansas; and 
The amendment proposed by Mr. Clark to the first resolution, viz, strike out the 
word “not,” being under consideration, 

After debate, and the consideration of executive business, 

On motion by Mr. Hale, the Senate adjourned. 

[The debate is found on pages 336-344 of the Congressional Globe, part 1, 2d sess. 
37th Cong.] 

Thuksday, January 16, 1862. 

The Vice-President announced that the hour of 1 o’clock having arrived, it was the 
duty of the Chair to call up the unfinished business of the Senate of yesterday, which 
was the resolutions reported from the Committee on the Judiciary, declaring Frederic 
P. Stanton entitled to the seat in the Senate now held by the Hon. James H. Lane as 
a Senator from the State of Kansas; and the Senate resumed the consideration of the 
said resolutions. 

On the question to agree to the amendment proposed by Mr. Clark to the first resolu¬ 
tion, viz, strike out the word “not,” 

After debate, it was determined in the affirmative—yeas 24, nays 16. 


STANTON VS. LANE. 283 

On motion by Mr. Clark, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Bright, Browning, Chandler, Clark, 
Collamer, Cowan, Doolittle, Fessenden, Hale, Harlan, Harris, Howe, King, Lane of In¬ 
diana, Latham, Morrill, Pomeroy, Rice, Sherman, Sumner, Trumbull, Wilkinson, Wil- 
mot, and Wilson. 

Those who voted in the negative are Messrs. Anthony, Bayard, Carlile, Davis, Dixon, 
Foot, Foster, Johnson, Kennedy, McDougall, Nesmith, Pearce, Powell, Saulsbury, Ten 
Eyck, and Wade. 

So the amendment was agreed to. 

On the question to agree to the resolution as amended, it was determined in the affirm¬ 
ative. 

So it was 

Resolved , That James H. Lane is entitled to a seat in this body. 

On the question to agree to the second resolution reported by the committee, 

On motion by Mr. Hale, 

Ordered, That the further consideration of the resolution be postponed indefinitely. 

COMPENSATION OF MR. STANTON. 

[First session of the Thirty-seventh Congress.] 

Tuesday, August 6, 1861. 

Mr. Dixon submitted the following resolution; which was considered by unanimous 
consent and agreed to: 

“ Resolved , That the usual mileage and pay be allowed and paid to Frederic P. Stan¬ 
ton while contesting his right to a seat in the Senate from the State of Kansas. ” 

[Second session of the Thirty-seventh Congress.] 

Thursday, January 16, 1862. 

Mr. Dixon submitted the following resolution; which was considered by unanimous 
consent, and referred to the Committee to Audit and Control the Contingent Expenses 
of the Senate: 

‘ ‘ Resolved , That the usual compensation and mileage of a Senator be allowed to Fred¬ 
eric P. Stanton up to the time of the termination of his contest for a seat in the Senate 
as a Senator for the present Congress, to be paid out of the contingent fund.” 

[The debate is found on pages 359-364 of the Congressional Globe, part 1, 2d sess. 
37th Cong.] 

Friday, January 17, 1862. 

Mr. Dixon, from the Committee to Audit and Control the Contingent Expenses of the 
Senate, to whom was referred the resolution allowing the usual pay and mileage of a 
Senator to Frederic P. Stanton during the time he was contesting the seat of the Hon. 
James H. Lane, reported it without amendment. 

The Senate proceeded to consider the said resolution, as in Committee of the Whole, 
and having been amended on the motion of Mr. Fessenden, it was reported to the Sen¬ 
ate. 

Ordered , That it be engrossed and read a third time. 

The said resolution was read a third time, as follows: 

‘ ‘ Resolved , That the usual compensation, exclusive of mileage which he has already 
received, of a Senator be allowed to Frederic P. Stanton up to the termination of his 
contest for a seat in the Senate as a Senator for the present Congress, to be paid out of 
the contingent fund;” 

And on the question, Shall the resolution pass ? it was determined in the affirmative. 
******* 

On motion by Mr. Fessenden that the Senate reconsider the vote on the passage of the 
resolution allowing pay and mileage to Frederic P. Stanton, it was determined in the 
affirmative. 

The question recurring upon the passage of the resolution, and the same having been 
amended on the motion of Mr. Fessenden, by striking out the words “which he has 
already received,” it was agreed to, as follows: 

“ Resolved, That the usual compensation, exclusive of mileage, of a Senator be allowed 
to Frederic P. Stanton up to the time of the termination of his contest for a seat in the 
Senate as a Senator for the present Congress, to be paid out of the contingent fund.” 

[The debate is found on pages 376-379 of the Congressional Globe, part 1, 2d sess. 
37th Cong.] 


284 


SENATE ELECTION CASES. 


[Thirty-seventh Congress—Second session.] 

BENJAMIN STARK, 

Senator from Oregon from February 27,1862, till September 13,1862. 


January 6,1862, the credentials of Mr. Stark, who had been appointed by the governor of Oregon 
to fill a vacancy, were presented in the Senate. A resolution was submitted that the oath be not 
administered to Mr. Stark, and that his credentials be referred to the Committee on the Judiciary. 
January 10, after a debate on the prima facie right of Mr. Stark to the seat, the resolution was agreed 
to. February 7, the committee, “without expressing any opinion as to the effect of the papers 
before them upon any subsequent proceedings in the case,” reported a resolution that Mr. Stark 
was entitled to take the oath of office. Mr. Trumbull, dissenting, “ conceived that it was the duty 
of the committee to have expressed its opinion on the evidence of disloyalty before it, and to have 
reported in favor of or against the swearing in of the Senator, as the evidence should warrant, and 
not allow him to be first sworn and leave the question of his loyalty to be subsequently determined 
on a motion to expel.” The report was accompanied by testimony. February 27 the resolution 
reported by the committee passed after amendment, and Mr. Stark took his seat. February 28 a 
resolution was submitted that the papers relating to the loyalty of Benjamin Stark be referred to 
the same committee with instructions to investigate the charges prefei*red against him. March 18 
this resolution passed the Senate, having been so amended that the papers were referred to a select 
committee instead of to the Committee on the Judiciary. April 22 this committee reported the 
conclusions from the facts proved,one of which was “that the Senator from Oregon is disloyal 
to the Government of the United States.” One member of the committee did not concur in this 
conclusion. May 7 a resolution was submitted that Mr. Stark, who had been found disloyal by a 
committee of the Senate, be expelled, which resolution was determined in the negative, June 6, by 
a vote of 16 yeas to 21 nays. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journal, 2d sess. 37th Cong.; the report (majority and minority) of the Com¬ 
mittee on the Judiciary (excepting the evidence), from Senate Reports, 2d sess. 37th Cong., No. 11; 
and the report of the select committee from Senate Reports, lb. No. 38. 

Special references to the debates of each day are inserted below. 

Monday, January 6, 1862. 

Mr. Nesmith presented the credentials of the Hon. Benjamin Stark, appointed a Sen¬ 
ator in Congress by the governor of the State of Oregon to fill the vacancy occasioned by 
the death of the Hon. Edward D. Baker; which were read. 

Mr. Fessenden moved that the oath prescribed by law be not administered to Mr. 
Stark, and that his credentials, together with certain papers presented by Mr. Fessenden, 
be referred to the Committee on the Judiciary. • 

After debate, 

On motion by Mr. Bayard, 

Ordered, That the motion of Mr. Fessenden lie on the table. 

[The debate is found on pages 183-185 of the Congressional Globe, part 1, 2d sess. 
37th Cong.] 


Thursday, January 9, 1862. 

On motion by Mr. Bayard that the Senate proceed to the consideration of the motion 
submitted by Mr. Fessenden the 6th instant, that the oath prescribed by law be not ad¬ 
ministered to Mr. Stark, and that his credentials, together with certain papers presented 
by Mr. Fessenden, be referred to the Committee on the Judiciary, it was determined in 
the negative. 


Friday, January 10, 1862. 

The Senate resumed the consideration of the motion submitted by Mr. Fessenden the 
6th instant, ‘ ‘ that the oath prescribed by law be not administered to Mr. Stark, and that 
his credentials, together with certain papers presented by Mr. Fessenden, be referred to 
the Committee on the Judiciary.” 

On motion by Mr. Bayard to amend the motion of Mr. Fessenden by striking out the 
word “not,” 

After debate, it was determined in the negative—yeas 9, nays 29. 

On motion by Mr. Bayard, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Bayard, Bright, Latham, Nesmith, 
Pearce, Powell, Rice, Saulsbury, and Thomson. 

Those who voted in the negative are Messrs. Anthony, Browning, Chandler, Collamer, 
Cowan, Davis, Dixon, Doolittle, Fessenden, Foster, Grimes, Hale, Harlan, Harris, Howe’ 
Johnson, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, Sim¬ 
mons, Sumner, Ten Eyck, Trumbull, Wade, ‘Wilkinson, and Wilson. 


BENJAMIN STARK. 285 

On the question to agree to the motion of Mr. Fessenden, it was determined in the 
affirmative—yeas 28, nays 11. 

On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the 
Senators present, 

Those who voted in the affirmative are Messrs. Anthony, Browning, Chandler, Colla- 
mer, Cowan, Davis, Dixon, Doolittle, Fessenden, Foster, Grimes, Hale, Harlan, Harris, 
Howe, Johnson, King, Lane of Indiana, Lane of Kansas, Morrill, Pomeroy, Sherman, 
Simmons, Sumner, Ten Eyck, Trumbull, Wade, and Wilson. 

Those who voted in the negative are Messrs. Bayard, Bright, Carlile, Kennedy, La¬ 
tham, Nesmith, Pearce, Powell, Rice, Saulsbury, and Thomson. 

[The debate is found on pages 265-269 of the Congressional Globe, part 1, 2d sess. 
37th Cong.] 

Friday, February 7, 1862. 

Mr. Harris, from the Committee on the Judiciary, to whom were referred the creden¬ 
tials of the Hon. Benjamin Stark, with certain papers presented by Mr. Fessenden in 
reference thereto, submitted a report (No. 11), accompanied by the following resolution 
(resolution given below in report). 

Mr. Trumbull asked and obtained leave to submit the views of the minority of the 
Committee on the Judiciary on the subject. 

On motion by Mr. Sumner, 

Ordered , That the report of the Committee on the Judiciary, with the views of the 
minority of the committee, and the accompanying papers, be printed. 

[The debate is found on pages 696, 697 of the Congressional Globe, part 1, 2d sess. 
37th Cong.] 

REPORT OF COMMITTEE.* 

[The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eyck, Cowan 
Harris, Bayard, and Powell.] 

In the Senate of the United States. 

February 7, 1862.—Read, and ordered to be printed. 

Mr. Harris submitted the following report: 

The Committee on the Judiciary, to whom were referred the credentials of Benjamin 
Stark as a Senator from the State of Oregon, with the accompanying papers, have had 
the same under consideration, and, without expressing any opinion as to the effect of the 
papers before them upon any subsequent proceedings in the case, they report the follow¬ 
ing resolution: 

Resolved, That Benjamin Stark, of Oregon, appointed a Senator of that State by the 
governor thereof, is entitled to take the Constitutional oath of office. 

views of the minority 

Of the Committee on the Judiciary {Mr. Trumbull ) on the credentials of Benjamin Stark as a 
Senator from Oregon , and the papers presented on the subject. 

February 7, 1862.—Ordered to be printed. 

Unable to agree with the majority of the committee, to whom were referred the cre¬ 
dentials of Benjamin Stark, with the accompanying papers, the undersigned submits the 
following views: 

A preliminary question was raised in the Senate when this case was referred to the 
committee, whether it was competent for the Senate for any cause to refuse to allow a 
person to be sworn as a member of the Senate whose credentials were in proper form, 
and who possessed all the qualifications as to age, citizenship, and inhabitancy prescribed 
by the Constitution, and whether the only remedy which the Senate had to protect itself 
against the presence of an infamous person, a convicted felon, or an avowed and open 
traitor, was not by expulsion by a two-thirds vote after he should have been sworn into 
office. The Senate decided, after debate, to refer the credentials of Mr. Stark, with the 
accompanying papers, consisting of written statements and affidavits impeaching his 
loyalty, to the committee without allowing him to be sworn. A majority of the com¬ 
mittee now report the case back, with a resolution that Mr. Stark is entitled to take the 
Constitutional oath, expressly stating that they do so “without expressing any opinion 
as to the effect of the papers before them upon any subsequent proceedings in the case.” 

This reservation of opinion on the evidence could only have become necessary on the sup- 

* The accompanying: documents are annexed to the report (pages 5-15), a reference to which is 
given in the head-note. 




286 


SENATE ELECTION CASES. 


position that some subsequent proceedings might be taken in the case, referring doubtless 
to a motion to expel the Senator after he should have been admitted a member, for the 
reasons assigned in the accompanying papers, in effect establishing the principle that 
evidence of disloyalty, which might be sufficient to expel a member when admitted, was 
not sufficient to prevent his qualifying as a member. To this principle the undersigned 
cannot agree. He believes it was the duty of the committee to examine and pass upon 
the evidence before it, and if found insufficient to prevent Mr. Stark from taking the 
Constitutional oath, that it would also be insufficient to warrant his expulsion after he 
was admitted. 

It is admitted that neither the Senate, Congress, nor a State can superadd other quali¬ 
fications for a Senator to those prescribed by the Constitution, and yet either maj r pre¬ 
vent a person possessing all those qualifications, and duly elected, from taking his seat 
in the Senate. Does any one question the right of a State to arrest for crime a person 
duly qualified for and appointed a Senator, hold him in confinement, and thereby prevent 
his appearing in the Senate to qualify? Suppose a Senator, after his appointment, and 
before qualifying, to commit the crime of murder, would any one question the right of 
the State authorities where the crime was committed to arrest, confine, and, if found 
guilty, execute the murderer, and thereby forever prevent his taking his seat ? Or, if 
the punishment for the offense was imprisonment, would any one question the right to 
hold the Senator in prison, and thereby prevent his appearing in the Senate? 

Could the Senate in such a case expel him before he had been admitted to a seat ? Or 
must he [be] brought from the felon’s cell, be introduced into the Senate, and sworn as 
a member before his seat could be declared vacant ? If not, must the State go unrepre¬ 
sented till the time for which he was appointed has expired? Or would it be competent 
for the Senate in such a case, by a majority vote, to declare the convict incompeten t to 
hold a seat in the body, and thereby open the way for the appointment of a successor? 
It is manifest that the prescribing of the qualifications for a Senator in the Constitution 
was not intended to prevent his being held amenable for his crimes. The fact that the 
Constitution declares that Senators and Representatives ‘ ‘ shall in all cases, except treason, 
felony, and breach of the peace, be privileged from arrest during their attendance at 
the sessions of their respective houses, and in going to and returning from the same, ’ ’ 
is conclusive that for those offenses they may be arrested. As a punishment for crime, 
then, it is clear that a Senator-elect, possessing all the Constitutional qualifications of age, 
citizenship, and inhabitancy, may be prevented from taking the oath of office. Congress 
has repeatedly acted upon the presumption that it was entirely competent for it to pre¬ 
scribe, as a punishment for crime, an inability forever afterwards to hold any office of 
honor, profit, or trust under the United States. 

By a statute passed in 1790, any person giving a reward to a United States judge as 
a bribe to procure from him any opinion or judgment, and the judge receiving such 
bribe, are both declared to be forever disqualified to hold any office of honor, trust, or 
profit under the United States. By an act passed in 1853, any member of Congress after 
his election, and whether before or after he is qualified, who shall accept any reward 
given for the purpose of influencing his vote on any question which may come before 
him in his official capacity is declared incapable forever of holding any office of honor, 
trust, or profit under the United States. Similar laws, it is believed, exist in most of 
the States, prescribing as part of the punishment for particular offenses, such as dueling, 
bribery, and some others, a disqualification for holding any office under the State, and 
this notwithstanding the State constitutions may have prescribed the qualifications for 
members of their legislatures, of which the disqualification arising from the convic¬ 
tion for crime was not one. The power of Congress to prescribe the punishment for 
treason is expressly given by the Constitution, except that it cannot be made to work 
corruption of blood or forfeiture beyond the life of the person attainted. Does any one 
doubt the power of Congress under this clause of the Constitution to declare that a per¬ 
son convicted of treason should forever be incapable of holding any office under the 
United States ? If this were done, would it be pretended that a convicted traitor was 
entitled to be sworn as a Senator? The clause of the Constitution prescribing the qual¬ 
ifications of Senators and Representatives could never have been intended to limit the 
power to make disqualification to hold those or any other offices a penalty for the com¬ 
mission of crime, especially treason. Its design, doubtless, was to produce uniformity of 
qualification in all the States, and to prevent any particular class of persons, such as 
ministers of the gospel, or others, from being excluded from these positions. If it be 
competent for Congress to make disqualification to hold office a punishment for an of¬ 
fense against the United States, then it is clearly competent for the Senate, which, by 
the Constitution, is made “the judge of the elections, returns, and qualifications of its 
own members,” to do the same thing, so far as the right to take a seat in that body is 
concerned. Doubtless a law of Congress declaring that a person convicted of a partic¬ 
ular offense should not hold office under ths United States, and the decision of the 


BENJAMIN STARK. 


287 


courts sustaining such a law, would not preclude the Senate from admitting such a per¬ 
son to a seat, should it think proper, because the Senate is the exclusive judge of the 
elections, returns, and qualifications of its own members; yet it is hardly conceivable 
that the Senate ever wouljl admit such a person to be sworn; nor does the fact that Con¬ 
gress has not adopted such a punishment for disloyalty or treason prevent the Senate 
from refusing to allow to be sworn as a member a person believed by the body to be 
guilty of those offenses or other infamous crimes. 

That one avowed traitor, a convicted felon, or a person known to be disloyal to the 
Government, has a constitutional right to he admitted into the body, would imply that 
the Senate had no power of protecting itself—a power which, from the nature of things, 
must be inherent in every legislative body. Suppose a member sent to the Senate, be¬ 
fore being sworn, were to disturb the body and by violence interrupt its proceedings, 
would the Senate be compelled to allow such a person to be sworn as a member of the 
body before it could cast him out ? Surely not, unless the Senate is unable to protect 
itself and preserve its own order. The Constitution declares that ‘ ‘ each house may de¬ 
termine the rules of its proceedings, punish its members for disorderly behavior, and with 
the concurrence of two-thirds, expel a member.” The connection of the sentence in 
which the power of expulsion is given would indicate that it was intended to be exer¬ 
cised for some act done as a member, and not for some cause existing before the member 
was elected or took his seat. For any crime or infamous act done before that time the 
appropriate remedy would seem to be to refuse to allow him to qualify, which, in the 
judgment of the undersigned, the Senate may properly do; not by way of adding to 
the qualifications imposed by the Constitution, but as a punishment due to his crimes or 
the infamy of his character. Hence, the undersigned, conceiving that it was the duty 
of the committee to have expressed its opinion on the evidence of disloyalty before it, 
and to have reported in favor of or against the swearing in of the Senator, as the evi¬ 
dence should warrant, and not allow him to be first sworn, and leave the question oi 
his loyalty to be subsequently determined on a motion to expel, the undersigned for¬ 
bears to review the evidence of disloyalty before the committee, or to express any 
opinion upon it, till the pending question of jurisdiction to consider it is determined. 

LYMAN TRUMBULL. 


Tuesday, February 18, 1862. 

On motion by Mr. Harris, the Senate proceeded to consider the resolution reported by the 
Committee on the Judiciary, declaring Benjamin Stark, appointed a Senator by the gov¬ 
ernor of the State of Oregon, entitled to take the constitutional oath of office; and 

On motion by Mr. Hale that the report of the Committee on the Judiciary in the case 
of Benjamin Stark, of Oregon, appointed a Senator of that State by the governor thereof, 
be recommitted to the committee, and that said committee be instructed to report on the 
facts proved or admitted, whether, in their judgment, the evidence before them so far 
impeaches his loyalty as to disqualify him from holding a seat in the Senate of the 
United States, 

After debate, 

On motion by Mr. Doolittle, the Senate adjourned. 

[The debate is found on pages 861-873 of the Congressional Globe, part 1, 2d sess. 
37th Cong.] 


Thursday, February 20, 1862. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary, declaring that Benjamin Stark, appointed a Senator by the governor of 
the State of Oregon, is entitled to take the constitutional oath of office; and 

On motion by Mr. Wilkinson, 

Ordered , That the further consideration thereof be postponed to to-morrow at 1 
o’clock. 

Monday, February 24, 1862. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary, declaring Benjamin Stark, appointed a Senator by the governor of the 
State of Oregon, entitled to take the constitutional oath of office; and, 

After debate and the consideration of executive business, the Senate adjourned. 

[The debate is found on pages 925-929 of the Congressional Globe, part 1, 2d sess. 
37th Cong.] 

Wednesday, February 26, 1862. 

On motion by Mr. Harris, the Senate resumed the consideration of the resolution re¬ 
ported by the Committee on the Judiciary, affirming the right of Benjamin Stark, ap- 


288 


SENATE ELECTION CASES. 


pointed a Senator by the governor of the State of Oregon, to take the constitutional oath 
of office; and 

Mr. Hale having withdrawn the motion made by him to recommit the report to the 
Committee on the Judiciary, with certain instructions, 

On motion by Mr. Sumner to amend the resolution by striking out the words “is en¬ 
titled to take the constitutional oath of office,” and in lieu therof inserting “ and now 
charged with disloyalty by the affidavits of many citizens of Oregon, and also by a letter 
addressed to the Secretary of State, and signed jointly by many citizens of Oregon, some 
of whom hold public trusts under the United States, is not entitled to take the constitu¬ 
tional oath of office without a previous investigation into the truth of the charge, ’ ’ 

After debate, 

On motion by Mr. Fessenden that the Senate adjourn, it was determined in the affirm¬ 
ative—yeas 21, nays 20. 

[The debate is found on pages 963-975 of the Congressional Globe, part 2, 2d sess. 
37th Cong. ] 

Thuesday, February 27, 1862. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary, affirming the right of Benjamin Stark, appointed a Senator by the gov¬ 
ernor of the State of Oregon, to take the constitutional oath of office; and 

On the question to agree to the amendment proposed by Mr. Sumner to the resolu¬ 
tion, viz: 

Strike out the words “is entitled to take the constitutional oath of office” and in 
lieu thereof insert “and now charged with disloyalty by the affidavits of many citizens 
of Oregon, and also by a letter addressed to the Secretary of State, and signed jointly by 
many citizens of Oregon, some of whom hold public trusts under the United States, is 
not entitled to take the constitutional oath of office without a previous investigation into 
the truth of the charge, ’ ’ 

After debate, it was determined in the negative—yeas 18, nays 26. 

On motion by Mr. Sumner, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Chandler, Clark, Dixon, Doolittle, 
Grimes, Hale, Harlan, Howard, King, Lane of Indiana, Morrill, Pomeroy, Sumner, 
Trumbull, Wade, Wilkinson, Wilmot, and Wilson of Massachusetts. 

Those who voted in the negative are Messrs. Anthony, Browning, Carlile, Collamer, 
Cowan, Davis, Fessenden, Foster, Harris, Henderson, Howe, Johnson, Kennedy, Latham, 
McDougall, Nesmith, Pearce, Powell, Rice, Saulsbury, Sherman, Simmons, Ten Eyck, 
Thomson, Willey, and Wilson of Missouri. 

On motion by Mr. Doolittle to amend the resolution by inserting at the end thereof 
the words “without prejudice to any subsequent proceedings in the case,” it was deter¬ 
mined in the affirmative. 

On the question to agree to the resolution as amended, as follows: 

“ Resolved , That Benjamin Stark, of Oregon, appointed a Senator of that State by the 
governor thereof, is entitled to take the constitutional oath of office without prejudice to 
any subsequent proceedings in the case, ’ ’ 

It was determined in the affirmative—yeas 26, nays 19. 

On motion by Mr. Sumner, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Anthony, Browning, Carlile, Collamer, 
Cowan, Davis, Fessenden, Foster, Harris, Henderson, Howe, Johnson, Kennedy, Latham, 
McDougall, Nesmith, Pearce, Powell, Rice, Saulsbury, Sherman, Simmons, Ten Eyck, 
Thomson, Willey, and Wilson of Missouri. 

Those who voted in the negative are Messrs. Chandler, Clark, Dixon, Doolittle, Foot, 
Grimes, Hale, Harlan, Howard, King, Lane of Indiana, Morrill, Pomeroy, Sumner, 
Trumbull, Wade, Wilkinson, Wilmot, and Wilson of Massachusetts. 

So the resolution as amended was agreed to; and 

The Vice-President administered to Mr. Stark the oath prescribed bylaw, and he took 
his seat in the Senate. 

[The debate is found on pages 988-994 of the Congressional Globe, part 2, 2d sess. 
37th Cong.] 

Feiday, February 28, 1862. 

Mr. Stark submitted the following resolution for consideration: 

“ Resolved, That the papers relating to the loyalty of Benjamin Stark, a Senator trom 
Oregon, be withdrawn from the files of the Senate and referred to the Committee on the 
Judiciary, with instructions to investigate the charges preferred against said Stark on 
all evidence which has been or maybe presented, and with power to send for persons and 
papers. ’ 1 


BENJAMIN STARK. 


289 


The Senate proceeded, by unanimous consent, to consider the said resolution; and 

After debate, 

On motion by Mr. McDougall that th3 resolution lie on the table, it was determined 
in the negative—yeas 7, nays 32. 

On motion by Mr. King, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Carlile, Hale, McDougall, Nesmith, 
Pearce, Powell, and Saulsbury. 

Those who voted in the negative are Messrs. Anthony, Browning, Chandler, Clark, 
Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Harlan, Harris, 
Henderson, Howard, Howe, Johnson, King, Lane of Indiana, Latham, Morrill, Pom¬ 
eroy, Rice, Sherman, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, Willey, and 
Wilson of Massachusetts. 

Pending further debate upon the resolution, 

The Vice-President announced that the hour of 1 o’clock had arrived, and that it was 
the duty of the Chair to call up the special order of the day for that hour, which was the 
bill (S. 151) to confiscate the property and free the slaves of rebels, being the unfinished 
business of the Senate at its last adjournment; and the Senate resumed the consideration 
of the said bill. 

[The debate is found on pages 1011-1014 of the Congressional Globe, part 2, 2d sess. 
37th Cong.] 

Tuesday, March 18, 1862. 

On motion by Mr. Howe, the Senate resumed the consideration of the resolution sub¬ 
mitted by Mr. Stark the 28th of February, in relation to an investigation into certain 
charges of disloyalty preferred against him; and 

After debate, 

On motion by Mr. Wilkinson that the resolution lie on the table, it was determined 
in the negative—yeas 3, nays 35. 

On motion by Mr. Howe, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Hale, Saulsbury, and Wilkinson. 

Those who voted in the negative are Messrs. Anthony, Bayard, Browning, Clark, Col¬ 
lamer, Cowan, Davis, Dixon, Doolittle, Fessenden, Foot, Foster, Harlan, Harris, Hen¬ 
derson, Howard, Howe, Kennedy, King, Lane of Indiana, Lane of Kansas, Latham, 
Morrill, Nesmith, Pomeroy, Powell, Sherman, Simmons, Sumner, Ten Eyck, Thomson, 
Trumbull, Wade, Wilmot, and Wilson of Massachusetts. 

After further debate, 

On motion by Mr. Trumbull to amend the resolution by striking out the words “the 
Committee on the Judiciary” and inserting “a select committee to consist of five mem¬ 
bers,” it was determined in the affirmative. 

On the question to agree to the resolution, as amended, as follows: 

“Resolved , That the papers relating to the loyalty of Benjamin Stark, a Senator from 
Oregon, be withdrawn from the files of the Senate and referred to a select committee to 
consist of five members, with instructions to investigate the charges preferred against 
said Stark on all evidence which has been or may be presented, and with power to send 
for persons and papers, ’ ’ 

It was determined in the affirmative—yeas 37, nays 3. 

On motion by Mr. Hale, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Anthony, Browning, Clark, Collamer, 
Cowan, Davis, Dixon, Doolittle, Fessenden, Foot, Foster, Harlan, Harris, Henderson, 
Howard, Howe, Kennedy, King, Lane of Indiana, Lane of Kansas, Latham, Morrill, 
Nesmith, Pomeroy, Powell, Rice, Sherman, Simmons, Sumner, Ten Eyck, Thomson, 
Trumbull, Wade, Wilkinson, Wilmot, Wilson of Massachusetts, and Wright. 

Those who voted in the negative are Messrs. Bayard, Hale, and Saulsbury. 

So the resolution as amended was agreed to. 

On motion by Mr. Collamer, 

Ordered, That the select committee authorized by the said resolution be appointed by 
the Vice-President. 

The Vice-President appointed Mr. Clark, Mr. Howard, Mr. Wright, Mr. Willey, and 
Mr. Howe. 

[The debate is found on pages 1261-1266 of the Congressional Globe, part 2, 2d sess. 
37th Cong.] 

Tuesday, April 2, 1862. 

Mr. Clark, from the select committee appointed to investigate the truth of certain 
charges against the Hon. Benjamin Stark, a Senator from the State of Oregon, submitted 
a report (No. 38), which was ordered to be printed. 

S. Doc. 11-19 



290 


SENATE ELECTION CASES. 


REPORT OF SELECT COMMITTEE. 

[The committee consisted of Messrs. Clark, Howard, Wright, Willey, and Sherman.*] 

In the Senate of the United States. 

April 22,1862.—Ordered to he printed. 

Mr. Clark submitted the following report: 

The select committee to whom were referred 44 the papers relating to the loyalty of 
Benjamin Stark, a Senator from Oregon,” report: 

By the resolution under which the committee were appointed they were instructed 
4 4 to investigate the charges preferred against said Stark on all the evidence which has 
been or may be presented, and with power to send for persons and papers.” 

The first question which presented itself for the consideration of the committee was, 
whether they would proceed to take further testimony than that already taken and 
referred to them by the resolution. In determining this question the committee were 
influenced by the facts that the Senator whose loyalty is questioned comes from the 
distant State of Oregon; that the witnesses who could be supposed to know most in 
regard to his loyalty resided in that State, and that their testimony could not be had 
until the next session of Congress; that the Senator was appointed by the governor of 
Oregon to fill the vacancy occasioned by the death of the lamented Baker, and that his 
term would expire upon the meeting of the legislature of Oregon in September next, 
and before the testimony could be received and used. 

The committee therefore came to the conclusion that it was not practicable to take 
further testimony, unless the Senator from Oregon, Mr. Stark, might desire to take tes¬ 
timony to rebut that already before the committee. 

To ascertain Mr. Stark’s desire on this point, they caused to be addressed to him a 
letter, of which the following is a copy: 


United States Senate, 
Committee Room on Claims , March 20, 1862. 

Sir: At a meeting of the select committee authorized by the resolution of the Senate 
of the 18th instant 4 4 to investigate the charges preferred against Mr. Stark, on all evi¬ 
dence which has been or may be presented, with power to send for persons and papers, ’ ’ 
the following resolution was adopted: 

On motion by Mr. Howard, 

4 4 Resolved , That the Hon. Mr. Stark be notified of the next meeting of the committee, 
and be invited to attend and submit to the committee any suggestions or matters he 
may be pleased to present in relation to the subject with which the committee is 
charged.” 

In conformity with the foregoing resolution you are respectfully notified that the next 
meeting of the committee will be held at the room of the Senate Committee on Claims 
on Monday next, the 24th instant, at 11 o’clock a. m., which you are invited to attend. 

By order of the committee. 

N. C. TOWLE, 

Clerk Select Committee , &c. 

Hon. Benjamin Stark, 

Senator from Oregon. 

The committee met on the 24th of March, and the Senator from Oregon attended the 
meeting in compliance with the invitation of the committee, and desired that the com¬ 
mittee should examine the papers before them, and if they should come to the conclusion 
that grounds were furnished lor the charge of disloyalty by the papers and testimony, 
that the committee should draw up specific charges, to which he would file his answer. 
This the committee declined to do, for the reason that they did not wish to become his 
prosecutors, and were charged by the Senate with investigation and not accusation. 

Mr. Stark was informed that the committee did not propose to take any further testi¬ 
mony unless he desired it, but would investigate the charges as presented by the papers 
then before them. To which the committee understood Mr. Stark to reply that he did 
not wish to take any further testimony as the matter stood. It was then suggested by 
the committee to the Senator from Oregon that he should sumbit to the committee his 
answer in writing to the allegations and evidence then before the committee, with an? 
further evidence he might wish to present, and that the committee would adjourn to 
afford him the necessary time for that purpose. 

With this proposal the Senator expressed his compliance and satisfaction, and the 
committee adjourned to meet again at his convenience. 


* Mr. Sherman was appointed in place of Mr. Howe, excused 




BENJAMIN STARK. 291 

At a subsequent meeting of the committee on the 14th April the following statement 
was presented from Mr. Stark and considered: 


Washington, D. C., April 10, 1862. 

Sir: I have the honor to acknowledge the reception of a note from your committee, 
inviting me to make any suggestions I may think proper upon the statements and ex 
parte affidavits in relation to my loyalty, which were referred to the committee under 
the resolution adopted by the Senate on the-ultimo. 

Deeply sensible of the courtesy of the committee thus extended to me, I regret that 
unavoidable absence from the city and the pressure of other engagements have prevented 
me from making an earlier response. 

I presume that in extending to me this invitation before entering upon the investiga¬ 
tion necessary to a discharge of the delicate duty devolved upon them by the Senate the 
committee designed simply to afford me an opportunity, if I should deem it proper to do 
so, to present my personal views of the matter now pending before them. 

Under the resolution of reference, the committee are clothed with the fullest powers 
for the purpose of confirming or dissipating any doubts which may have been engen¬ 
dered by these statements and affidavits as to my loyalty. In offering that resolution I 
have shown, I think conclusively, that there was no disposition on my part to shun the 
most searching investigation. If the committee propose to confine their investigation 
exclusively to those statements and ex parte affidavits now before them, in connection 
with what I may submit for their consideration, it may not be inappropriate for me to 
express my opinions in regard to them, and I shall do so in the same spirit by which the 
committee appear to have been actuated in making the request. 

As it could not be fairly supposed that I would permit myself to occupy the attitude 
of self-prosecutor, or that I would assume.the task of defending myself when no charge 
on prima fade evidence had been preferred against me, I trust that I may do so without 
derogating from the true position which my honor and self-respect demand that I should 
occupy. 

With all due deference, therefore, I submit that as a Senator of the United States for 
the State of Oregon I am entitled to, and I claim, every presumption of honor, integrity, 
loyalty, and patriotism that can be claimed by any other Senator until such presump¬ 
tion is overborne by competent testimony. It certainly would be very extraordinary to 
put an honorable Senator upon trial for expulsion without charges and specifications made 
with reasonable (if not technical) precision, and supported by testimony subjected to all 
the tests which human wisdom and human experience have found to be essential for the 
ascertainment of truth. Should such a case ever arise it is reasonable to suppose that 
it would not be permitted long to interrupt the order or disturb the decorum of the Amer¬ 
ican Senate. Unless the proceedings of your committee are to be regarded as a prelim¬ 
inary inquiry whether or not charges for expulsion ought to be preferred against me, in 
what essential particular does this case differ from the one suggested ? 

The papers referred to you I have again examined with that earnest attention which a 
deep personal interest in the result of an inquiry must ever stimulate, and with the light 
reflected upon them by the communication which I had the honor to address to the Com¬ 
mittee on the Judiciary, under date of January 17th ultimo, I am unable to discover any¬ 
thing upon which a sufficient charge for expulsion can be predicated, or anything in the 
nature of evidence which an impartial tribunal could receive as sufficient to justify expul¬ 
sion from the Senate. Accepting all the statements contained in the letters, affidavits, 
&c., to be true, and there is merely attributed to me opinions which in the field of poli¬ 
tics might be regarded as heresies, anjl expressions charged upon me which might be 
characterized as idle, mischievous, and unwise. This suggestion, I need not remind the 
committee, is not made as palliative upon an admission by me of the truth of any part 
of these statements, but purely as argumentative and as properly within the scope of my 
purpose in addressing to them this communication. Guided by this purpose I have in 
these reflections excluded any denial or admission of .anything contained in the papers 
before the committee, my chief design being accomplished if I shall have succeeded in 
showing the utter impossibility of making, or even entering upon, a defense of any spe¬ 
cific charge or of proffering to rebut evidence when none is presented. 

I cannot conclude this brief statement without asserting, as in substance I did in my 
communication to the Judiciary Committee, that the declarations of my assailants are 
utterly false in many particulars which might be deemed important, especially the state¬ 
ments of Hull and Law; that the expressions attributed to me in others of the affidavits 
have been wickedly and maliciously perverted, aud that in every respect their declara¬ 
tions are unjust to my real sentiments and at variance with the whole tenor of my life. 

Should the committee, however, deem that the public safety and welfare require a 
formal inquest upon my loyalty and fidelity to the Constitution and Government of my 
country, I submit with profound respect that justice demands that the general allega- 


292 


SENATE ELECTION CASES. 


fcions of my assailants should be digested and presented in the form of charges and speci- 
fiations so that; I may have the ordinary and common rights accorded to the humblest 
citizen when arraigned for trial for the most trivial offense. 

I remain, sir, your obedient servant, 

BENJAMIN STARK. 

Hon. D. Clark, Chairman. 


After considering this statement, desirous to know if the Senator had any further 
communication for the committee or wished to lay before them any further testimony, 
the committee caused a note to be addressed to him, of which the following is a copy: 


United States Senate, 
Committee Room on Claims , April 14, 1862. 

Sir: At a meeting of the select committee, of which Hon. Mr. Clark is chairman, held 
at their room this day, your communication of the 10th instant addressed to the com¬ 
mittee through its chairman was read and considered, after which it was ordered that a 
communication be addressed to Mr. Stark requesting him to inform the committee at 
his earliest convenience whether he desires to submit any further testimony or to make 
any further statement to the committee in regard to the matters under investigation. 

The committee adjourned to Wednesday next at 11 a. m., by which time, if convenient 
to Mr. Stark, an answer is desired. 

By direction of the committee. 

N. C. TOWLE, Clerk. 

Hon. Benjamin Stark, 

Senator from Oregon. 

The committee met again on the 16th of April, when the following note was received 
from the Senator from Oregon: 

Senate Chamber, April 15, 1862. 

Sir: In answer to the note of your committee, dated yesterday, I have to state that in 
the absence of information from them as to the course which they deem it to be their 
duty to pursue I have nothing to add to what I have already communicated to them, nor 
do I propose in the present situation of the subject before them to present any testi¬ 
mony. 

With great respect, I am your obedient servant, 

BENJAMIN STARK. 


The committee then proceeded to consider the allegations and charges contained in the 
papers which had been submitted to them by the Senate, in connection with his answer 
and statement, and upon mature deliberation do find the following conclusions from 
the facts proved, viz: 

1st. That for many months prior to the 21st November, 1861, and up to that time, the 
said Stark was an ardent advocate of the cause of the rebellious States. 

2d. That after the formation of the constitution of the Confederate States he openly 
declared his admiration for it, and advocated the absorption of the loyal States of the 
Union into the Southern Confederacy under that constitution as the only means of 
peace, warmly avowing his sympathies with the South. 

3d. That the Senator from Oregon is disloyal to the Government of the United 
States. 

In coming to the foregoing conclusion, the committee cheerfully agree to the statement 
of the Senator in his answer, that, “asa Senator of the United States for the State of 
Oregon, I am entitled to, and I claim, every presumption of honor, integrity, loyalty, 
and patriotism that can be claimed by any other Senator, until such presumption is 
overborne by competent testimony;” and they cheerfully accord to him all the force 
and benefit of such a presumption; at the same time they are forced, with pain and 
reluctance, to find such presumption overborne by the array of witnesses which testify 
in regard to his conduct and declarations. Thirteen witnesses, who are not only unim¬ 
peachable, but are among the most respectable people of the city of Portland, where 
Mr. Stark resides, testify to the truth of the first of the foregoing propositions. They 
are William H. Rector, William C. Johnson, C. B. Conelon, A. B. Clough, Levi Ander¬ 
son, Colburn Barrell, Henry Failing, John S. White, W. H. Barnhart, S. P. Reed, H. 
W. Corbet, Simeon Francis, and Samuel E. Barr. They say “Mr. Stark, who is a resi¬ 
dent here, and personally known to us all, has been, for the past twelve months, an ardent 
advocate of the cause of the rebellious States . ” It may be objected that these witnesses do 
not make this statement under oath, and such is the fact; but they nevertheless, in 
the opinion of the committee, are entitled to belief. Their character for respectability, 


BENJAMIN STARK. 


293 


and the positions of some of them, entitle them to it. They gave their testimony 
months ago, on the 21st November, 1861. It seems to be fair and unprejudiced. They 
declare that a sense of duty induces them to make their statement. It has been a long 
time before the Senate; and, although in his communication to the Committee on the 
Judiciary, dated the 17th January, 1862, the Senator from Oregon declared “that in a 
iorum, competent to try and determine the issue, he should be able to prove the allega¬ 
tions against his loyalty to be utterly unfounded; and that, in many important par¬ 
ticulars, the declarations of his assailants were false, ” yet when an opportunity has 
been given to the Senator, upon his own motion, to send for persons and papers to 
disprove these allegations before a committee legally, if not otherwise, competent, the 
Senator does not desire these witnesses to be put under oath, nor to be re-examined, 
nor cross-examined; nor does he offer any rebutting testimony, or express a wish that 
any should be taken; nor does he, in his statement, tiled before the committee, so far as 
the committee remember, attempt to deny or impeach it—for while he says that the 
statements of Hull and Law are especially false, he makes no such allegation against 
these thirteen witnesses, or any one of them. He objects to no one of these witnesses 
because his statement was not made under oath. 

These witnesses, however, do not stand alone, nor does the finding of the committee 
on this proposition rest solely upon testimony given without the sanctity of an oath. 

Wesley C. Hull, upon oath, on the 18th November, 1861, says that, in the month of 
February previous, he heard Mr. Stark make use of the following language: “ If there is 
to be any war between the North and the South, all my property is for sale at fifty cents 
on the dollar, and I will go and help the South fight. The Palmetto flag is my flag; the 
Southern Confederacy is the only legal government in existence; that the United States 
Government is broken up; that Jeff. Davis is fighting in a good cause, and it will be im¬ 
possible to defeat him;” that afterwards upon another occasion he heard the said Stark 
use the following language: “The United States forces may fight the South from one 
end of their government to the other, but it will amount to nothing; they will close up 
behind them, and they cannot be conquered. The South is fighting in a good cause, for 
government and order, and they cannot be conquered.” 

Henry Law, also on oath, says that he is acquainted with Mr. Stark; that as early as 
December, 1860, he heard Mr. Stark say “that he did not go one cent on the Stars and 
Stripes; that the Palmetto flag was his flag, and if there was any issue between the 
North and South, he would sell all his property and go South.” 

A. M. Starr, also under oath, on the 20th November, 1861, declared that within the 
then last two weeks past he had heard Mr. Stark say that there was no United States 
Government; and also he heard Mr. Stark say, when the President first called for vol¬ 
unteers, “that the United States Government could not support an army of 30,000 in the 
field for six months; that the people of the loyal States would not back up the Administra¬ 
tion in trying to put down this rebellion. ’ ’ 

Thirty other witnesses, likewise under oath, say, on the 15th November, 1861, “that 
Mr. Stark is well known and generally reputed to be an open and avowed friend to the 
Southern Confederacy as against the Union. ’ ’ 

Samuel E. Barr, the magistrate before whom the last-named thirty witnesses made 
oath, says he is acquainted with each and every one of them, and that they are all men 
of truth and veracity, and further, that he subscribes to the facts which they stated. 

Here are forty-six witnesses, all testifying, materially and directly, to the same sub¬ 
stantive fact, to wit, that Mr. Stark has been the advocate of the Southern Confederacy; 
uncontradicted and unimpeached, except so far as the statement of Mr. Stark may go to 
that purpose; and the committee are unable to see how a larger number of witnesses 
could establish the truth of the proposition more firmly. They do not forget, however, 
that Mr. Stark says that the testimony of two of those witnesses, especially Hull and 
Law, is false, and he is entitled to any deduction that maybe made from their credibil¬ 
ity on that account, and to the fact that one of them is evidently mistaken in fixing the 
time of a particular conversation. They stand, however, with the other witnesses testi¬ 
fying to similar facts, and are uncontradicted by any ofeher person; and the committee 
can come to no other conclusion than that the facts thus stated by these witnesses are 
substantially and fully proved, even if the testimony of these two witnesses should be 
excluded. 

The second finding of the committee is proved partly by the declaration of most of 
these same witnesses, and partly by the distinct and unqualified declaration of the Sen¬ 
ator himself to the committee. The same thirteen witnesses above named, in their let¬ 
ter of the 21st November, 1861, say: “He (the Senator from Oregon) has openly avowed 
his sympathies for the South, declaring the Government disrupted, and openly express¬ 
ing his admiration lor the constitution of the Confederate States, and advocating the 
absorption of the loyal States of the Union into the Southern Confederacy under that 
constitution as the only means of restoring peace.” 

This, these witnesses say, he has done openly. The witnesses live in the same city 


294 


SENATE ELECTION CASES. 


with him, and there can be no question that they had the means of knowing the con¬ 
duct, opinions, and declarations of Mr. Stark on these matters. 

Mr. Hull testifies, on the 18th November, 1861, that soma time after the month of 
February, 1861, the precise time he does not mention, he heard Mr. Stark say: “The 
United States forces may fight the South from one end of their government to the other, 
but it will amount to nothing; they will close up behind them, and they cannot be 
conquered. The South is fighting in a good cause, for government and order, and they 
cannot be conquered. ’ ’ 

Henry Law, on the 20th November, 1861, says he has heard the said Stark say that 
he was a secessionist , and all his sympathies were for the South. 

John M. Breck, on the 21st of November, 1861, deposes that he and Mr. Stark live in 
the same place, and that he is personally acquainted with him; that just after the news 
of the reverses of the national armies at Bull Run, the affiant being at the time stand¬ 
ing at the entrance of the Bank Exchange in the city of Portland, did then and there 
distinctly hear and see the said Benjamin Stark drink a toast in company with a well- 
known secessionist, to the following effect, viz: “Beauregard,” or “Beau-Regard;” that 
he cannot certainly say that the said Stark alluded to the notorious rebel of that name, 
but such was his understanding, never having previously heard said Stark use the latter 
phrase. 

It is due to the Senator from Oregon to state that on referring to this testimony before 
the committee he declared that it was not true. He did not, however, say that the 
witness was not a truthful man, and worthy of belief under oath, but that he was mis¬ 
taken, or misunderstood what was said. That he might have drank the toast with some 
one, and have said, “My regards to you, sir,” and that expression been taken for what 
the witness testifies. But the committee deem it proper to remark, in j ustice to the 
witness and to truth, that the witness says “he did then and there distinctly hear and 
seethe said Stark, in company with a well-known secessionist, drink the toast,” &c. 
And here is presented a touchstone for ascertaining the truth of the witness’s statement. 
The witness says he drank this toast with a well-known secessionist—and with such a 
person, the committee submit, he would be likely to drink it if he drank it at all—and 
this person would know whether or not Mr. Breck is correct in his statement. Mr. 
Stark had it in his power, and at his option, without expense to him, to have summoned 
Breck before the committee, and inquired of him who the person was with whom he, 
Mr. Stark, drank the toast. He then could have summoned that person before the 
committee and ascertained the truth or falsity of Mr. Breck’s statement. Yet this he 
entirely failed or neglected to do, not because he was unaware of the importance of the 
testimony, for his attention was attracted to it, and he had taken pains himself to deny 
it. This testimony, therefore, is entitled to credibility, for the Senator had the means 
placed at his power of overthrowing it if incorrect, and failed to do so. If, then, this 
statement of Mr. Breck’s be true, how completely and to what extent does it show the 
sympathies of the Senator were with the rebels! How full of disloyalty must have 
been the heart of the Senator to the Union cause, thus, in company with a well-known 
secessionist, exultantly to drink a toast to the man who had planted the batteries 
against and breached the fortifications of his own Government—and such a Government! 
and who led a host which slaughtered his fellow-citizens, mutilated their dead bodies, 
and struck with traitorous swords at the heart of the country ? 

Thirty-one other witnesses, whose names the committee have, say that Mr. Stark is 
well known and reputed to be an open and avowed friend of the Southern Confederacy 
as against the Union. 

Peter Smith, on the 21st of November, 1861, deposes that Mr. Stark maintained be¬ 
fore him that any State had a right to secede from the rest of the Union, * * * 
and there was no constitutional right to coerce them into submission. 

On the 29th of January, 1862, Joseph Lane appeared before the Judiciary Committee 
of the Senate and testified that in a conversation with Bishop Scott he heard Mr. Stark 
say that his sympathies were with the South, and that they were right. He does not 
undertake to give the precise words of the conversation, which occurred in June, 1861. 
This witness Mr. Stark had the opportunity of cross-examining, and here again he had 
the opportunity, if Mr. Lane had been mistaken, to have corrected him. He might have 
called Bishop Scott before the committee and inquired if he had any such conversation 
with Mr. Stark or heard him make any such declarations, but he neglected entirely the 
opportunity of ascertaining the truth or of contradicting the testimony against him. 

The committee, however, did not rely entirely upon the testimony of witnesses for 
this finding. Mr. Stark in the presence of the committee, at one of their meetings, 
distinctly admitted and said that now he would be willing that the loyal States should 
be absorbed under the confederated constitution for the sake of peace. 

The committee were equally pained and surprised at such an expression, but could 
not fail to perceive how pungent a force it gave to much of the testimony against him; 
nor could they fail to come to the conclusion, however disagreeable. 


BENJAMIN STARK. 


295 


Thirdly. That the Senator from Oregon is disloyal to the Government of the United 
States. 

If the first two findings of the committee be correct and the testimony of the wit¬ 
nesses be received and credited, this third finding results almost as a matter of necessity. 
The Southern Confederacy is the work of rebellion; those who formed it are in arms 
against the Government of the United States. Its constitution is the product of trea¬ 
son. It is antagonistic, inconsistent, and hostile to the Government of the Union. If 
rebellion be successful and the Southern Confederacy be established, the Government 
of the United States must be overthrown and destroyed in nearly one-half its legitimate 
jurisdiction. Those, therefore, who advocate and support the course of the Southern 
Confederacy must be deemed opposed to the Government of the United States and dis¬ 
loyal thereto. The truly loyal citizen cannot desire and will not permit a rebellion in 
any of the States to succeed. Success to the one is the disruption, overthrow, and de¬ 
feat of the other; especially when the two sections are in arms will the true citizen give 
all his sympathies, his efforts, and his prayers to the maintenance of a Government 
which has diffused its blessings so bounteously and so widely as our own. There may 
be some excuse or palliation for those who, living in rebellious States, are swept away 
or absorbed by the terrible events there occurring; but there certainly can be none for 
one who, like the Senator from Oregon, remote from the scene of strife, voluntarily, 
among a people disposed to be loyal, thus sympathizes with and advocates the cause of 
rebellion. 

By disloyalty the committee mean the want of fidelity to his allegiance to the coun¬ 
try, and a disregard of the duty he owes her in this her hour of need and peril. 

Now, if it be loyal to advocate the cause of the seceded States, then the Senator from 
Oregon may be loyal. If it be loyal to sympathize with the rebels, to declare that 
they are right, and cannot be coerced; to desire for them peace, that they may perfect 
and cany out their schemes, then may the Senator from Oregon be loyal. If it be loyal 
not only to express an admiration for the constitution which the rebels have adopted to 
combine their strength, and make it effectual for the permanent disruption of the 
American Union and the permanent establishment of their own confederacy, but also 
to desire the absorption of the other States under it, thus, so to speak, nationalizing 
treason and making the Government succumb to treason, rather than treason to the 
Government, then may the Senator from Oregon be loyal. If it be loyal, when the 
President called for volunteers to save the capital from seizure and suppress rebellion, 
discouragingly to assert that the United States could not support an army of thirty 
thousand men, nor would the people sustain the Administration in trying to put down 
the rebellion; if it be loyal, when the fortifications of the country are battered down 
by the cannon of domestic foes, and our soldiers are defeated, put to rout and slain, and 
their dead bodies mutilated and buried, “to drink the health” of the traitor who led 
the host that perpetrated these enormities, then may the Senator from Oregon he loyal. 

But if, as the committee think, such conduct and declarations, at the time when the 
Government was accepting war as a dire necessity, and struggling for its very existence, 
could only proceed from a heart sadly and wickedly inclined to sympathize with trea¬ 
son, and show itself false to every duty and deaf to every call of patriotism, then is the 
finding of the committee fully warranted by the evidence. 

“No man can serve two masters.” Sympathy with rebellion must shut out patriot¬ 
ism from the heart. It can only exist where the other is not. No man can be true to 
his country who would do or say aught to aid a conspiracy so wicked, so malignant, so 
remorseless, and so traitorous as the present rebellion. 

The Senator from Oregon cannot be ignorant of the aim and design of the seceding 
States. They confederated together to break up the Federal Government. They 
openly proclaimed their determination; and if the Senator aided them by word or deed, 
he did it with a full knowledge that it was a blow at his country’s existence. 

The committee do not forget that it is asserted by the Senator that many of the 
papers referred to the committee are from his bitterest political enemies; and did the 
findings of the committee rest upon such papers alone, much consideration should be 
given tbis statement. 

But, turning from these papers of his political enemies to the Senator’s own letter to 
the Democratic mass convention held in Linn County, Oregon, June 5, 1861, the com¬ 
mittee find sad evidence of the same spirit animating the contents and dictating the 
expressions. “Civil war cannot avert disunion;” “Subjugation cannot prolong the 
Union; ” “To subjugate the South, were that even possible, would be the establishment 
of a military despotism,” are expressions found in this letter, and so marvelously like 
many of those attributed by the witnesses to the Senator that there is no difficulty in 
believing that they all belong to the same family and have a common parent. And they 
all are calculated to encourage the rebellion , and discourage the efforts to suppress it. Who¬ 
ever may read this letter, mutilated as it is, keeping in mind that it was written about 


296 


SENATE ELECTION CASES. 


the time he is said to have uttered the expressions attributed to him by the witnesses, 
will the more readily believe that the statement of the witnesses closely accords with the 
evidence furnished by the Senator himself. 

Indeed, this letter of June, 1861, and the statement of the Senator to the committee 
have added much to the weight of the other proof. The first tallies in sentiment and 
spirit with the witnesses; the other, though made when the Senator was under an accu¬ 
sation of disloyalty in papers referred to the committee upon his own motion, and 
though the committee by inviting that statement intended to give the Senator an 
opportunity to express his sympathy with his suffering country and menaced Govern¬ 
ment, and to remove so far as he could in that way any impeachment of his loyalty, is 
as barren of all such expressions as a bill of indictment. There is not in it a paragraph, 
nor a sentence, nor a line such as must spontaneously have burst out from a loyal heart 
under such an accusation. True, he speaks of being entitled to the presumptions of loy¬ 
alty, but there is no manly declaration of any determination to stand by the country in 
weal or woe or to give life or fortune or any assistance whatever to her requirements. 
In Oregon he was frequent and open in his expressions of sympathy for the rebels. He 
was, say the witnesses, the advocate of their cause. But here he is as silent as the grave. 
Though accused of disloyalty, though the country ‘ ‘ bleeds at every pore, ’ ’ though 
she imploringly raises her hands to him in his high place for aid and succor—he has never 
a word in his statement, nor an expression, sentence, or line from which a drop of sym¬ 
pathy can be wrung, unless it be in his assertion that ‘ ‘ in every respect their declarations 
are unjust to my real sentiments and at variance with the whole tenor of my life.” 

What those sentiments are he does not tell us, nor have the committtee any means of 
knowing by any evidence before them. If he had declared them to the committee, 
asserting his loyalty to the Government, the committee would have given him the full 
benefit of them; and perhaps they might have gone far to have removed the unfavorable 
conclusions to which the committee have come. But in the absence of any such decla¬ 
rations the committee could only pass on the evidence that was before them, giving 
him the full benefit of every presumption that can arise in his favor, and of every de¬ 
duction that should be made for a conflict of testimony. 

“He that is not for us is against us” are the words of inspiration, and never more 
applicable than on occasions like the present. It is quite true the Senator was under 
no obligation to use any such expressions in his statement, but the committee cannot 
but believe that had the feelings existed which would have prompted them they could 
not have been confined in a patriotic heart—they would have found expression. 

Upon taking his seat in the Senate, the Senator took the oath to support the Consti¬ 
tution of the United States; and it may be objected he would not have done so if not 
loyal to the Government. What were the reservations, what the limitations or inter¬ 
pretations, with which the Senator took that oath the committee do not inquire; for 
the Senator does not assert that his feelings and views have changed since the witnesses 
testified. He does not pretend that he is more loyal now than when he declared his 
sympathies were with the South, that they were right and could not be coerced. And 
the committee remember and know that in their present^, since the taking of that oath, 
and since the institution of this inquiry, the Senator boldly and without condition de¬ 
clared he would be willing the loyal States should be absorbed under the constitution 
of the Confederacy for the sake of peace—that is, that the Constitution of our fathers, 
which he had just sworn to support, should be cast out of its rightful inheritance by 
this bastard sprout of a gigantic rebellion, which should ‘ ‘ reign in its stead. ’ ’ 

Could the traitors desire more, to wit, peace and the adoption of their government? 

It is the aim of their efforts; their avowed intent and purpose. No man can yield it, 
unless compelled by dire necessity, and not be liable to an impeachment of his loyalty. 

AH true lovers of the country desire peace, but he who would seek it through its 
destruction and overthrow must be either a craven or disloyal citizen. 

The committee are, therefore, compelled to dismiss this consideration, and adopt the 
foregoing findings; adding that the appearance of the Senator before the committee, his 
singular declarations, statements, and conduct, have done much to strengthen the last 
conclusion of the committee. 

Itwould have been far pleasanter to them not to have done so, and they hoped, upon 
entering upon this investigation, the Senator would have made such proofs and state¬ 
ments as would have removed from him all suspicion of disloyalty. But he has failed 
to do so, and the duty was left to the committee to judge only upon what was before 
them. From that duty there could be no shrinking in a time like this; and the com¬ 
mittee have endeavored to discharge it thoroughly and fearlessly, and now submit their 
conclusions to the Senate. 

DAN’L CLARK. 

J. M. HOWARD. 
JOSEPH A. WRIGHT. 
JOHN SHERMAN. 


BENJAMIN STARK. 


297 


Concurring in the first two conclusions of the majority of the committee, I am yet con¬ 
strained, not without hesitation, to differ with them in their third and last conclusion. 
Distrusting all ex parte testimony, especially in regard to expressions uttered in the heat 
of high political excitement, seeing that the sentiments and opinions thus attributed to 
Mr. Stark are virtually denied and repudiated by him in his written statement before 
the committee; remembering that since it is alleged those conversations took place, and 
those expressions were uttered, Mr. Stark, in taking his seat as a Senator, has purged 
himself of these sinister allegations by taking the oath to support the Constitution of the 
United States, and especially fearing the danger of making mere difference of opinion, 
however wide and fundamental, a test of fidelity to the Government, I am not prepared 
to say that Mr. Stark is now disloyal. 

W. J. WILLEY. 

Wednesday, May 7, 1862. 

Mr. Sumner submitted the following resolution for consideration: 

“ Resolved, That Benjamin Stark, a Senator from Oregon, who has been found by a 
committee of this body to be disloyal to the Government of the United States, be, and 
the same is hereby, expelled from the Senate.” 

[The debate is found on page 1983 of the Congressional Globe, part 3, 2d sess. 37th 
Cong.] 

Friday, June 6, 1862. 

On motion by Mr. Sumner that the Senate proceed to the consideration of the reso¬ 
lution submitted by him for the expulsion of the Hon. Benjamin Stark from the Senate, 
it was determined in the negative—yeas 16, nays 21 

On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the 
Senators present, 

Those who voted in the affirmative are Messrs. Chandler, Clark, Foot, Grimes, Har¬ 
lan, Howe, Lane of Kansas, Morrill, Pomeroy, Sumner, Trumbull, Wade, Wilkinson, 
Wilmot, Wilson of Massachusetts, and Wright. 

Those who voted in the negative are Messrs. Anthony, Bayard, Browning, Carlile, 
Cowan, Davis, Dixon, Fessenden, Foster, Hale, Harris, Kennedy, Latham, McDougall, 
Nesmith, Powell, Rice, Saulsbury, Simmons, Ten Eyck, and Willey. 


298 


SENATE ELECTION CASES. 


[Thirty-eighth Congress and first session Thirty-ninth Congress. ] 

WILLIAM M. FISHBACK, ELISHA BAXTER, AND WILLIAM 

D. SXOW, 

of Arkansas. 

May 21, 1864, the credentials of Mr. Fishback, elected to fill the unexpired term, ending March 3, 
1865, of William K. Sebastian, expelled, were presented; and May 31 the credentials of Mr. Baxter, 
elected to fill the unexpired term, ending March 3,1867, of Charles B. Mitchell, expelled, were pre¬ 
sented. June 13, the oath of office not having been administered, their credentials were referred 
to the Committee on the Judiciary. At the same time a joint resolution for the recognition of the 
free State government of the State of Arkansas, which had been presented to the Senate June 10, 
was referred to the committee. June 27, the committee reported in regard to the election of the 
Senators substantially as follows: August 16, 1861, the President had declared the inhabitants of 
Arkansas, except those of such parts thereof as should maintain a loyal adhesion to the Union* or 
might be from time to time occupied and controlled by United States forces, to be in a state of in¬ 
surrection. At the date of the proclamation no part of the State was occupied and controlled by 
forces of the United States, nor did the inhabitants of any part of the State publicly maintain a 
loyal adhesion to the Union. Hence at that time a state of civil war existed between the inhabit¬ 
ants of Arkansas and the United States, and there was not then any organized authority competent 
to elect Senators of the United States. It is claimed, however, that since that period the greater 
portion of the State has been thus occupied, and that the inhabitants, loyal to the Union, have 
reorganized their State government, and have a right through their legislature to choose Senators. 
The question to be determined by the Senate is, Was the body electing Messrs. Fishback and 
Baxter the legislature of Arkansas? Less than one-fourth of the number of persons who voted for 
President in 1860 took part in the reorganization of the State government. This, however, would 
not be fatal to the reorganization if the State was free from military control, which is not the case. 
At the time the claimants were elected, and at this time, the State is occupied by hostile armies. 
While this state of things continues, and the right to exercise armed authority is claimed and ex¬ 
erted by the military power, it cannot be said that a civil government, set up and continued only 
by the sufferance of the military, is that republican form of government which the Constitution 
requires the United States to guarantee to every State in the Union. When the rebellion shall 
have been so far suppressed in the State that the loyal inhabitants thereof shall maintain a State 
government by the aid of and not in subordination to the military, they shall then and not before 
be entitled to representation in Congress. The committee recommend the adoption of the follow¬ 
ing resolution: “ Resolved , That William M. Fishback and Elisha Baxter are not*entitled to seats 
as Senators from the State of Arkansas.” This resolution passed the Senate June 29,1864, by a vote 
of 27 yeas to 6 nays. 

The joint resolution above referred to was reported adversely at the same time that the report on 
the credentials was presented. In the next session of Congress a similar joint resolution was sub¬ 
mitted and referred to the same committee, but was not reported. The proceedings of the Senate 
relating to these joint resolutions are not included in the extracts given below. 

March 7, 1865, the credentials of Mr. Snow, elected for the term succeeding that for which Mr. 
Fishback had been elected, were presented and referred to the Committee on the Judiciary. The 
committee recommended that the question be postponed to the next session, and until Congress 
should take action in regard to the recognition of the alleged existing State government in Ark¬ 
ansas. No action was taken. February 26, 1866, the credentials of Messrs. Baxter and Snow 
having been taken from the files of the Senate, a motion was made that they be referred again to 
the committee. It was ordered that they lie on the table. No further action was taken on the 
credentials. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journals, 38th Cong, and 1st sess. 39th Cong.; the report of the committee on 
on the credentials of Messrs. Fishback and Baxter from Senate Reports, 1st sess. 38th Cong. (No. 34); 
the report on the credentials of Mr. Snow from Senate Reports, 2d sess. 38th Cong. (No. 1, special 
session); also the proceedings of the Senate from the Journals relating to the payment of mileage 
to the claimants. 

Special references to the debates of each day are inserted below. 


[First session of the Thirty-eighth Congress.] 

CREDENTIALS OF MESSRS. FISHBACK AND BAXTER. 


Saturday, May 21, 1864. 

Mr. Lane, of Kansas, presented the credentials of the Hon. William M. Fishback, 
elected a Senator of the United States by the legislature of the State of Arkansas to fill 
the unexpired term of the Hon. William K. Sebastian, who was expelled by a resolution 
of the Senate of July 11, 1861; which were read. 

On motion by Mr. Conness that the credentials be referred to the Committee on the 

Judiciary, 

Ordered , That the further consideration thereof be postponed to to-morrow. 


FISHBACK, BAXTER, AND SNOW. 


299 


Wednesday, May 25, 1864. 

The Senate resumed the consideration of the motion submitted by Mr. Conness, the 
21st instant, to refer the credentials of the Hon. William M. Fishback to the Committee 
on the Judiciary; and 
On motion by. Mr. Fessenden, 

Ordered , That the further consideration thereof be postponed to to-morrow. 

[The debate is found on pages 2458, 2459 of the Congressional Globe, part 3,1st sess. 
38th Cong.] 


Tuesday, May 31, 1864. 

Mr. Foot presented the credentials of the Hon. Elisha Baxter, elected a Senator of the 
United States by the legislature of the State of Arkansas to fill the unexpired term of 
the Hon. Charles B. Mitchell, who was expelled by a resolution of the Senate July 11, 
1861. 

The credentials were read. 

Ordered, That they lie on the table. 

Monday, June 13, 1864. 

On motion by Mr. Lane, of Kansas, that the joint resolution, together with the cre¬ 
dentials of the Hon. William M. Fishback and the Hon. Elisha Baxter, Senators-elect 
from the State of Arkansas, be referred to the Committee on the Judiciary. 

******* 

On the question to agree to the motion of Mr. Lane, of Kansas, 

After debate, 

On motion by Mr. Wade that the joint resolution and the credentials lay on the table, 
it was determined in the negative—yeas 5, nays 32. 

On motion by Mr. Lane, of Kansas, the yeas and nays being desired by one-fifth of the 
Senators present, 

Those who voted in the affirmative are Messrs. Chandler, Howard, Richardson, Sum¬ 
ner, and Wade. 

Those who voted in the negative are Messrs. Anthony, Brown, Buckalew, Clark, Con¬ 
ness, Davis, Doolittle, Fessenden, Foot, Foster, Grimes, Harlan, Harris, Hendricks, 
Howe, Johnson, Lane of Indiana, Lane of Kansas, McDougall, Morgan, Morrill, Pomeroy, 
Powell, Ramsey, Saulsbury, Sherman, Sprague, Trumbull, Van Winkle, Wilkinson, 
Willey, and Wilson. 

On the question to agree to the motion of Mr. Lane, of Kansas, it was determined in 
the affirmative. 

So it was 

Ordered , That the joint resolution, with the credentials of the Hon. William M. Fish¬ 
back and the Hon. Elisha Baxter, be referred to the Committee on the Judiciary. 

* ****** 

Mr. Lane, of Kansas, presented a proclamation of Major-General Steele, commanding 
the Department of Arkansas, declaring that peace has been so far restored in Arkansas 
as to enable the people to institute proceedings for the restoration of the civil government, 
and issuing regulations for an election to be held for the adoption or rej ection of the State 
constitution adopted by the convention of citizens of that State; which was referred to 
the Committee an the Judiciary, and ordered to be printed.* 

[The debate is found on pages 2895-2907 of the Congressional Globe, part 3, 1st sess. 
38th Cong.] 

Tuesday, June 21, 1864. 

Mr. Lane, of Kansas, presented a letter f of William M. Fishback, addressed to him, 
giving a detailed account of his conduct during the present rebellion, and defending 
himself against charges of disloyalty; which were referred to the Committee on the Ju¬ 
diciary, and ordered to be printed. 

Monday, June 27, 1864. 

Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre¬ 
dentials of the Hon. William M. Fishback and the Hon. Elisha Baxter, elected Senators 
of the United States by the legislature of the State of Arkansas, submitted a report (No. 
94), accompanied by the following resolution: 

“ Resolved , That William M. Fishback and Elisha Baxter are not entitled to seats as 
Senators from the State of Arkansas.” 

On motion by Mr. Trumbull, 

Ordered , That the report be printed. 


♦This proclamation is found in Senate Miscellaneous, 1st sess. 88th Cong., No. 124. 
f This letter is found in Senate Miscellaneous, 1st sess. 38th Cong., No. 129. 



300 


SENATE ELECTION CASES. 


EEPOET OF COMMITTEE. 

[The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eych, Harris, 
Howard, Bayard, and Powell.] 

In the Senate of the United States. 

June 27, 1864.—Ordered to be printed. 

Mr. Trumbull submitted the following report: 

The Committee on the Judiciary, to whom were referred the credentials of William 
M. Fishback and Elisha Baxter, claiming seats from the State of Arkansas, report: 

That the credentials presented are in due form, purporting to be under the seal of the 
State of Arkansas, and to be signed by Isaac Murphy, governor thereof; and if the right 
to seats were to be determined by an inspection of the credentials Messrs. Fishback and 
Baxter would be entitled to be sworn as members of this body. It is, however, admitted 
by the persons claiming seats, and known to the country, that in the spring of 1861 the 
State of Arkansas, through its constituted authorities, undertook to secede from the 
Union, set up a government in hostility to the United States, and maintain the same by 
force of arms. Congress, in view of the condition of affairs in Arkansas and some other 
States similarly situated, passed an act July 13, 1861, authorizing the President, in 
case of an insurrection in any State against the laws of the United States, and when the 
insurgents claimed to act under the authority of the State, and such claim was not re¬ 
pudiated, nor the insurrection suppressed by the persons exercising the functions of 
government in such State, to declare the inhabitants of such State, or part thereof where 
such insurrection existed, to be in a state of insurrection against the United States; and 
that thereupon all commercial intercourse by and between the same and the citizens 
of the United States, except under license and upon certain conditions, should cease and 
be unlawful so long as such condition of hostility should continue. 

In pursuance of this act the President, August 16,1861, issued his proclamation declaring 
the inhabitants of the State of Arkansas, except the inhabitants of such parts thereof as 
should maintain a loyal adhesion to the Union and the Constitution, or might be from time 
to time occupied and controlled by forces of the United States engaged in the dispersion 
of said insurgents, to be in a state of insurrection against the United States, and that all 
commercial intercourse between them and citizens of other States was and would be un¬ 
lawful, except when carried on under special license, until such insurrection should 
cease. At the date of this proclamation no part of the State of Arkansas was occupied 
and controlled by the forces of the United States, nor did the inhabitants of any part of 
the State at that time publicly maintain a loyal adhesion to the Union and the Consti¬ 
tution. Hence, upon the issuing of said proclamation, a state of hostility or civil war 
existed between the inhabitants of the State of Arkansas and the United States, and 
there was not at that time any organized authority in Arkansas, loyal to the Constitu¬ 
tion, competent to choose or appoint Senators of the United States. It is claimed, how¬ 
ever, that since that period the State, or the greater portion of it, has been occupied 
and controlled by the forces of the United States engaged in the dispersion of the in¬ 
surgents, and that the inhabitants of said State, loyal to the Union and the Constitution, 
have reorganized their State government, and have the right, through the legislature 
they have instituted, to choose two Senators for said State. 

The Constitution declares that “the Senate of the United States shall be composed of 
two Senators from each State, chosen by the legislature thereof for six years,” and 
makes each House “the judge of the election, returns, and qualifications of its own 
members.” In the investigation of the claimants’ right to seats the first question to be 
determined is, Was the body by whom they were elected clothed with authority to elect 
Senators; in other words, was it, in a constitutional sense, “the legislature of Arkan¬ 
sas?” 

A question similar to this arose some years since between Bobbins and Potter, each 
claiming to have been elected Senator by the legislature of Rhode Island, though by 
different bodies. In that case the Senate was called upon to decide, and did decide, 
which of the two bodies, each claiming to be legitimate, was the legislature contem¬ 
plated by the Constitution. The Supreme Court of the United States, in the case of 
Luther vs. Borden, growing out of the political difficulties in Rhode Island in 1841 and 
1842, held that “when the Senators and Representatives of a State are admitted into 
the councils of the Union the authority of the government under which they are ap¬ 
pointed, as well as its republican character, is recognized by the proper constitutional 
authority. And its decision is binding on every other department of the government.” 

The claimants laid before the committee a statement of the circumstances attending 


FISHBACK, BAXTER, 4NI) SNOW. 


301 


the assembling of the body by which they were elected, in which, after detailing the 
condition of the State while under rebel control, and prior to September, 1863, they say: 

“Upon the advent of the Union army the rebels in the State, guerrillas and all, for the 
most part left with their armies, leaving about two-thirds of the State comparatively 
free from guerrilla depredation. 

“The Union men came flocking from the mountains, where they had lain for two years, 
f° the Federal standard, and nearly every man whom the medical examiners would re¬ 
ceive joined the Federal army. 

“ Those who were rejected (and their number was enormous, their constitutions hav- 
iugbeen broken by exposure and their hardships), and those whom circumstances pre¬ 
vented from joining the army, found themselves, so far as law was concerned, in a state 
of chaos. Many of them, living remote from military posts, had not even the protection 
of military law. 

“ Immediately they began to agitate the question of a reorganization of their State 
government. They first moved in primary meetings, and on the 30th of October, 1863, 
they held a mass meeting in the city of Fort Smith, in which some twenty counties are 
said to have been represented, and at which they called upon all the counties in the State 
to elect delegates (after having elected commissioners of election) to a State convention, 
to be held in the city of Little Rock on the 8th day of January, 1864, for the purpose of so 
amending the constitution as to abolish slavery Simultaneously with this meeting 
meetings were held in a number of other counties. In every single one (in ignorance of 
the action of others in many instances) thej^ declared for a convention and for the aboli¬ 
tion of slavery. 

11 Commissioners of election were first elected, and they held the elections for the 
delegates. 

“All this was prior to the President’s amnesty proclamation. 

“When the convention met forty-five delegates were present, representing about 
one-half of the State. (Several of the delegates failed to attend.) They repudiated 
the rebel debt, State and Confederate, abolished slavery, and submitted the constitution 
to the people for their ratification. They also provided for taking the vote for State and 
county officers and members of the legislature at the same time with the vote for the 
ratification of the constitution. 

“The result of those elections was 12,177 for the constitution and 226 against it, an 
election of State and county officers, an election of delegates to the lower house of Con¬ 
gress, and a representation in the State legislature from forty-six of the fifty-four coun¬ 
ties of the State. ’ ’ 

The number of persons in Arkansas who voted for President in 1860 was 54,043, less 
than one-fourth of whom, as appears from the statement of the claimants, took part in 
the reorganization of the State government. This, however, would not be fatal to the 
reorganization, if all who were loyal to the Union had an opportunity to participate, 
and the State was free from military control. Such, however, is understood not to have 
been the case. The President had not then, nor has he up to this time, recalled his 
proclamation, which declared the inhabitants of Arkansas in a state of insurrection 
against the United States, nor was there any evidence before the committee that said 
insurrection had ceased or been suppressed. At the time when the body which chose 
the claimants was elected, when it assembled, and at this time, the State of Arkansas 
is occupied by hostile armies, which exercise supreme authority within the districts 
subject to their control. While a portion of Arkansas is at this very time, as the com¬ 
mittee are informed, in the actual possession and subject to the control of the enemies 
of the United States, other parts of the State are only held in subordination to the laws 
of the Union by the strong arm of military power. While this state of things continues, 
and the right to exercise armed authority over a large part of the State is claimed and 
exerted by the military power, it cannot be said that a civil government, set up and 
continued only by the sufferance of the military, is that republican form of government 
which the Constitution requires the United States to guarantee to every State in the 
Union. * 

When the rebellion in Arkansas shall have been so far suppressed that the loyal in¬ 
habitants thereof shall be free to re-establish their State government upon a republican 
foundation, or to recognize the one already set up, and by the aid and not in subordi¬ 
nation to the military to maintain the same, they will then, and not before, in the opin¬ 
ion of your committee, be entitled to a representation in Congress, and to participate in 
the administration of the Federal Government. Believing that such a state of things 
did not at the time the claimants were elected, and does not now, exist in the State of 
Arkansas, the committee recommend for adoption the following resolution: 

Resolved , That William M. Fishback and Elisha Baxter are not entitled to seats as 
Senators ft om the State of Arkansas. 


302 


SENATE ELECTION CASES. 


Wednesday, June 29, 1864. 

On motion by Mr. Trumbull, the Senate proceeded to consider the resolution reported 
by the Committee on the Judiciary, declaring that William M. Fishback and Elisha 
Baxter are not entitled to seats as Senators, elect from the State of Arkansas. 

On motion by Mr. Wade to postpone the further consideration of the resolution to 
to-morrow, and that the Senate proceed to the consideration of the bill (H. R. 244) 
to guarantee to certain States whose governments have been usurped or overthrown a 
republican form of government, it was determined in the negative—yeas 5, nays 28. 

On motion by Mr. Wade, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Clark, Harlan, Lane of Kansas, Sher¬ 
man, and Wade. 

Those who voted in the negative are Messrs. Anthony, Brown, Buckalew, Carlile, 
Chandler, Conness, Cowan, Davis, Fessenden, Foot, Foster, Grimes, Harris, Hendricks, 
Hicks, Howe, Johnson, McDougall, Morgan, Powell, Ramsey, Riddle, Sumner, Ten 
Eyck, Trumbull, Yan Winkle, Willey, and Wilson. 

After debate, 

On the question to agree to the resolution, it was determined in the affirmative— 
yeas 27, nays 6. 

On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Anthony, Brown, Buckalew, Carlile, 
Chandler, Clark, Cowan, Davis, Fessenden, Foot, Foster, Hale, Harlan, Harris, Mc¬ 
Dougall, Morgan, Morrill, Powell, Ramsey, Riddle, Saulsbury, Sherman, Sumner, Ten 
Eyck, Trumbull, Wade, and Wilkinson. 

Those who voted in the negative are Messrs. Doolittle, Hicks, Howe, Lane of Kansas, 
Nesmith, and Pomeroy. 

So it was 

Resolved , That William M. Fishback and Elisha Baxter are not entitled to seats as 
Senators from the State of Arkansas. 

[The debate is found on pages 3360-3368 of the Congressional Globe, part 4, 1st sess. 
38th Cong.] 


[Special session of Senate, March, 1865.] 
CREDENTIALS OF MR. SNOW. 


Tuesday, March 7, 1865. 

Mr. Lane, of Kansas, presented the credentials of the Hon. William D. Snow, elected 
a Senator by the legislature of the State of Arkansas for the term of six years commencing 
on the 4th day of March, A. D. 1865. 

Objection to the reception of the credentials being made by Mr. Howard, 

The President pro tempore submitted the question to the decision of the Senate; and, 
on the question, Shall the credentials be received? 

After debate, and the consideration of executive business, the Senate adjourned. 

[The debate is found on pages 1427-1429 of the Congressional Globe, part 2, 2d sess. 
38th Cong.] 


Wednesday, March 8, 1865. 

The Senate resumed the consideration of the credentials of the Hon. William D. Snow, 
yesterday presented by Mr. Lane, of Kansas, the reception of which was objected to by 
Mr. Howard; and 
After debate, 

Mr. Howard having withdrawn his objection to their reception, 

On motion by Mr. Lane, of Kansas, 

Ordered, That the credentials be referred to the Committee on the Judiciary. 

[The debate is found on pages 1429-1432 of the Congressional Globe, part 2, 2d sess. 
38th Cong.] 


Thursday, March 9, 1865. 

Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre¬ 
dentials of William D. Snow, claiming to have been elected a Senator, commencing on 
the 4th day of March, 1865, submitted a report (No. 1), recommending that the further 
consideration of the subject be postponed to the next session of Congress. 

Ordered , That the report be printed. 


FISHBACK, BAXTER, AND SNOW. 


303 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Trumbull (chairman), Harris, Col lamer, Sherman, 
Johnson, Williams, and Hendricks.] 

In the Senate of the United States. 

March 9, 1865.—Ordered to he printed. 

Mr. Trumbull submitted the following report: 

The Committee on the Judiciary, to whom were referred the credentials of William 
D. Snow, claiming to have been elected a Senator from the State of Arkansas for six 
years from the 4th of March instant, report: 

That, in the year 1861, the constituted authorities of the State of Arkansas undertook 
to withdraw that State from the Union, and so far succeeded in the attempt as by force 
of arms to expel from the State for a time the authority of the United States, and set up 
a government in hostility thereto, and, in pursuance of an act of Congress, the inhabit¬ 
ants of said State have since been declared to be in a state of insurrection against the 
United States. The committee therefore recommend that the question of the admission 
of Mr. Snow to a seat be postponed to the next session of Congress, and until Congress 
shall take action in regard to the recognition of the alleged existing State government in 
Arkansas. 


[First session of the Thirty-ninth Congress.] 

CREDENTIALS OF MESSRS. BAXTER AND SNOW. 

Monday, February 26, 1866. 

A motion was made by Mr. Lane, of Kansas, that the credentials of Elisha Baxter and 
William D. Snow, as Senators-elect from the State of Arkansas, be taken from the files 
of the Senate, and that they be referred to the Committee on the Judiciary. 

A division of the question was called for by Mr. Clark; and, 

On the question to agree to the first branch of the motion, to wit, that the credentials 
of Elisha Baxter and William D. Snow as Senators-elect from the State of Arkansas be 
taken from the files of the Senate, it was determined in the affirmative; and, 

On the question to agree to the second branch of the motion, to wit, and that they be 
referred to the Committee on the Judiciary, 

On motion by Mr. Clark that the credentials lie on the table, it was determined in 
the affirmative—yeas 29, nays 17. 

On motion by Mr. Lane, of Kansas, the yeas and nays being desired by one-fifth of the 
Senators present, 

Those who voted in the affirmative are Messrs. Anthony, Brown, Chandler, Clark, 
Conness, Cragin, Creswell, Fessenden, Foster, Grimes, Harris, Henderson, Howard, 
Howe, Kirkwood, Lane of Indiana, Morrill, Nye, Poland, Pomeroy, Ramsey, Sherman, 
Sumner, Trumbull, Wade, Willey, Williams, Wilson, and Yates. 

Those who voted in the negative are Messrs. Buckalew, Cowan, Davis, Dixon, Doolittle, 
Guthrie, Hendricks, Johnson, Lane of Kansas, Morgan, Nesmith, Norton, Riddle, Sauls- 
bury, Stewart, Stockton, and Yan Winkle. 

So it was 

Ordered , That the credentials lie on the table. 

* ****** 

A motion was made by Mr. Lane, of Kansas, to admit the Senators-elect from the 
State of Arkansas to seats on the floor of the Senate. 

On motion by Mr. Wade that the motion of Mr. Lane, of Kansas, lie on the table, it 
was determined in the affirmative—yeas 27, nays 18. 

On motion by Mr. Lane, of Kansas, the yeas and nays being desired by one-fifth of the 
Senators present, 

Those who voted in the affirmative are Messrs. Anthony, Brown, Chandler, Clark, 
Conness, Cragin, Creswell, Fessenden, Foster, Grimes, Harris, Henderson, Howard, 
Howe, Kirkwood, Lane of Indiana, Morrill, Nye, Poland, Ramsey, Sherman, Sumner, 
Trumbull, Wade, Williams, Wilson, and Yates. 

Those who voted in the negative are Messrs. Buckalew, Cowan, Davis, Dixon, Doolittle, 
Guthrie, Hendricks, Johnson, Lane of Kansas, Morgan, Nesmith, Norton, Riddle, Sauls- 
bury, Stewart, Stockton, Yan Winkle, and Willey. 

So it was 

Ordered, That the motion lie on the table. 

[The debate is found on pages 1025-1027 of the Congressional Globe, part 2, 1st seas 
39th Cong. ] 


304 


SENATE ELECTION CASES. 


MILEAGE TO CLAIMANTS. 

[ First session of the Thirty-eighth Congress, j 

Wednesday, June 29, 1864. 

Mr. Trumbull asked, and by unanimous consent obtained, leave to submit the follow 
ing resolution: 

‘ ‘ Resolved That the Secretary be instructed to pay, out of the contingent fund of the 
Senate, the usual mileage of Senators to Elisha Baxter and William M. Fishback, respects 
ively, as claimants for seats in the Senate from Arkansas, at the first session of this 
Congress. ’ 7 

The said resolution was read the first and second times, by unanimous ^-^sent, and 
considered as in Committee of the Whole; and no amendment being made, it was reported 
to the Senate. 

Ordered , That it be engrossed and read a third t^ie. 

The said resolution was read the third time by unanimous consent. 

Resolved , That it pass 

[Second session of the Thirty-eighth Congress.] 

Friday, March 3, 1865. 

Mr. Lane, of Kansas, submitted the following resolution for consideration: 

“ Resolved , That the Secretary be instructed to pay out of the contingent fund of the 
Senate the usual mileage to Elisha Baxter and William M. Fishback, respectively, as 
claimants for seats in the Senate from Arkansas, and Charles Smith and R. King Cutler, 
respectively, as claimants for seats in the Senate from Louisiana, at the second session of 
this Congress.” 


[Special session of Senate, March, 1865.] 

Monday, March 6, 1865. 

Mr. Lane, of Kansas, submitted the following resolution for consideration (the same 
that was submitted March 3). 

Wednesday, March 8, 1865. 

On motion by Mr. Lane, of Kansas, the Senate proceeded to consider the resolution 
submitted by him on the 6th instant, to pay mileage to certain claimants to seats in the 
Senate from the States of Arkansas and Louisiana; and 

The resolution having been modified, on the motion of Mr. Lane, of Kansas, to read 
as follows: 

“ Resolved , That the Secretary be instructed to pay out of the contingent fund of the 
Senate the usual mileage to Elisha Baxter, William M. Fishback, and William D. Snow, 
respectively, as claimants for seats in the Senate from Arkansas, and Charles Smith and 
R. King Cutler, respectively, as claimants for seats in the Senate from Louisiana, at the 
second session of the last Congress,” 

Ordered , That the resolution be referred to the Committee to Audit and Control the 
Contingent Expenses of the Senate. 

Thursday, March 9, 1865. 

Mr. Morrill, from the Committee to Audit and Control the Contingent Expenses of 
the Senate, to whom was referred a resolution to pay to certain persons claiming seats 
in the Senate as Senators from Arkansas and Louisiana the mileage of Senators from those 
States, reported the resolution without amendment, and submitted a report thereon, ask¬ 
ing that the committee be discharged from its further consideration. 

REPORT OF COMMITTEE.* 

A 

[The committee consisted of Messrs. Morrill, Ramsey, and Henderson.] 

The Committee on the Contingent Expenses of the Senate, to whom was referred a 
resolution that the Secretary be instructed to pay out of the contingent fund of the Sen¬ 
ate the usual mileage to Elisha Baxter, William M. Fishback, and William D. Snow, 
respectively, as claimants for seats in the Senate from Arkansas, and Charles Smith and 
R. King Cutler, respectively, as claimants for seats in the Senate from Louisiana, at the 
second session of the last Congress, having attentively considered the same, report that 
the committee conceive their authority to be limited by law to the auditing of accounts 


* Taken from the Congressional Globe, part 2,2d sess. 38th Cong., page 1435. 





305 


FISHBACK, BAXTER, AND SNOW. 

for the ordinary contingent expenses of the Senate, and that mileage is payable only to 
Senators as members of Congress, and not as claimants for seats in the Senate, without 
an express order of the Senate. The terms of the resolution exclude the inference that 
the mileage therein contemplated is either ordinary contingent expenses of the Senate or 
mileage of Senators—members of Congress. Not regarding the resolution in the nature 
of an order of the Senate to the committee to audit the mileage of the claimants, and 
failing to perceive any authority of law for allowing it, they report the resolution back 
to the Senate, and respectfully ask to be discharged from its further consideration. 

Friday, J larch 10, 1865. 

On motion by Mr. Lane, of Kansas, the Senate proceeded to consider the resolution to 
pay out of the contingent fund of the Senate to certain persons claiming to be Senators 
duly elected from the States of Arkansas and Louisiana the mileage of Senators from 
those States; and, 

After debate, 

On motion by Mr. Wilson that the Senate proceed to the consideration of executive 
business, it was determined in the affirmative—yeas 24, nays 12. 

On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Anthony, Brown, Buckalew, Chandler, 
Conness, Cragin, Creswell, Davis, Foot, Grimes, Guthrie, Howard, Johnson, Lane of 
Indiana, Morgan, Norton, Nye, Riddle, Sprague, Stewart, Sumner, Wade, Wilson, and 
Wright. 

Those who voted in the negative are Messrs. Collamer, Dixon, Doolittle, Foster, Har¬ 
ris, Lane of Kansas, Pomeroy, Trumbull, Van Winkle, Willey, Williams, and Yates. 

So the motion was agreed to. 

[The debate is found on pages 1436-1440 of the Congressional Globe, part 2, 2d sess 
)8th Cong.] 


S. Doc. 11-20 



306 


SENATE ELECTION CASES. 


[Thirty-eighth Congress—Second session.] 

R. KING CUTLER AND CHARLES SMITH, and MICHAEL HAHN, 

of Louisiana. 

December 7,1864, the credentials of Mr. Cutler, elected to succeed Mr. Slidell, whose term had ex¬ 
pired March 3,1861, and the credentials of Mr. Smith, elected to fill the unexpired term, ending March 
3,1865, of Mr. Benjamin, retired, were presented. At the same time there was presented a memorial 
of citizens of Louisiana remonstrating against their admission to seats in the Senate. The credentials 
and memorial were referred to the Committee on the Judiciary. January 11,1865, the committee 
reported that the claimants were duly elected, and that, but for the fact that, in pursuance of an act 
of Congress passed July 13,1861, the inhabitants of the State had been declared in a state of insur¬ 
rection, which condition of things had not ceased at the time of the reorganization of the State gov¬ 
ernment and the election of the claimants, they would recommend their immediate admission to 
their seats; that the inhabitants of the State having been declared in a state of insurrection in pur¬ 
suance of a law passed by the two Houses of Congress, the committee deemed it improper for the 
Senate to admit to seats Senators from Louisiana till by some joint action of both Houses there 
should be some recognition of an existing State government; that they recommend the adopt on 
of an accompanying joint resolution that the United States recognize the State government referred 
to as the legitimate government of the State. This resolution was debated, but no action was 
taken on it, and the claimants were not admitted to seats. The proceedings of the Senate relating 
to the joint resolution are not included in the extracts given below. 

March 2,1865, the credentials of Mr Hahn, elected for the term succeeding that for which Mr. 
Smith had been elected, were presented. A motion was made that they be laid on the table. Ob¬ 
jection being made to their reception, the Senate voted to lay this motion on the table. March 9, 
the credentials were taken from the files and presented to the Senate, and it was ordered that the 
further consideration of them be postponed to the next session. No further action was taken on 
the credentials. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to the credentials of the claimants from Senate Journal, 2d sess. 38th Cong., and the report of 
the committee, with the exception of certain accompanying documents, from Senate Reports, 2d 
sess. 38th Cong., No. 117. 

There were no debates in regard to the credentials of the claimants. The debates on the adop¬ 
tion of the joint resolution reported by the committee are found on pages 1011,1061-1070,1091-1099, 
1101-1111 of the Congressional Globe, part 2, 38th Cong., 2d sess. 

Documents relating to the case are found in Senate Miscellaneous,2d sess. 38th Cong., Nos. 1,2, 
and 9. 

Mileage was not allowed to the claimants. For the proceedings of the Senate on a resolution to 
pay them mileage see latter part of preceding case of Fishback, Baxter, and Snow, page 246. 


CREDENTIALS OF MESSRS. CUTLER AND SMITH. 

Wednesday, December 7, 1864. 

The President pro tempore laid before the Senate a letter of the Hon. Michael Hahn, 
governor of the State of Louisiana, communicating the credentials of the Hon. Charles 
Smith and the Hon. R. King Cutler, Senators-elect from that State to the Congress of 
the United States, with copies of the proceedings of the general assembly of Louisiana in 
reference to their election; which was read. 

Ordered , That they lie on the table, and be printed. 

Mr. Morggn presented the credentials of the Hon. Charles Smith and the Hon. R. 
King Cutler, Senators-elect from the State of Louisiana to the Congress of the United 
States, with copies of the proceedings of the general assembly of Louisiana in reference 
to their election. 

Ordered , That they lie on the table. 

Mr. Wade presented a memorial of citizens of Louisiana remonstrating against the 
admission of Senators or Representatives from the pretended State of Louisiana into the 
Congress of the United States and the reception of any electoral vote of that State in 
counting the votes for President and Vice-President of the United States, and praying 
the passage of an act guaranteeing republican government in the insurrectionary States 

Ordered , That it lie on the table and be printed. 

Thursday, December 8, 1864. 

On motion by Mr. Morgan, 

Ordered, That the credentials of the Hon. Charles Smith and the Hon. R. King Cut¬ 
ler, Senators-elect from the State of Louisiana, and the proceedings of the legislature of 
that State in reference to their election, yesterday presented to the Senate, be referred 
to the Committee on the Judiciary. 

On motion by Mr. Wade, 

Ordered , That the memorial of citizens of Louisiana remonstrating against the ad- 


307 


CUTLER AND SMITH, AND HAHN. 

mission of Senators or Representatives from the State of Louisiana to seats in the Senate 
or House of Representatives, yesterday presented by him, be referred to the Committee 
on the Judiciary. 

Wednesday, January 11, 1865. 

Mr. Trumbull, from the Committee on the Judiciary, reported the following resolu¬ 
tion; which was considered by unanimous consent, and agreed to: 

“ Resolved , That there be printed for the use of the Committee on the Judiciary cer¬ 
tain evidence before them relating to the right to seats of Messrs. Cutler and Smith as 
Senators from the State of Louisiana.” 

Saturday, February 18, 1865. 

Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre¬ 
dentials of the Hon. Charles Smith and the Hon. R. King Cutler, elected Senators by 
the legislature of Louisiana, and a memorial of citizens of Louisiana remonstrating 
against the admission of Senators or Representatives from the State of Louisiana into 
the Congress of the United States, submitted a report (No. 127), accompanied by a joint 
resolution (S. 117) recognizing the government of the State of Louisiana. 

The resolution was read, and passed to a second reading. 

Ordered , That the report be printed. 

REPORT OF COMMITTEE.* 

[The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eyck, Harris, 
Foot, Powell, and Johnson.] 

In the Senate of the United States. 

February 18, 1865.—Ordered to be printed. 

Mr. Trumbull made the following report (to accompany joint resolution S. No. 117): 

The Committee on the Judiciary, to whom were referred the credentials of R. King 
Cutler and Charles Smith, claiming seats from the State of Louisiana, report: 

That in the early part of 1861 the constituted authorities of the State of Louisiana 
undertook to withdraw that State from the Union, and so far succeeded in the attempt 
as by force of arms to expel from the State for a time the authority of the United States, 
and set up a government in hostility thereto. 

Since that time the United States, as a necessity to the maintaining of its legitimate 
authority in Louisiana as one of the States of the Union, has been compelled to take 
possession thereof by its military forces, and, in the absence of any local organizations 
or civil magistrates loyal to the Union, temporarily to govern the same by military 
power. 

While a large portion of the State, embracing more than two-thirds of its population, 
was thus under the control of the military power, steps were taken with its sanction, 
and to some extent under its direction, for the reorganization of a State government 
loyal to the Government of the United States. The first action had looking to such re¬ 
organization was a registration of the loyal persons within the limits of military control 
entitled to vote under the constitution and laws of Louisiana at the beginning of the re¬ 
bellion. The lists thus made up contain the names of between fifteen and eighteen 
thousand voters, which is represented to be more than half the number of voters in the 
same parishes previous to the rebellion, and more than two-thirds of the voting popula¬ 
tion within the same localities at the time the registry was taken. The next step taken 
in the reorganization of the State government was the election of State officers on the 
22d of February, 1864, under the auspices of the military authority acting in conjunction 
with prominent and influential citizens. At this election 11,414 votes were polled, 808 
of which were cast by soldiers and sailors, citizens of Louisiana, who would not have 
been entitled to vote under the constitution of Louisiana as it existed prior to the re¬ 
bellion, for the sole reason that they were in the military service, but who possessed in 
other respects all the qualifications of voters required by that instrument. The balance, 
10,606, were legal voters under the constitution of the State prior to the rebellion. The 
third step in the reorganization of the State government was to call a convention for the 
amendment of the constitution of the State. Delegates to this convention were elected 
March 28, 1864, under the joint and harmonious direction of the military authorities, 
and the State officers who had been elected on the 22d February previous. In a paper 
submitted to the committtee by Major-General Banks he states that delegates were ap¬ 
portioned to every election district in the State, both within and beyond the lines, so 

* A referenoe to certain documents accompanying the report and not here printed is given in the 
head-note. 



308 


SENATE ELECTION CASES. 


that if beyond the lines of the army the people of the State had chosen to participate in 
that election, the delegates might have been received if they had shown themselves loyal 
to the Government. They were about 150 in number. All elections subsequent to that 
for delegates have been ordered and controlled by the representatives of the people. 

In the organization of the convention it was provided that a majority of the whole 
number apportioned to the State, if every district within and beyond the lines had been 
represented, should constitute a quorum for the transaction of business. Every vote in 
the convention, from a question of order to the ratification of the constitution, was con¬ 
ducted under this rule, and was approved by a majority of all the delegates apportioned 
to the State if every district had been represented. 

The delegates met in convention, in the city of New Orleans, on the 6th day of April, 
1864, remained in session till July 23, 1864, and adopted a constitution, republican in 
form and in entire harmony with the Constitution of the United States and the great 
principles of human liberty. 

This constitution was submitted, by the convention which adopted it, to the people 
for ratification on the first Monday of September, 1864, and adopted by a vote of 6,836 
for to 1,566 against it. 

At the same time the vote was taken on the adoption of the constitution a legislature 
was elected, representing all those parishes of the State reclaimed from insurgent control, 
and embracing about two-thirds of its population. This legislature assembled at New 
Orleans on the 3d day of October, 1864, and proceeded to put in operation a State gov¬ 
ernment by providing for levying and collecting taxes, the establishment of tribunals for 
the administration of justice, the adoption of a system of education, and such other 
measures as were necessary to the re-establishment of a State government in harmony 
with the Constitution and laws of the United States. The State government thus inaugu¬ 
rated has been in succcessful operation since the period of its establishment, and your 
committee are assured that if no exterior hostile force is permitted to enter the State, the 
local State government is fully equal to the maintaining of peace and tranquillity through¬ 
out the State in subordination to the Constitution and laws of the United States. 

The manner in which the new State government was inaugurated is not wholly free 
from objection. The local State authorities having rebelled against the Government, 
and there being no State or local officers in existence loyal to its authority, in taking the 
initiatory steps for a reorganization some irregularities were unavoidable, and the num¬ 
ber of voters participating in this reorganization is less than would have been desirable. 
Yet, when we take into consideration the large number of voters who had left the State 
in consequence of the rebellion, who had fallen in battle, or were absent at the time of 
the election, both in the Union and rebel armies, and the difficulties attending the ob¬ 
taining of a full vote from those remaining, in consequence of the unsettled condition of 
affairs in the State, and the further fact that the adoption of the amended constitu¬ 
tion was not seriously opposed, and therefore the question of its ratification not calculated 
to call out a full vote, the number of votes cast is perhaps as large as could have been 
expected, and the State government which has been reorganized, as your committee be¬ 
lieve, fairly represents a majority of the loyal voters of the State. 

Appended hereto is a copy of the various orders and proclamations issued in regard to 
the election of State officers, delegates to the constitutional convention, and members of 
the legislature, and also a copy of election laws and instructions relative to the duties of 
commissioners of elections, issued for the guidance of officers in conducting said election. 

Messrs. Cutler and Smith, the claimants for seats, were duly elected Senators by the 
legislature which convened on the 3d day of October, 1864, and but for the fact that, in 
pursuance of an act of Congress passed on the 13th day of July, 1861, the inhabitants of 
the State of Louisiana were declared to be in a state of insurrection against the United 
States and all commercial intercourse between them and the citizens of other States de¬ 
clared to be unlawful, which condition of things had not ceased at the time of the reor¬ 
ganization of the State government and the election of Messrs. Cutler and Smith, your 
committee would recommend their immediate admission to seats. 

The persons in possession of the local authorities of Louisiana having rebelled against 
the authority of the United States and her inhabitants having been declared to be in a 
state of insurrection in pursuance of a law passed by the two Houses of Congress, your 
committee deem it improper for this body to admit to seats Senators from Louisiana 
till by some joint action of both Houses there shall be some recognition of an existing 
State government acting in harmony with the Government of the United States and 
recognizing its authority. 

Your committee therefore recommend for adoption, before tak !ng definite action upon 
the right of the claimants to seats, the accompanying joint resolution: 

Resolved by the Senate and House of Representatives of the United States of America in 
Congress assembled, That the United States do hereby recognize the government of the 
State of Louisiana inaugurated under and by the convention which assembled on the 


309 


CUTLER AND SMITH, AND HAHN. 

6th day of April, A. D. 1864, at the city of New Orleans, as the legitimate government 
of said State, entitled to the guarantee and all other rights of a State government under 
the Constitution of the United States. 

CREDENTIALS OF MR. HAHN. 

Thursday, March 2, 1865. 

Mr. Doolittle presented a certified copy of the proceedings of the legislature of the 
State of Louisiana, showing that the Hon. Michael Hahn was elected a Senator by the 
legislature of that State for the term of six years commencing on the 4th day of March, 
A. D. 1865; which were read. 

Objection being made by Mr. Davis to the reception of the paper, 

On motion by Mr. Trumbull, 

Ordered , That it lie on the table. 

[The debate is found on page 1278 of the Congressional Globe, part 2, 2d sess. 38th 
Cong.] 


[Special session of Senate, March, 1865. ] 

Thursday, March 9, 1865. 

On motion by Mr. Doolittle, the credentials of the Hon. Michael Hahn, elected a Sen¬ 
ator by the legislature of Louisiana, were taken from the files and presented to the 
Senate. 

On motion by Mr. Doolittle, 

Ordered , That the further consideration thereof be postponed to the next session of 
Congress. 


310 


SENATE ELECTION CASES. 


[Second session Thirty-eighth Congress, and special session of Senate, March, 1865.] 

JOSEPH SEGAR and JOHN 0. UNDERWOOD, 

of Virginia . 


February 17, 1865, the credentials of Mr. Segar, elected to fill the unexpired terra ending March 3, 
1869, of Lemuel J. Bowden, who died January 2, 1864, were presented. A motion was made that 
they be referred to the Committee on the Judiciary. After debate it was ordered that they lie on 
the table. It appears from the debate that the qiiestion raised was whether the body electing Mr. 
Segar was the legislature of Virginia, a great part of that State being in rebellion. Extracts from 
remarks given below show the grounds upon which certain Senators proceeded. 

March 9, 1865, the credentials of Mr. Underwood, elected for the term beginning March 4, 1865, wore 
presented. The credentials of Mr. Segar were taken from the files and presented to the Senate. It 
was ordered that the further consideration of the credentials of both be postponed to the next session 
of Congress. Mr. Segar and Mr. Underwood were elected at the same time and by the same legisla¬ 
ture. No further action was taken on the credentials. 

February 18, 1879, a resolution passed the Senate that there be paid to Mr. Segar out of the contin¬ 
gent fund of the Senate the sum of $5,000 in full compensation for his expenses in prosecuting his 
claim. Petitions for like compensation were filed by the representatives of Mr. Underwood, deceased. 
Favorable reports were made by the Committee on Privileges and Elections in 1882 and 1884. April 
21, 1886, a resolution was passed allowing Mr. Underwood’s representatives $5,000 in full compensa¬ 
tion of all time and expenses, to be paid out of the contingent fund. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journal, 2d sess. 38th Cong., and extracts from remarks of several Senators. A 
transcript of the proceedings of the Senate in regard to the allowance of compensation, from Senate 
Journals, 43d-49th Cong., with the reports thereon, are also given. 

Special references to the debates of each day are inserted below. 


Friday, February 17, 1865. 

Mr. Willey presented the credentials of the Hon. Joseph Segar, elected a Senator 
by the legislature of the State of Virginia to fill the vacancy occasioned by the death 
of the Hon. Lemuel J. Bowden; which were read. 

A motion was made by Mr. Sumner that the credentials be referred to the Com¬ 
mittee on the Judiciary. 

On motion by Mr. Howard to amend the motion of Mr. Sumner by adding thereto 
the words “and that the committee be instructed to inquire and report upon the 
election, returns, and qualifications of the claimant,” 

After debate, 

On motion by Mr. Sherman that the credentials lie on the table, 

Mr. McDougall raised a question of order, to wit: That the subject under consid¬ 
eration being a question of privilege, affecting the organization of the Senate, the 
motion to lie on the table, which precluded debate, was not in order. 

The President pro tempore decided that a question of privilege, when brought be¬ 
fore the Senate for its action, was subject, like other questions, to such motion as 
any Senator may think proper to submit; and decided that the motion of Mr. Sher¬ 
man was in order. 

From this decision Mr. McDougall appealed; and the question being submitted to 
the Senate, Shall the decision of the Chair stand as the judgment of the Senate? it 
was determined in the affirmative. 

So the decision of the Chair was sustained; and, 

On the question to agree to the motion that the credentials lie on the table, it 
was determined in the affirmative—yeas 29, nays 13. 

On motion by Mr. McDougall, the yeas and nays being desired by one-fifth of the 
Senators present, 

Those who voted in the affirmative are Messrs. Anthony, Brown, Buckalew, 
Chandler, Clark, Collamer, Conness, Cowan, Davis, Doolittle, Farwell, Foster, 
Hale, Harlan, Howard, Howe, Morgan, Morrill, Nye, Powell, Ramsey, Sherman, 
Sprague, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, and Wilson. 

Those who voted in the negative are Messrs. Dixon, Hendricks, Johnson, Lane of 
Indiana, Lane of Kansas, McDougall, Nesmith, Pomeroy, Richardson, Saulsburv 
Van Winkle, Willey, and Wright. 

So it was 

Ordered, That the credentials lie on the table. 

[The debate is found on pages 845-849 of the Congressional Globe, part 2, 2d sees 
88th Cong.] 


SEGAR AND UNDERWOOD. 


311 


[Special session of Senate, March, 1865.] 

Thursday, March 9, 1865. 

Mr. Doolittle presented the credentials of the Hon. John C. Underwood, elected a Sen¬ 
ator by the legislature of Virginia for the term of six years commencing on the 4th day 
of March, A. D. 1865; which were read. 

On motion by Mr. Sumner, 

Ordered , That the further consideration of the credentials be postponed to the next 
session of Congress. 

******* 

On motion by Mr. Willey, the credentials of the Hon. Joseph Segar, elected a Senator 
by the legislature of Virginia, were taken from the files and presented to the Senate; and, 
On motion by Mr. Willey, 

Ordered , That the further consideration thereof be postponed to the next session of 
Congress. 

[The debate is found on pages 1433,1434 of the Congressional Globe, part 2, 2d sess. 
38th Cong.] 

[ Remarks of Mr. Sumner, of Massachusetts, in favor of reference to a committee of Mr. Segar’s cre¬ 
dentials. Delivered February 17,1865, and taken lrom page 846 of the Congressional Globe, part 
2, 2d sess.38ih Cong.] 

“ I regret that a question of this magnitude has been precipitated upon the Senate at 
this late period of the session when there is so much public business which has not yet 
received the attention of either House of Congress. The Senator from Michigan does 
not exaggerate its magnitude. Sir, it is much to be a Senator of the United States, 
with all the powers and privileges pertaining to that office—powers and privileges, legis¬ 
lative, diplomatic, and executive; and the question now is whether all these extraordi¬ 
nary powers and privileges shall be recognized in a gentleman whose certificate has been 
sent to the Chair. I thought it my duty, on hearing that certificate read as I entered 
the Chamber, to move at once its reference to the Committee on the Judiciary. I am 
astonished that there can be any hesitation in making that reference. Sir, Senators who 
hesitate show an insensibility to the character of the question. Is the Senate ready to 
act blindfolded or with the eyes open ? I insist that on a question of this magnitude 
the Senate shall act with the eyes open, wide open; and I know no other way in which 
they can be brought to act so except through the intervention of a responsible committee 
of this body. Therefore, sir, I proposed that the credentials should be referred to that com¬ 
mittee. It will be the duty of the committee, as my friend from Michigan has suggested, 
to consider in the first place whether a State in armed rebellion like Virginia can have 
Senators on this floor. That is a great question, constitutional, political, practical. II 
will be their duty, then, to consider in the next place whether the gentleman whose cre¬ 
dentials have been presented has been chosen legally under the Constitution of the 
United States by any State. Now, sir, I do not intend to prejudge either of these ques¬ 
tions. I simply open them now for the consideration of the Senate. 

“1 say, sir, I do not mean to prejudge these questions; but I do insist that a measure 
of this importance shall not be acted on without due consideration, and in absolute in¬ 
difference to those facts which now stare us in the face, glaring upon us every day in 
every newspaper that we read. Sir, you cannot be insensible to facts. It is in vain 
that Senators say that Virginia, now in war against the Union, is entitled to repre¬ 
sentation on this floor, when you have before you the inexorable fact that the greater 
part of that State is at this moment in possession of an armed rebellion, and when you 
have before you the other fact filling almost all the newspapers of the land that the body 
of men who have undertaken to send a Senator to Congress are little more than the com¬ 
mon council of Alexandria; and you have the question distinctly presented to you 
whether a representative of the common council of Alexandria is to enter this Chamber 
and share the same powers and privileges of my honorable friend near me, the Senator 
from New York [Mr. Morgan], or my friend farther from me, the Senator from Penn¬ 
sylvania [Mr. Cowan]. I merely open these points without now undertaking to decide 
them, but simply as an unanswerable argument in favor of the reference to the commit¬ 
tee.” 

[Extract from remarks of Mr. Willey, of West Virginia, in favor of allowing Mr. Segar to be at once 
admitted to his seat. Delivered February 17,1865, and taken from page 848 of the Congressional 
Globe, part 2, 2d sess. 38th Cong.] 

‘ ‘ But the honorable Senator and those who think with him have taken the ground 
that Virginia is not entitled to representation on this floor. Why, sir, has not the Senate 
recognized the fact that she is entitled to such representation during the whole of the 
session and during the whole of the last session of Congress ? Has there not been a Sen- 


312 


SENATE ELECTION CASES. 


ator representing the State of Virginia on this floor, participating in the proceedings o/ 
this body, recording his yeas and nays, and to the extent of his vote controlling the legis¬ 
lation of Congress? Has he not been recognized without a murmur and without a word 
of objection ? So far as that fact is concerned I hold that the Senate is barred by its 
own action, that it should have excluded the honorable gentleman who represents Vir¬ 
ginia on the floor already if Virginia be not entitled as a State to representation on this 
floor. I put it to Senators to say, if Mr. Bowden had been living to-day, whether he 
would not have been allowed to occupy his seat without let or hindrance, without any 
objection, the same as his honorable colleague has been allowed to occupy his seat with¬ 
out objection. I say, therefore, the action of the Senate itself has recognized the fact 
not only that Virginia is entitled to representation on this floor, but that she has been and 
is represented on this floor; and so long as the honorable Senator who represents Vir¬ 
ginia here is allowed to retain his seat it strikes me that it is not competent for the 
Senate to say that Virginia is not entitled to representation on this floor. 

‘ ‘ I fully concur in all that has been said in regard to the importance of this question. 
I know very well, for I have been enabled to see it and to feel it personally, with what 
eager desire the loyal population of Virginia are looking to the action of Congress in this 
respect to sustain the legislature at Alexandria. I know how all the northwest portion 
of Virginia, now composing the State of West Virginia, was brought in around the loyal 
legislature of Wheeling, forming a nucleus, until the whole State was brought under 
the flag of the Union and under the jurisdiction of the Federal Constitution; and I know 
that such will be the result in Virginia if its loyal legislature is sustained. County 
after county—such is my information from beyond the lines to-day, having letters in 
abundance to that effect—eagerly desire for the time to come when they shall be relieved 
of the power of the rebellion, that they may reorganize the old government of Virginia 
around the legislature of Alexandria. 

“But, sir, it is a fact, not only that the Senate of the United States has recognized the 
existence of Virginia as a State, and her right to be represented on this floor, but the 
executive branch of the Government has done so, I imagine; for I saw it stated in the 
papers the other day that the Secretary of State had transmitted the constitutional 
amendment for the abolition of slavery to the executive of Virginia, and through him it 
was sent to the legislature to be acted upon, and that legislature had acted upon it 
and ratified the amendment. We shall place ourselves in a singular position if we reject 
a gentleman who comes here accredited with a certificate of election in due form and 
repulse him from our doors and refuse to allow him a seat on the floor when we have 
another member representing the same State upon the floor and when the executive 
branch of the Government recognizes the Virginia legislature at Alexandria as the true 
legislature, and Governor Peirpoint as the true and legitimate governor of Virginia. I 
trust that this matter will not be referred at all, but that we will hold out the induce¬ 
ment to the loyal people of Virginia to rally around the loyal legislature at Alexan¬ 
dria. ’ ’ 


[Remarks of Mr. Sherman, of Ohio, accompanying his motion that the credentials of Mr. Segar be 
laid on the table. Delivered February 17,1865, and taken from pages 848,849 of the Congressional 
Globe, part 2, 2d sess.38th Cong.] 

“ I wish to submit to the Senate one or two considerations on this subject, and I shall 
close my remarks by submitting a motion that is not debatable. 

‘ ‘ The credentials presented to us purport to show that this gentleman was elected a 
member of this body on the 8th day of December last, and they bear date on the 12th day 
of December last. They have been held by him for more than sixty days. Every intelli¬ 
gent man must have known that the presentation of these credentials would give rise to 
debate, would involve grave political questions about which there are radical differences 
of opinion in this body and throughout the country. The condition of the State of Vir¬ 
ginia, the condition of the rebel States, the effect of the rebellion, all these matters are 
involved in the question now presented to the Senate. This gentleman holding these 
papers might at any moment have presented them as a privileged question, and have 
stopped all the businesss of this body until they were disposed of, either referred or acted 
upon. Now, I ask the Senator whether it is reasonable for us at this period of the ses¬ 
sion to stop our deliberations, when all the important bills of the session remain unacted 
upon, for the purpose of considering thisquestion ? When this gentleman has had these 
papers in his possession for more than sixty days, when he had the right at any day to 
present them and call on us to decide the question raised by them, is it reasonable, I 
ask, to present them at this period of the session, and ask us to postpone all the impor¬ 
tant business of the session for the purpose of considering them ? It seems to me it is 
not; and, therefore, without going into the merits of the proposition, which is a very 
grave and difficult one, upon which I myself have not made up my opinion, allhough I 


SEGAR AND UNDERWOOD. 313 

have read and thought a great deal about it, I submit whether, under the circumstances, 
the best disposition is not to leave the question to be settled by the next Congress. 

“ The State of Virginia is now represented by one Senator in this body. The State of 
West Virginia is ably represented by two Senators. The Senator-elect, or theperson 
who claims to act as the Senator-elect from Virginia, has slept upon his rights for sixty, 
ay, seventy days. It seems to me, therefore, that for the short period of the term for 
which he was elected, only fifteen days, it is scarcely worth while for us to delay the 
ordinary business of the country and stop and deliberate upon his right to a seat which 
at any rate will expire on the 4th day of March next. The question when presented to the 
next Congress will be one that we shall have ample time to decide. It will be presented 
at the threshold on the 4th of March next. No doubt then a gentleman claiming to be 
a Senator from the State of Virginia will present his credentials. Then we can take up 
the matter and determine it. We can take time, we can deliberate, we can get full in¬ 
formation on the subject; and we can dispose of these grave political questions without 
interfering with the public business. Now we cannot. Under the circumstances, there¬ 
fore, I feel it my duty to submit a motion that the credentials do lie upon the table.” 

[Extract from remarks of Mr. Doolittle, of Wisconsin, maintaining that the case of Virginia stood 
on different grounds from that of Arkansas, in regard to which the Committee on the Judiciary 
had recommended a postponement of the question until the next session of Congress. Delivered 
March 9,1865, and taken from the Congressional Globe, part 2, 2d sess.38th Cong.] 

“In relation to the State of Virginia 1 think every Senator can easily see that it 
stands on very different ground perhaps from any of the other States from which Sena¬ 
tors have appeared with their credentials. The State of Virginia, as such, has been recog¬ 
nized by this Government in, every form, by the executive department, and by Congress. 
By legislative action we have recognized the government of Virginia as the legitimate 
government of that State, for it was by the consent of the legislature of that State that 
we acted when we agreed to a division of the State of Virginia into West Virginia and 
East Virginia. Whether the action of Congress was wise or unwise in consenting to the 
erection of the State of West Virginia is not a question which is now to be discussed. The 
Government has in every form recognized that State. We had until the 4th day of March 
a Senator from that State, after the division of the State of Virginia. When West Virginia 
was represented by two Senators on this floor we had two Senators still from old Vir¬ 
ginia, one of whom died during the recess of Congress, Hon. Mr. Bowden, and the other 
of whom remained until the 4th day of March last. So that by the action of this body 
we have recognized the existence of the State of Virginia—I mean the old State of Vir¬ 
ginia independent of the State of West Virginia. 

* * * * * * * 

‘ ‘ I will finish in a word all that I desire to say. The Presidential proclamation declaring 
the population of certain States to be in insurrection excepted from its operation the coun¬ 
ties of Alexandria city and county, Berkeley, Accomac, Northampton, Princess Anne, Nor¬ 
folk, Norfolk city, Portsmouth city, and Elizabeth city and county, in the State of Virginia, 
containing a population of over 175,000; and these counties are now represented in the 
legislature at Alexandria. 

“ But, Mr. President, I see that the Senate do not desire to take up and dispose of 
any of these questions in relation to the admission of Senators from any of these States 
at the present session; and my purpose in rising now is not to press any such action on 
the Senate, but simply to state in answer to what fell from some Senators that this case 
of the State of Virginia may in some respects stand on a different footing in relation to 
the proclamation declaring States in insurrection, from the other States, because of the 
action of Congress already in recognizing the government which is denominated the 
Peirpoint government as being the true government of the State of Virginia, with which 
we have dealt, upon whose action we have suffered the erection of a new State within 
the limits of Virginia, so that we may be already committed on that subject in a differ¬ 
ent form from what we are in relation to these other States. I agree with the Senator 
from Missouri in relation to all of them, that it is our duty at the earliest practicable 
moment to take these free States by the hand and give them the moral support, of our 
recognition. ’ ’ 


COMPENSATION OF ME. SEGAE. 

[First session of the Forty-third Congress. ] 

Monday, December 8, 1873. 

Mr. Lewis presented the petition of Joseph Segar, praying to be allowed pay as a 
Senator from Virginia in 1863; which was referred to the Committee on Privileges and 
Elections. 


314 


SENATE ELECTION CASES. 


Thursday, February 5, 1874. 

Mr. Lewis presented the petition of Joseph Segar, praying compensation as a Senatoi 
from Virginia in 1863 and 1864; which was referred to the Committee on Privileges and 
Elections. 

[The debate is found on page 1213 of the Congressional Record, vol. ii, part 2. J 
[First session of the Forty-fourth Congress.] 

Wednesday, February 15, 1876. 

Mr. Withers presented the petition of Joseph Segar, praying to be allowed pay as a 
Senator from Virginia in 1863; which was referred to the Committee on Claims. 

Monday, February 21, 1876. 

On motion by Mr. Wright, 

Ordered , That the Committee on Claims be discharged from the further consideration of 
the petition of Joseph Segar, and that it be referred to the Committee on Privileges and 
Elections. 

[Second session of the Forty-fourth Congress. ] 

Saturday, March 3, 1877. 

Mr. Wadleigh submitted the following resolution for consideration: 

“ Resolved , That the Secretary of the Senate be, and is hereby, authorized and directed 
to pay to Joseph Segar compensation and mileage as a Senator of the United States from 
the date of the death of Hon. Lemuel J. Bowden to the end of the term for which said 
Segar was elected. ’ ’ 

[The debate* is found on pages 2195, 2196 of the Congressional Record, vol. v, part 3.] 

[Second session of the Forty-fifth Congress.] 

Wednesday, December 12,1877. 

On motion by Mr. Withers, 

Ordered, That the papers of Joseph Segar, on the files of the Senate, be referred to 
the Committee on Privileges and Elections. 

Thursday, June 13, 1878. 

Mr. Hoar, from the Committee on Privileges and Elections, to whom was referred the 
memorial of Joseph Segar, submitted a report (No. 509) thereon, accompanied by the 
following resolution. (Resolution given at end of report.) 

REPORT OF COMMITTEE.! 

[The committee consisted of Messrs. Wadleigh (chairman), Mitchell, Cameron of 
Wisconsin, McMillan, Hoar, Ingalls, Saulsbury, Merrimon, and Hill.] 

In the Senate of the United States. 

June 13, 1878.—Ordered to be printed. 

Mr. Hoar, from the Committee on Privileges and Elections, submitted the following 
report: 

The Committee on Privileges and Elections, to whom was referred the memorial of 
Joseph Segar, asking for payment of his salary and mileage as Senator from December 8, 
A. D. 1864, to March 4, 1869, have considered the same, and respectfully report: 

If the petitioner had been admitted to the seat which he claimed, his salary and mile¬ 
age would have amounted to more than $21,000. He was not admitted, and having 
never performed the duties of a Senator, under the most recent precedent he is not en¬ 
titled to compensation and mileage as such. By the same precedent, if he prosecuted in 
good faith and on reasonable grounds a claim for such seat, he should be allowed a mod¬ 
erate compensation for the expenses incurred by him in such prosecution. 

On the 23d of February, 1863, Mr. Bowden was elected Senator for Virginia by the 
legislature assembled at Wheeling, the great portion of Virginia, including Richmond, 
its former seat of government, being then in rebellion. He was admitted to his seat, the 
Senate thereby recognizing the legal existence of the State he represented. West Vir- 

*This debate took place on a previous proceeding not found in the Senate Journal. The resolu¬ 
tion was first offered as an amendment to a resolution annulling the resolution by which William 
K. Sebastian was expelled. 

f Taken from Senate Reports, vol. 2, 2d sess. 45th Cong., No. 509. 



SEGAR AND UNDERWOOD. 


315 


ginia was then erected into a separate State. The legislature of Virginia assembled at 
Alexandria and continued the functions of a State legislature of Virginia. Mr. Bowden 
continued to represent Virginia in the Senate until his death, on the 2d of January, 1864. 
December 8, 1864, the petitioner was elected to succeed Mr. Bowden, and prosecuted his 
claim with diligence. The Alexandria government was recognized as a valid State or¬ 
ganization by President Lincoln in his amnesty proclamation of December 8, 1863. It 
gave its constitutional assent to the adoption of the thirteenth amendment of the Consti¬ 
tution of the United States, and its assent is treated by Mr. Seward in his proclamation 
announcing the adoption of the amendment as necessary thereto. 

Under these circumstances, the petitioner was well warranted in presenting his claim 
to a seat in the Senate. If the practice then prevailing were now acted upon he would 
receive full salary and mileage. The Senate in the cases of Ray and McMillan, at the 
present session, preferred to allow to such claimants only a compensation for reasonable 
and moderate expenses. As this is a new rule, it would be clearly unjust to require of 
claimants to furnish minute items and vouchers. We think the sum of $5,000 a reason¬ 
able and moderate allowance to Mr. Segar for three years’ prosecution of his claim. We 
therefore recommend the passage of the accompanying resolution: 

Resolved , That there be allowed and paid out of the contingent fund of the Senate to 
Joseph Segar the sum of $5,000, in full compensation for his expenses in prosecuting his 
claim to a seat in the Senate as a Senator from the State of Virginia. 

[Third session of the Forty-fifth Congress.] 

Tuesday, February 18, 1879. 

On motion by Mr. Hoar, the Senate proceeded to consider, as in Committee of the 
Whole, the following resolution: 

11 Resolved, That there be allowed and paid out of the contingent fund of the Senate 
to Joseph Segar the sum of $5,000, in full compensation for his expenses in prosecuting 
his claim to a seat in the Senate as a Senator from the State of Virginia; ” 

And no amendment being made, it was reported to the Senate. 

On the question, Shall the resolution be engrossed and read a third time? it was deter¬ 
mined in the affirmative—yeas 34, nays 24. 

On motion by Mr. Sargent, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Anthony, Barnum, Blaine, Burnside, 
Butler, Cameron of Wisconsin, Chaffee, Conover, Davis of West Virginia, Dawes, Dor¬ 
sey, Edmunds, Ferry, Garland, Gordon, Grover, Hill, Hoar, Ingalls, Jones of Florida, 
Kirkwood, McMillan, Matthews, Merrimon, Mitchell, Morgan, Paddock, Saunders, 
Sharon, Teller, Voorhees, Wadleigh, Windom, and Withers. 

Those who voted in the negative are Messrs. Bailey, Bayard, Booth, Cameron of 
Pennsylvania, Cockrell, Coke, Conkling, Davis of Illinois, Eaton, Harris, Kernan, Mc- 
Creery, McDonald, McPherson, Maxey, Morrill, Randolph, Ransom, Rollins, Sargent, 
Saulsbury, Spencer, Wallace, and Whyte. 

So it was 

Ordered , That the resolution be engrossed and read a third time. 

And the said resolution was read the third time. 

Resolved, That it pass. 

[The debate is found on pages 1513-1515 of the Congressional Record, vol. viii, part 2.] 
CLAIM OF EEPEESENTATIYES OF ME. UNDEEWOOD, DECEASED. 

[Third session of the Forty-fifth Congress.] 

Satueday, February 22, 1879. 

Mr. Withers presented the petition of Maria G. Underwood, administratrix of the 
estate of John C. Underwood, deceased, praying an appropriation to pay the alleged 
expenses incident to his election as a Senator in Congress from the State of Virginia; 
which was referred to the Committee on Privileges and Elections. 

[First session of the Forty-seventh Congress. ] 

Tuesday, January 24, 1882. 

Mr. Walker presented the petition of Maria G. Underwood, praying an allowance to 
her as the administratrix of J. C. Underwood, deceased, on account of the election of 
the said J. C. Underwood to the United States Senate; which was referred to the Com¬ 
mittee on Privileges and Elections. 


316 


SENATE ELECTION CASES. 


Monday, May 29, 1862. 

Mr. Lapham, from the Committee on Privileges and Elections, t!) whom was referred 
the petition of Maria G. Underwood, submitted a report (No. 656) thereon accompanied 
by the following resolution; which was read the first and second times by unanimous 
consent. [Resolution given at end of report. ] 


EEPOET OP COMMITTEE.* 

[The committee consisted of Messrs. Hoar (chairman), Cameron of Wisconsin, Sher¬ 
man, Frye, Lapham, Saulsbury, Hill of Georgia, Yance, and Pugh.] 


In the Senate of the United States. 

May 29,1882. —Ordered to be printed. 

Mr. Lapham, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

The Committee on Privileges and Elections, to whom was referred the petition of Maria 
G. Underwood, administratrix of John C. Underwood, deceased, asking payment for 
salary and mileage of the said John C. Underwood from the 4th of March, 1865, to the 
4th of March, 1871, have considered the same, and respectfully report: 

That on the 9th day of December, 1864, the petitioner’s intestate was duly elected a 
Senator from the State of Virginia, for the term of six years from the 4th day of March, 
1865; that he received a certificate of such election in the words and figures following: 


Virginia, to wit: 

' The legislature of this State ha ving, on the ninth day of December, 1864, in pursuance 
of the Constitution for the United States, chosen John C. Underwood, esquire, a Senator 
from this State for six years from the fourth day of March next, I, Francis H. Peirpoint, 
being governor of the Commonwealth, do hereby certify the same to the Senate of the 
United States. 

Given under my hand and the seal of the Commonwealth this the fourteenth day De¬ 
cember, 1864. 

[seal of vieginia. ] F. H. PEIRPOINT. 

By the governor: 

W. J. COWING, 
Secretary of the Commonwealth. 


That the said John C. Underwood duly presented his certificate and credentials as 
aforesaid, on the 9th day of March, 1865, to the Senate of the United States, and made 
efforts to obtain his seat in the said Senate, traveling from his home in Virginia to the 
city of Washington from time to time, and incurred a very considerable expenditure of 
time and money in so doing; that on the same day of the election of said John C. Under¬ 
wood one Joseph Segar was also duly elected a Senator from said State and presented his 
credentials to the Senate; that neither the said Segar nor the said Underwood were ad¬ 
mitted to take their seats in the Senate; that the said Segar duly presented his memorial 
to the Senate during the Forty-fifth Congress, at its second session, asking payment for 
his salary and mileage as Senator from the 9th of December, 1864, to the 4th of March, 
1869, which was referred to the Committee on Privileges and Elections, and the com¬ 
mittee recommended the passage of a resolution in words and figures following: 

‘ ‘ Resolved, That there be allowed and paid out of the contingent fund of the Senate to 
Joseph Segar the sum of $5,000, in full compensation for his expenses in prosecuting his 
claim to a seat in the Senate as a Senator from the State of Virginia.” 

Which resolution was adopted by the Senate, and the amount therein named was paid 
to the said Segar. The report of the committee in Segar’s case contained the following 
statements: 

“ If the petitioner had been admitted to the seat which he claimed, his salary and mile¬ 
age would have amounted to more than $21,000. He was not admitted and having never 
performed the duties of a Senator, under the most recent precedent he is not entitled to 
compensation and mileage as such. By the same precedent, if he prosecuted in good 
faith and on reasonable grounds a claim for such seat, he should be allowed a moderate 
compensation for the expenses incurred by him in such prosecution.” 

On the 23d day of February, 1863, the legislature of Virginia assembled at Wheeling, 
in said State, the greater portion of the State, including the city of Richmond, its former 
seat of government, being then in rebellion, and elected one Bowden a United States 
Senator from that State. Said Bowden was admitted to his seat, the Senate thereby 


* Taken from Senate Reports, 1st sess. 47th No. 656. 




SEGAR AND UNDERWOOD. 


317 


recognizing the legal existence of the legislature which elected him. West Virginia, in¬ 
cluding the city of Wheeling, was then erected into a separate State. The legislature oi 
Virginia, after such formation of a new State, assembled at the city of Alexandria and 
continued the functions of a State legislature of Virginia. Said Bowden died on the 2d 
of January, 1864, and said Segar was elected to succeed him at the same time of the 
election of John C. Underwood, as aforesaid. 

The committee in Segar’s case further reported as follows: 

“The Alexandria government was recognized as a valid State organization by Presi¬ 
dent Lincoln in his amnesty proclamation of December 8,1863. It gave its constitutional 
assent to the adoption of the thirteenth amendment of the Constitution of the United 
States, and its assent is treated by Mr. Seward in his proclamation announcing the adop¬ 
tion of the amendment as necessary thereto. 

“Under these circumstances, the petitioner was well warranted in presenting his claim 
to a seat in the Senate. If the practice then prevailing were now acted upon he would 
receive full salary and mileage. The Senate in the cases of Ray and McMillen, at the 
present session, preferred to allow to such claimants only a compensation for reasonable 
and moderate expenses. As this is a new rule, it would be clearly unjust to require of 
claimants to furnish minute items and vouchers. Wc think the sum of $5,000 a reason¬ 
able and moderate allowance to Mr. Segar for three years’ prosecution of his claim. We 
therefore recommend the passage of the accompanying resolution.” 

The cases of said Underwood and Segar are alike in all respects, except the terms for 
which they were chosen. It is true no actual service as Senator was rendered by either, 
but each stood ready to perform his duties whenever the Senate should allow it; that the 
said Underwood performed no such service was the fault of the Senate, not his. The 
precedents fully justify the allowance to said Segar and the allowance asked by the 
petitioner. The House of Representatives has frequently paid large sums of money to 
unsuccessful contestants for seats in that body; and the Senate, at the same session during 
which the allowance was made to Segar, also paid Messrs. Ray and McMillen, and has 
also paid two claimants for seats from the State of Georgia, although none of them were 
allowed to occupy their seats in the Senate. The valuable services rendered by said 
Underwood to the Government in its struggle for national supremacy are matters of his¬ 
tory and need not be here repeated. We think the sum allowed and paid to Mr. Segar 
is a precedent which should be followed in this case, and recommend the passage of the 
accompanying resolution: 

Resolved , That there be allowed and paid out of the contingent fund of the Senate to 
Maria G. Underwood, administratrix of John C. Underwood, deceased, the sum of $5,000, 
in full compensation for the time and expenses of said John C. Underwood in prosecuting 
his claim to a seat in the Senate as a Senator from the State of Virginia. 

Wednesday, June 7, 1882. 

On motion by Mr. Lapham, the Senate proceeded to consider, as in Committee of the 
Whole, the resolution reported by him on the 29th ultimo from the Committee on Priv¬ 
ileges and Elections, to pay Maria G. Underwood, administratrix, $5,000 in full com¬ 
pensation for expenses of John C. Underwood in prosecuting his claim to a seat in the 
Senate. 

After debate, 

Ordered , That the further consideration thereof be postponed to to-morrow. 

[The debate is found on pages 4616-4618 of the Congressional Record, vol. xiii, part 5. ] 


[Second session of the Forty-seventh Congress.] 

Saturday, March 3, 1883. 

On motion by Mr. Lapham, the Senate proceeded to consider, as in Committee of the 
Whole, the resolution reported by him May 29,1882, to pay Maria G. Underwood $5,000 
in full compensation for expenses of John G. Underwood in prosecuting his claim to a 
seat in the Senate of the United States. 

After debate, 

Ordered , That the said resolution be postponed indefinitely. 

[The debate is found on pages 3697-3706 of the Congressional Record, vol. xiv, part 4.] 

[First session of the Forty-eighth Congress.] 

Monday, December 10, 1883. 

On motion by Mr. Hoar, 

Ordered , That the petition and papers of Maria G. Underwood, on the files of the Sen¬ 
ate, be referred to the Committee on Privileges and Elections. 


318 


SENATE ELECTION CASES. 


Friday, June 20, 1884. 

Mr. Lapham, from the Committee on Privileges and Elections, to whom was referred 
the petition of Mrs. Maria G. Underwood, administratrix of John C. Underwood, de¬ 
ceased, submitted a report (No. 748) thereon, accompanied by the following resolution 
for consideration. [Resolution found at end of report.] 


REPORT OF COMMITTEE.* 

[The committee consisted of Messrs. Hoar (chairman), Cameron of Wisconsin, Sher¬ 
man, Frye, Lapham, Saulsbury, Vance, Pugh, and Jonas.] 


In the Senate of the United States. 

June 20, 1884.—Ordered to be printed. 

Mr. Lapham, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

The Committee on Privileges and Elections, to whom was referred the petition of 
Maria G. Underwood, administratrix of John C. Underwood, deceased, asking payment 
for salary and mileage of the said John C. Underwood from the 4th of March, 1865, to 
the 4th of March, 1871, have considered the same, and respectfully report: 

That on the 9th day of December, 1864, the petitioner’s intestate was duly elected a 
Senator from the State of Virginia for the term of six years from the 4th day of March, 
1865; that he received a certificate of such election in the words and figures following: 


Virginia, to wit: 

The legislature of this State having, on the 9th day of December, 1864, in pursuance 
of the Constitution of the United States, chosen John C. Underwood, esquire, a Senator 
from this State for six years from the 4th day of March next, I, Francis H. Peirpoint, 
being governor of the Commonwealth, do hereby certify the same to the Senate of the 
United States. 

Given under my hand and the seal of the Commonwealth this the 14th day of Decem¬ 
ber, 1864. 

[seal of Virginia.] F. H. PEIRPOINT. 

By the governor: 

W. J. COWING, 


Secretary of the Commonwealth. 


That the said John C. Underwood duly presented his certificate and credentials as 
aforesaid, on the 9th day of March, 1865, to the Senate of the United States, and made 
efforts to obtain his seat in the said Senate, traveling from his home in Virginia to the 
city of Washington from time to time, and incurred a very considerable expenditure of 
time and money in so doing; that on the same day of the election of said John C. Un¬ 
derwood one Joseph Segar was also duly elected a Senator from said State and presented 
his credentials to the Senate; that neither the said Segar nor the said Underwood were 
admitted to take their seats in the Senate; that the said Segar duly presented his me¬ 
morial to the Senate during the Forty-fifth Congress, at its second session, asking pay¬ 
ment for his salary and mileage as Senator from the 9th of December, 1864, to the 4th 
of March, 1869, which was referred to the Committee on Privileges and Elections, and 
the committee recommended the passage of a resolution in words and figures following: 

“ Resolved, That there be allowed and paid out of the contingent fund of the Senate 
to Joseph Segar the sum of $5,000, in full compensation for his expenses in prosecuting 
his claim to a seat in the Senate as a Senator from the State of Virginia.” 

Which resolution was adopted by the Senate, and the amount therein named was 
paid to the said Segar. The report of the committee in Segar’s case contained the fol¬ 
lowing statements: 

“If the petitioner had been admitted to the seat which he claimed, his salary and 
mileage would have amounted to more than $21,000. He was not admitted, and having 
never performed the duties of a Senator, under the most recent precedent he is not en¬ 
titled to compensation and mileage as such. By the same precedent, if he prosecuted 
in good faith and on reasonable grounds a claim for such seat, he should be allowed a 
moderate compensation for the expenses incurred by him in such prosecution. ’ ’ 

A majority of the inhabitants of Virginia were opposed to the secession of the State 
and its union with the confederate government. After the ordinance of secession was 
adopted, about fifty-five counties in the northwestern portion of the State united in 
sending delegates to the convention at Wheeling, on the 11th of June, 1861. 


* Taken from Senate Reports, 1st sess. 48th Cong., No. 748. 




SEGAR AND UNDERWOOD. 


319 


This was done under the advice of the Attorney-General and of President Lincoln, 
that such counties would be recognized as the lawful government of the State of Vir¬ 
ginia if they remained loyal to the Government. The convention thus assembled chose 
a governor, lieutenant-governor, and council to fill the offices vacated by those who had 
seceded. John S. Carlile and Whitman T. Willey were chosen United States Senators 
to occupy the seats vacated by Messrs. Mason and Hunter. They were admitted to 
&heir seats in the Senate at the extra session on the 4th of July, 1861. Five members 
of the House of Representatives were admitted to their seats in that body at the same 
time, and thus the existence and validity of the government of Virginia were recognized 
by both Houses of Congress. On the 20th of August, 1861, the convention passed an 
ordinance to provide for the formation of the State of West Virginia. Delegates from 
the counties to compose the new State met in convention at Wheeling, framed a consti¬ 
tution for the new State, which was submitted to a vote of the people of said counties 
in April, 1862, and ratified by an almost unanimous vote. 

Governor Peirpoint, the newly installed governor of Virginia, called an extra session 
of the legislature for the 6th of May, 1862, at which session an act was passed giving 
the assent of the State of Virginia to the formation of the new State. This consent, 
with a copy of the proposed constitution, were transmitted to Congress with an applica¬ 
tion for the admission of West Virginia as a new State. Congress passed an act provid¬ 
ing for its admission, which was approved by the President on the 31st of December, 
1862, and West Virginia thus became a State in the Union on an equal footing with the 
original States. The act provided that until the next census the new State should have 
three members in the House of Representatives. The legislature at Wheeling passed 
an act authorizing the removal of the seat of government from Wheeling to Alexandria. 
An election for State officers was held in the fall of 1863. Governor Peirpoint was elected 
for a full term. Three members of Congress were chosen, and a Senator to take the 
place of Mr. Willey, who had been elected a Senator from the new State of West Vir¬ 
ginia. The Senators and Representatives thus chosen took their seats at the opening of 
the session of Congress in December, 1863, and continued to hold them until the close 
of that Congress, on the 4th of March, 1865, except Senator Bowden, who died in the 
winter of 1865, and Mr. Joseph Segar was chosen to fill his place for the unexpired 
term. 

All the counties represented in the government of Alexandria, as well as those com¬ 
posing the State of West Virginia, were excepted from the proclamation of the President 
declaring certain States and parts of States in rebellion, and were recognized by the 
Government as loyal to the United States. The legislature at Alexandria called a con¬ 
vention, which forever abolished slavery in the State of Virginia, and the legislature 
adopted the thirteenth amendment to the Constitution of the United States. The votes 
of twenty-seven States were required to make the ratification of the thirteenth amend¬ 
ment valid, and Virginia, under the Alexandria government, made the twenty-seventh. 

If Virginia was not a State the thirteenth amendment was never adopted, and slavery 
has never been legally abolished, nor has West Virginia been constitutionally admitted 
as a State. In May, 1865, President Johnson issued a proclamation to re-establish the 
authority of the United States and execute the laws within the limits of the State of 
Virginia, recognizing Governor Peirpoint as the governor of the State, and directing that 
he should be aided, so far as might be necessary, in the extension of the State govern¬ 
ment throughout the limits of the State. 

When Congress met in December, 1865, the war had closed, and the State of Virginia, 
as well the loyal as the disloyal portion, with the other disloyal States, were on some 
terms to be restored to their relations with the Federal Government. On the first day 
of the session a resolution was adopted in the House for the appointment of a joint com¬ 
mittee of the two Houses to consider that subject and report by bill or otherwise, and 
providing that until such report no Senator or Member should be admitted to a seat, 
and that the credentials of all Senators and Members should be referred to said commit¬ 
tee. When the resolution came up in the Senate for action Senator Anthony moved to 
amend the enacting clause so as to make it a concurrent instead of a joint resolution, and 
also moved to strike out the following words: 

“ And until such report shall have been made, and final action by Congress on, no 
member shall be received into either House from any of the so-called Confederate States, 
and all papers relating to the representation in said States shall be referred to said com¬ 
mittee without debate.” 

Senator Anthony stated that this portion of the resolution was a violation of the Con¬ 
stitution, which made the Senate the exclusive judge of the election returns and quali¬ 
fications of its own members and also a violation of the practice of the Senate by cutting 
off debate. Both amendments were adopted by the Senate, and the House concurred in 
the resolution as amended. 

This left Messrs. Segar and Underwood, who had been chosen Senators to represent 


320 


SENATE ELECTION CASES. 


Virginia from tlie 4th of March, 1865, free to press their claims to the seats which had 
been occupied in the Senate since the reorganization of the State government in 1861. 
It was their duty to the State to press their claims to such seats, and they would have 
violated their obligations of honor if they had failed to do so. 

The joint committee of the two Houses made no report until the month of June, 1866. 

The Senators and Representatives from Tennessee who were denied their seats at the 
opening of the session were admitted to their seats in the month of July, 1866. 

The Senators-elect from Virginia had a right to expect the same results, and in good 
faith pressed their claims for recognition. 

The portion of Virginia from which they were elected was expressly excepted from the 
President’s proclamation declaring the inhabitants of certain States to be in rebellion, 
also in the proclamation of emancipation and in the amnesty proclamation. 

In the proclamation of emancipation Virginia was included, except the forty-eight 
counties designated as West Virginia, and also the counties of Berkeley, Accomac, North¬ 
ampton, Elizabeth City, York, Princess Anne, and Norfolk, including the cities of Nor¬ 
folk and Portsmouth. These formed the State of Virginia, after the cession of West 
Virginia, and had a population entitling the State to three Representatives in the House. 
They had abolished slavery in 1864, and as to them the proclamation was unnecessary. 

The government of Virginia, as organized in 1861, continued its 1 unctions, notwith¬ 
standing the reconstruction acts, until Governor Peirpoint’s term expired in April, 1868. 
The convention that framed the new constitution in 1867 expressly validated and recog¬ 
nized as binding all the legislative and judicial acts of the State of Virginia during this 
whole period. 

Still later on, in an action brought by the State of Virginia against West Virginia, the 
Supreme Court of the United States affirmed the validity of the State government of 
Virginia and held that its assent in annexing three counties to West Virginia, which 
were not included in the original cession, was valid and binding upon the State. 

Upon these facts and upon the precedents long established, it seems to your committee 
that Messrs. Segar and Underwood would be entitled to their full salaries as Senators. 
Mr. Sykes, of Alabama, who had been elected by a legislature pronounced by the Senate 
as illegal, was allowed his compensation and mileage from March, 1873, to May, 1874, the 
day he was denied his seat. Mr. Pinchback was allowed pay from March, 1873, when he 
was elected, to March, 1876, when he was refused a seat, aggregating $16,966.90. 

The practice of the Senate, however, in this respect has been modified, and in the 
cases of Ray and McMillen a compensation for reasonable and moderate expenses only 
was allowed. Following this rule, the Senate allowed Mr. Segar the sum of $5,000 for 
his expenses incurred in the prosecution of his claim without an itemized or detailed 
account of the same. 

The fact that Mr. Underwood held and was receiving a salary to another office consti¬ 
tutes no objection to such allowance. Members of the House of Representatives and of 
the Senate have been granted such allowances while at the same time drawing their 
salaries. Messrs. Kellogg, Ingalls, and Butler were paid their expenses under similar 
circumstances. If it was the duty of Judge Underwood to make an effort to obtain his 
seat he should be paid his expenses, although he could not accept the seat when awarded 
to him without vacating his other office. 

The cases of said Underwood and Segar are alike in all respects, except the terms for 
which they were chosen. It is true no actual service as Senator was rendered by either, 
but each stood ready to perform his duties whenever the Senate should allow it; that 
the said Underwood performed no such service was the fault of the Senate, not his. The 
precedents fully justify the allowance to said Segar and the allowance asked by the 
petitioner. The House of Representatives has frequently paid large sums of money to un¬ 
successful contestants for seats in that body; and the Senate, at the same session during 
which the allowance was made to Segar, also paid Messrs. Ray and McMillen although 
neither of them were allowed to occupy their seats in the Senate. The valuable services 
rendered by said Underwood to the Government in its struggle for national supremacy 
are matters of history and need not here be repeated. We think the sum allowed and 
paid to Mr. Segar is a precedent which should be followed in this case, and recommend 
the passage of the accompanying resolution: 

Resolved , That there be allowed and paid out of the contingent fund of the Senate to 
Maria G. Underwood, administratrix of John C. Underwood, deceased, the sum of $5,000, 
in full compensation for the time and expenses of the said John C. Underwood in prose¬ 
cuting his claim to a seat in the Senate as a Senator from the State of Virginia. 

Saturday, July 5, 1884. 

On motion by Mr. Lapham, the Senate proceeded to consider the resolution reported 
from the Committee on Privileges and Elections June 20, 1884, to pay Maria G. Under- 


SEGAR AND UNDERWOOD. 


321 


wood, widow of John C. Underwood, the sum of $5,000, in full compensation for ex¬ 
penses of said John C. Underwood in prosecuting his claim to a seat in the Senate. 
After debate, 

On motion by Mr. Plumb, the Senate proceeded to consider bill S. 2203, &c. 

[The debate is found on pages 6067-6070 of the Congressional Record, vol. xv, part 6.] 


[Second session of the Forty-eighth Congress.] 

Friday, February 20, 1885. 

Mr. Lapham submitted the following resolution for consideration: 

“ Resolved , That there be paid out of the contingent fund of the Senate to Alice E. Un¬ 
derwood, executrix of the last will and testament of Maria G. Underwood, administrar 
trix of John C. Underwood, deceased, the sum of $5,000, in full compensation for the 
time and expense of the said John C. Underwood in prosecuting his claim to a seat in 
the Senate as a Senator from the State of Virginia.” 

Saturday, February 21, 1885. 

The Presiding Officer (Mr. Allison in the chair) laid before the Senate the resolution 
yesterday submitted by Mr. Lapham, to pay the executrix of the widow of John C. Un¬ 
derwood his expenses in prosecuting his claim to a seat in the Senate; and the resolution 
was referred to the Committee to Audit and Control the Contingent Expenses of the 
Senate. 


Thursday, February 26, 1885. 

Mr. Jones, of Nevada, from the Committee to Audit and Control the Contingent Ex¬ 
penses of the Senate, to whom was referred the resolution submitted by Mr. Lapham on 
the 20th instant, to pay the heirs of John C. Underwood the amount of his expenses in 
contesting his right to a seat in the Senate, reported it without amendment. 

[Special session of Senate, March, 1885.] 

Tuesday, March 10, 1885. 

Mr. Hoar submitted the following resolution; which was referred to the Committee 
to Audit and Control the Contingent Expenses of the Senate: 

“ Resolved , That there be allowed and paid out of the contingent fund of the Senate, to 
Alice G. Underwood, executrix of the last will and testament of Maria G. Underwood, 
administratrix of John C. Underwood, deceased, the sum of $5,000, in full compensation 
for the time and expenses of the said John C. tinder wood in prosecuting his claim to a 
seat in the Senate as a Senator from the State of Virginia.” 

Thursday, March 19, 1885. 

Mr. Chace, from the Committee to Audit and Control the Contingent Expenses of the 
Senate, to whom was referred the resolution submitted by Mr. Hoar on the 10th instant, 
to pay the expenses of the late John C. Underwood in prosecuting his claim to a seat in 
the Senate, reported it without amendment. 

[First session of the Forty-ninth Congress.] 


April 21, 1886. 

On motion by Mr. Hoar, 

The Senate proceeded to consider the resolution submitted by him March 10,1885, 
to pay the expenses of John C. Underwood in prosecuting his claim to a seat in the 
Senate as a Senator from the State of Virginia; and 

Resolved, That there be allowed and paid out of the contingent fund of the Senate, 
to Alice C. Underwood, executrix of the last will and testament of Maria G. Under¬ 
wood, administratrix of John C. Underwood, deceased, the sum of $5,000, in full 
compensation for the time and expenses of the said John C. Underwood in prosecut¬ 
ing his claim to a seat in the Senate as a Senator from the State of Virginia. 

S. Doc. 11-21 



322 


SENATE ELECTION CASES, 


[Thirty-ninth Congress—First session.] 

JOHN P. STOCKTON, 

Senator from New Jersey from March 4, 1865, till March 27, 1866, and 
from March 4, 1869, till March 3, 1875. 


Mr. Stockton’s credentials were presented and he took his seat in the Senate December 4, 1865 
At the same time a memorial of members of the legislature protesting against his admission to a seat 
in the Senate was presented and ordered to lie on the table. January 8, 1866, the credentials and 
memorial were referred to the Committee on the Judiciary. January 30 the committee reported 
that the facts in regard to Mr. Stockton’s election were as follows: There was no law in New Jersey 
prescribing the “manner” of electing Senators, other than that they “shall be appointed by the 
senate and general assembly in joint meeting assembled.” The joint meeting electing Mr. Stockton 
passed a resolution that the candidate receiving a plurality of votes of the members present should 
be declared duly elected. The joint assembly consisted of eighty-one members. All were present 
when the vote for Senator took place. Mr. Stockton received 40 votes and Mr. Ten Eyck and other 
persons 41. The question before the Senate was whether a joint convention could prescribe a plu¬ 
rality rule. The committee reported that for the purpose of choosing Senators the joint convention 
is regarded as the legislature, so that it is vested by the Constitution of the United States with 
authority to prescribe the manner of electing Senators; and recommended the adoption of a res¬ 
olution that Mr. Stockton was entitled to his seat. Some Senators maintained that in the absence 
of any law a majority was by the parliamentary law of the land necessary to constitute a valid elec¬ 
tion, and that the legislature alone, acting in a legislative capacity through its two branches sepa¬ 
rately, was competent to prescribe that a plurality should elect. March 23 the resolution reported 
by the committee passed the Senate, Mr. Stockton voting, by a vote of 22 yeas to 21 nays. March 
26 the Senate voted to reconsider the vote agreeing to the resolution. It then resolved “that 
the vote of Mr. Stockton be not received in determining the question of his seat in the Senate.” 
March 27 the Senate resolved by a vote of 23 yeas to 20 nays that Mr. Stockton was not entitled to 
his seat. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journal, 1st sess. 39th Cong., and the report of the committee, with the exception 
of certain accompanying documents, from Senate Reports, 1st sess. 39th Cong., No. 4. 

Special references to the debates of each day, which are found in the Congressional Globe, part 2 
1st sess. 39th Cong., are inserted below. 


Monday, December 4, 1865. 

Mr. Wright presented the credentials of the Hon. John P. Stockton, elected a Senator 
by the legislature of the State of New Jersey for the term of six years commencing on 
the 4th day of March, A. D. 1865. 

The credentials were read and the oaths prescribed by law were administered to Mr. 
Stockton, and he took his seat in the Senate. 

Mr. Cowan presented a memorial of members of the senate and house of representa¬ 
tives of the State of New Jersey protesting against the admission of the Hon. John P. 
Stockton to a seat in the Senate as a Senator from that State. 

Ordered , That it lie on the table. 


Monday, January 8, 1866. 

On motion by Mr. Cowan, 

Ordered , That the credentials of the Hon. John P. Stockton, United States Senator 
from the State of New Jersey, together with the memorial of the members of the senate 
and house of assembly of the State of New Jersey protesting against the admission of 
the Hon. John P. Stockton to a seat in the United States Senate as a Senator from that 
State, be referred to the Committee on the Judiciary. 


Tuesday, January 30, 1866. 

Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre¬ 
dentials of the Hon. John P. Stockton, elected a Senator by the legislature of the State 
of New Jersey, and the protest of certain members of the legislature of the said State 
against the validity of his election, submitted a report (No. 4), accompanied by the 
following resolution: 

“ Resolved, That John P. Stockton was duly elected, and v, entitled to his seat, as a 
Senator from the State of New Jersey for the term of six years from the 4th day of March 
1865.” * ’ 


Ordered , That the report, with the accompanying credentials and protest, be printed. 


JOHN P STOCKTON. 


323 


REPORT CF COMMITTEE. * 

[The committee consisted of Messrs. Trumbull (chairman), Harris, Clark, Johnson, 
Poland, Stewart, and Hendricks.] 

In the Senate of the United States. 

January 30, 1866.—Ordered to be printed. 

Mr. Trumbull submitted the following report: 

The Committee on the Judiciary, to whom were referred the credentials of John P. 
Stockton, claiming to have been elected a Senator from the State of New Jersey for six 
years from the 4th day of March, 1865, together with the protest of certain members of 
the legislature of said State against the validity of his election, submit the following 
report: 

The only question involved in the decision of Mr. Stockton’s right to a seat is whether 
an election by a plurality of votes of the members of the legislature of New Jersey in 
joint meeting assembled, in pursuance of a rule adopted by the joint meeting itself, is 
valid. The protestants insist that it is not, and they deny Mr. Stockton’s right to a seat, 
because, as they say, he was not appointed by a majority of the votes of the joint meet¬ 
ing of the legislature. 

The legislative power of the State of New Jersey is vested by the State constitution in 
a senate and general assembly, which are required, for legislative purposes, to meet 
separately, but which, for the appointment of various officers, are required to assemble 
in joint meeting; and when so assembled, are, by the constitution itself, styled the 
44 legislature in joint meeting. ’ ’ 

The constitution of New Jersey does not prescribe the manner of choosing United States 
Senators; as, indeed, it could not, the Constitution of the United States having vested 
that power, in the absence of any law of Congress, exclusively in the legislature; but it 
does constitute the two houses one body for the purpose of appointing certain State offi¬ 
cers. The statute of New Jersey declares that “United State Senators, on the part of 
that State, shall be appointed by the senate and general assembly in joint meeting 
assembled; ” but it does not prescribe any rules for the government of the joint meeting, 
nor declare the manner of election. 

The practice in New Jersey has been for the joint meeting to prescribe the rules for 
its own government. 

In 1794 fifteen rules were adopted, the first two of which are as follows: 

“1. That the election of State officers during the present session be viva voce, unless 
when otherwise ordered; and that all officers be put in nomination at least one day before 
their election. 

4 4 2. That the chairman shall not be entitled to vote except in case of a tie, and then to 
have a casting vote . 1 ’ 

The other thirteen rules related chiefly to the method of conducting the proceedings. 
Each joint meeting which has since assembled has adopted its own rules, usually those 
of the preceding joint meeting, sometimes, however, with additions or exceptions. 

In 1851 the following additional rule was adopted: 

44 Resolved , That no person shall be elected to any office, at any joint meeting during 
the present session, unless there be a majority of all the members elected personally 
present, and agreeing thereto.” 

In 1855 the joint meeting, after adopting the fifteen rules of the preceding joint meet¬ 
ing, added the following: 

4 ‘ That all candidates for office, upon receiving a majority of the votes cast by this joint 
meeting, shall be declared duly elected.” 

The joint meeting of 1861 adopted the rules of the preceding joint meeting for its own 
government, among which were the following: 

4 4 1. That the election of State officers during the present session be viva voce, unless 
when otherwise ordered. 

4 4 15. That in all questions the chairman of the joint meeting be called upon to vote in 
his turn as one of the representatives in the senate or assembly; but that he have no 
casting vote as chairman. 

44 16. That all candidates for office, upon receiving a majority of the votes cast by this 
joint meeting, shall be declared to be duly elected.” 

The same rules were adopted by each joint meeting from 1861 to 1865. 

The joint meeting which assembled February 15, 1865, and at an adjourned session 
of which Mr. Stockton was appointed Senator, adopted, at its first meeting, the rules of 


* A reference to the documents accompanying the report is given in the head-note. 






324 


SENATE ELECTION CASES. 


the preceding joint meeting, except the sixteenth rule, in lieu of which the following 
was adopted: 

“ Resolved, That no candidate shall be declared elected unless upon receiving a majority 
of the votes of all the members elected to both houses of the legislature.” 

After having appointed various officers under the rules which had been adopted at the 
assembling of the joint meeting, the following rule was adopted: 

‘‘ Resolved, That the vote for county judges and commissioners of deeds be taken by 
acclamation, and that the counties in which vacancies exist he called in alphabetical 
order. ’’ 

Acting under this rule, quite a number of officers were appointed by acclamation. 
Not completing its business the joint meeting adjourned from time to time till March 15, 
when the following rule was adopted: 

‘ ‘ Resolved, That the resolution that no candidate shall be declared elected unless upon 
receiving a majority of the votes of all the members elected to both houses of the legisla¬ 
ture be rescinded, and that any candidate receiving a plurality of votes of the members 
present shall be declared duly elected. ’ ’ 

Every member of both houses, eighty-one in all, was present and voting when the above 
resolution was passed, and it was carried by a vote of 41 in the affirmative, of whom eleven 
were senators and thirty representatives, to 40 in the negative, of whom ten were senators 
and thirty representatives. The joint meeting then proceeded to the election of a United 
States Senator, with the following result: 

Hon. John P. Stockton, 40 votes; Hon. J. C. Ten Eyck, 37 votes; J. W. Wall, 1 vote; 
P. D. Yroom, 1 vote; F. T. Frelinghuysen, 1 vote; H. S. Little, 1 vote. 

Whereupon John P. Stockton, having received a plurality of all the votes cast, was 
declared duly elected. The joint meeting then proceeded to the election of various other 
officers, having completed which, it rose. 

The credentials of Mr. Stockton are under the great seal of state, signed by the gov¬ 
ernor and in due form. No objection appears to have been made at the time to the 
election. Its validity is now called in question by a protest dated March 20, 1865, and 
signed by eight senators and thirty members of the general assembly. The Constitution 
of the United States declares that the Senate of the United States “shall be composed of 
two Senators from each State, chosen by the legislature thereof, ’ ’ and that ‘ ‘ the times, 
places, and manner of holding election for Senators and Representatives shall be prescribed 
in each State by the legislature thereof, but the Congress may at any time by law make or 
alter such regulations, except as to the places of choosing Senators. ’ ’ 

The right to choose United States Senators in a joint meeting of the two houses which 
compose the legislature of a State has been too long and too frequently exercised to be 
now brought in question. This has been the manner of election in some States from the 
beginning, and is now the manner in most of them. 

For the purpose of choosing United States Senators the joint meeting of the two houses 
is regarded as the legislature, and especially would this be so in New Jersey, where the 
joint meeting is by the constitution of the State denominated a legislature. It has uni¬ 
formly been held that when the two branches of a legislature meet in joint convention 
to elect a United States Senator they are merged into one and act as one body, so that 
an election may be effected against the entire vote of the members of one house if the 
person voted for receive the requisite number of votes from members of the other. It 
being, then, settled that the two houses of a legislature in joint meeting assembled con¬ 
stitute the legislature, vested by the Constitution of the United States with authority, 
acting as one body, to elect a Senator, the question is: Did the joint meeting of the senate 
and general assembly of New Jersey, duly convened in pursuance of a resolution previ¬ 
ously concurred in by each house separately, choose John P. Stockton United States 
Senator? 

That it was competent for a plurality to elect, if a law to that effect had been prescribed 
by competent authority, will hardly be questioned. This is the rule very generally, if not 
universally, adopted in the election of members of the House of Representatives, who are 
‘ ‘ chosen every second year by the people of the several States, ’ ’ and no one questions the 
validity of the election of a Representative by a plurality vote when the law authorizes 
a plurality to elect. It is however insisted, and truly, that no law of New Jersey author¬ 
izes a plurality to elect. The laws of New Jersey are silent on this subject, but they do 
authorize a joint meeting of the two houses of the legislature to appoint a Senator, and 
it has been the uniform practice of this joint meeting since the foundation of the Govern¬ 
ment to prescribe the rules for its own government. These rules as to the number of 
votes necessary to effect an election have varied at different times, sometimes requiring a 
majority of all the members elected to both houses of the legislature, sometimes a ma¬ 
jority only of those present, and in the case under consideration only a plurality. 

Suppose, under the rule first stated, but seventy-nine members had been present in the 
joint meeting, and forty had voted for the same person, would he have been elected; and 


JOHN P. STOCKTON. 


325 


if not, why not? Seventy-nine out of eighty-one would have constituted a quorum,-end 
forty would have been a majority of those present. The only reason why such a vote 
would not have made an election would be the existence of the rule adopted by the joint 
meeting, declaring that ‘ ‘ no candidate should be elected unless receiving a majority of 
the votes of all the members elected to both houses of the legislature. ’ ’ While that rule 
was in force no presiding officer would have thought of declaring a candidate elected, nor 
would any candidate have supposed himself elected because he received a majority of the 
votes cast, unless such majority was a majority of all the members elected to the legis¬ 
lature. Under the other rule, “that a person receiving a majority of the votes of those 
present should be declared elected,” who would doubt the validity of an election by 31 
out of 60 votes if only so many had been cast? If the joint meeting had the right to 
prescribe at one time that it should require a majority of all elected to the legislature to 
elect, at another time that a majority of those present might elect, and at still another 
time that elections might be had by acclamation, it had the right to prescribe that a plu¬ 
rality should elect; and when any candidate received a plurality he thereupon became 
elected, not simply by the will of those who voted for him, but by the will of the joint 
meeting, which had previously, by a majority vote, resolved that such plurality should 
elect. 

It might be urged in this case, with much plausibility, that inasmuch as the constitu¬ 
tion of New Jersey recognizes the two houses in joint meeting as a legislature, that such 
joint meeting was the very body on whom the Constitution of the United States had con¬ 
ferred the power to prescribe ‘ ‘ the times, places, and manner of holding elections for 
Senators;” but your committee prefer placing the authority of the joint meeting to 
prescribe the plurality rule on the broader ground that in the absence of any law, either 
of Congress or the State, on the subject, a joint meeting of the two houses of a legislature, 
duly assembled and vested with authority to elect a United States Senator, has a right 
to prescribe that a plurality may elect, on the principle that the adoption of such a rule 
by a majority vote in the first instance makes the act, subsequently done in pursuance of 
such majority vote, its own. 

The committee recommend for adoption the following resolution: 

Resolved , That John P. Stockton was duly elected and is entitled to his seat as a 
Senator from the State of New Jersey for the term of six years from the 4th day of March, 
1865. 


Thursday, March 22, 1866. 

On motion by Mr. Trumbull, the Senate proceeded to consider the resolution reported 
by the Committee on the Judiciary on the 30th of January, on the right of the Hon. 
John P. Stockton to a seat in the Senate of the United States as a Senator from the State 
of New Jersey; which resolution is as follows: 

“ Resolved , That John P. Stockton was duly elected and is entitled to his seat as a 
Senator from the State of New Jersey for the term of six years from the 4th day of 
March, 1865.” 

On motion by Mr. Clark to amend the resolution in line 1, by inserting after the 
word “was” the word “not,” and after the word “is” the word “not,” and, 

After debate and the consideration of executive business, the Senate adjourned. 

[The debate is found on pages 1564-1573 of the Congressional Globe referred to in 
the head-note. ] 

Friday, March 23, 1866. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary on the 30th of January, on the right of the Hon. John P. Stockton to a 
seat in the Senate of the United States as a Senator from the State of New Jersey; which 
resolution is as follows: 

“ Resolved , That John P. Stockton was duly elected and is entitled to his seat as a 
Senator from the State of New Jersey for the term of six years from the 4th day ot 
March, 1865.” 

After debate, on the question to agree to the amendment proposed by Mr. Clark to 
the resolution, to wit, in line 1 insert after the word “was” the word “not,” and after 
the word “is” the word not,” it was determined in the negative—yeas 19, nays 21. 

On motion by Mr. Clark, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Brown, Chandler, Clark, Conness, 
Cragin, Creswell, Fessenden, Grimes, Howe, Kirkwood, Lane of Indiana, Nye, Pomeroy, 
Ramney, Sherman, Sprague, Sumner, Wade, and Yates. 

Those who voted in the negative are Messrs. Anthony, Buckalew, Cowan, Davis, 
Foster, Guthrie, Harris, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, 
Morgan, Nesmith, Norton, Poland, Riddle, Saulsbury, Stewart, Trumbull, and Willey. 

So the amendment was not agreed to. 


326 


SENATE ELECTION CASES. 


On the question to agree to the resolution, it was determined in the affirmative—yeas' 
22, nays 21. 

On motion hv Mr. Fessenden, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, 
Foster, Guthrie, Harris, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, 
Morgan, Nesmith, Norton, Poland, Riddle, Saulsbury, Stewart, Stockton, Trumbull, 
and Willey. 

Those who voted in the negative are Messrs. Brown, Chandler, Clark, Conness, Cragin, 
Creswell, Fessenden, Grimes, Howe, Kirkwood, Lane of Indiana, Morrill, Nye, Pome¬ 
roy, Ramsey, Sherman, Sprague, Sumner, Wade, Wilson, and Yates. 

So it was 

Resolved , That John P. Stockton was duly elected and is entitled to his seat as a 
Senator from the State of New Jersey for the term of six years from the 4th day of 
March, 1865. 

[The debate is found on pages 1589-1602 of the Congressional Globe referred to in the 
head-note. ] 

Monday, March 26, 1866. 

A motion was made by Mr. Sumner that the Journal of Friday, 23d March, 1866, be 
amended by striking out the vote of Mr. Stockton on the question of his right to a seat 
in the Senate. 

Pending debate thereon, the following message was received, &c. 

******* 

After further debate, 

Mr. Sumner asked and obtained leave of the Senate to withdraw his motion; and, 

The motion having been withdrawn, 

On motion by Mr. Poland that the Senate reconsider its vote on Friday last agreeing 
to the following resolution: 

“j Resolved, That John P. Stockton was duly elected and is entitled to his seat as a 
Senator from the State of New Jersey for the term of six years from the 4th day of 
March, 1865,’ ’ 

It was determined in the affirmative; and 

The question recurring upon said resolution, 

Mr. Sumner, by unanimous consent, submitted the following resolution: 

‘ ‘ Resolved , That the vote of Mr. Stockton be not received in determining the question 
of his seat in the Senate. ’ ’ 

The Senate proceeded, by unanimous consent, to consider the said resolution; and 

On motion by Mr. Sumner that the resolution be referred to the Committee on the 
Judiciary, with instructions to report on Thursday next, it was determined in the neg¬ 
ative—yeas 18, nays 22. 

On motion by Mr. Johnson, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, 
Guthrie, Harris, Hendricks, Johnson, Lane of Kansas, McDougall, Nesmith, Norton, 
Riddle, Saulsbury, Sherman, Trumbull, Van Winkle, and Willey. 

Those who voted in the negative are Messrs. Brown, Chandler, Clark, Conness, Cragin, 
Creswell, Fessenden, Foster, Grimes, Howard, Howe, Kirkwood, Lane of Indiana, Nye, 
Poland, Pomeroy, Ramsey, Sprague, Sumner, Wade, Wilson, and Yates. 

On the question to agree to the resolution, it was determined in the affirmative. 

So it was 

Resolved , That the vote of Mr. Stockton be not received in determining the question 
of his seat in the Senate. 

The question again recurring upon the resolution affirming the right of the Hon. John 
P. Stockton to his seat in the Senate, 

On motion by Mr. Johnson that the further consideration of the resolution be post¬ 
poned to Thursday next, 

After debate, 

On motion by Mr. Trumbull, the Senate adjourned. 

[The debate is found on pages 1635-1648 of the Congressional Globe referred to in the 
head-note. ] 

Tuesday, March 27, 1866. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary, affirming the right of the Hon. John P. Stockton to his seat as a Senator 
rom the State of New Jersey; and 

After debate, 

On the question to agree to the motion, yesterday submitted by Mr. Johnson, that the 


JOHN P. STOCKTON. 327 

further consideration of the resolution be postponed to Thursday next, it was determined 
in the negative—yeas 18, nays 23. 

On motion by Mr. Johnson, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, 
Guthrie, Harris, Hendricks, Johnson, Lane of Kansas, McDougall, Morgan, Nesmith, 
Norton, Riddle, Saulsbury, Trumbull, Van Winkle, and Willey. 

Those who voted in the negative are Messrs. Brown, Chandler, Clark, Conness, Cragiu, 
Creswell, Fessenden, Foster, Grimes, Henderson, Howard, Howe, Kirkwood, Lane of In¬ 
diana, Nye, Pomeroy, Ramsey, Sherman, Sprague, Sumner, Wade, Wilson, and Yates. 

So the motion was not agreed to. 

The question recurring on the resolution, 

On motion by Mr. Clark to amend the resolution by striking out after the word 
“Stockton,” in line 1, the words “was duly elected, and is entitled to his seat as a Sena¬ 
tor from the State of New Jersey for the term of six years from the 4th day of March, 
1865,” and in lieu thereof inserting, “is not entitled to a seat as Senator from the State 
of New Jersey for the term of six years from the 4th day of March, 1865,” 

Mr. Saulsbury raised a question of order, to wit, that the proposed amendment is in 
effect the same proposition which the Senate had once rejected, and was therefore not in 
order. 

The President pro tempore decided that the proposed amendment, being a proposition 
different in its terms from that upon which the Senate had voted, was not open to the 
objection raised, and was in order. 

After debate, 

On motion by Mr. Davis to amend the amendment proposed by Mr. Clark by striking 
out all after the word-in the first line, and in lieu thereof inserting, 

“That the legislature of New Jersey having convened in joint meeting to choose a 
Senator to the Congress of the United States for six years from the 4th of March, 1865, 
and said legislature in such joint meeting having passed an order that such election should 
be made by a plurality vote of that joint meeting; and on the first ballot taken by said 
meeting, John P. Stockton having received 40 out of the 81 votes of the members of both 
houses of the legislature constituting such legislature in such joint meeting, and every 
other person voted for a less number, and the presiding officer of said joint meeting 
having then announced to it that the said John P. Stockton was elected Senator to Con¬ 
gress, and there being no objection or dissent expressed to said annunciation, the said 
John P. Stockton was duly elected a Senator from said State, and is entitled to hold his 
seat as such from the 4th of March, 1865,” 

It was determined in the negative—yeas 15, nays 27. 

On motion by Mr. Clark, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Buckalew, Cowan, Davis, Doolittle, 
Guthrie, Hendricks, Johnson, McDougall, Morgan, Nesmith, Norton, Riddle, Saulsbury, 
Van Winkle, and Willey. 

Those who voted in the negative are Messrs. Anthony, Brown, Chandler, Clark, Con¬ 
ness, Cragin, Creswell, Fessenden, Grimes, Harris, Henderson, Howard, Howe, Kirk¬ 
wood, Lane of Indiana, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Sumner, 
Trumbull, Wade, Williams, Wilson, and Yates. 

The question recurring on the amendment proposed by Mr. Clark, 

On motion by Mr. McDougall that the further consideration of the resolution be post¬ 
poned to Wednesday next at 1 o’clock, it was determined in the negative—yeas 15, 
nays 28. 

On motion by Mr. McDougall, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Buckalew, Cowan, Davis, Doolittle, 
Guthrie, Hendricks, Johnson, McDougall, Morgan, Nesmith, Norton, Riddle, Saulsbury, 
Van Winkle, and Willey. 

Those who voted in the negative are Messrs. Anthony, Brown, Chandler, Clark, Con¬ 
ness, Cragin, Creswell, Fessenden, Foster, Grimes, Harris, Henderson, Howard, Howe, 
Kirkwood, Lane of Indiana, Nye, Poland, Pomeroy, Ramsey, Sherman, Sprague, Sum¬ 
ner, Trumbull, Wade, Williams, Wiison, and Yates. 

On the question to agree to the amendment, it was determined in the affirmative—yeas 
22, nays 21. 

On motion by Mr. Clark, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Brown, Chandler, Clark, Conness, 
Cragin, Creswell, Fessenden, Grimes, Howard, Howe, Kirkwood, Lane of Indiana, Nye, 
Pomeroy, Ramsey, Sherman, Sprague, Sumner, Wade, Williams, Wilson, and Yates. 

Those who voted in the negative are Messrs. Anthony, Buckalew, Cowan, Davis, Doo- 



328 


SENATE ELECTION CASES. 


little, Guthrie, Harris, Henderson, Hendricks, Johnson, Lan*3 of Kansas, McDougall, 
Morgan, Nesmith, Norton, Poland, Riddle, Saulsbury, Trumbull, Van Winkle, and 
Willey. 

So the amendment was agreed to; and 

On the question to agree to the resolution as amended, it was determined in the affirm¬ 
ative—yeas 23, nays 20. 

On motion by Mr. Hendricks, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Brown, Chandler, Clark, Conness, Cra- 
gin, Creswell, Fessenden, Grimes, Howard, Howe, Kirkwood, Lane of Indiana, Nye, 
Pomeroy, Ramsey, Riddle, Sherman, Sprague, Sumner, Wade, Williams, Wilson, and 
Yates. 

Those who voted in the negative are Messrs. Anthony, Buckalew, Cowan, Davis, Doo¬ 
little, Guthrie, Harris, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, 
Morgan, Nesmith, Norton, Poland, Saulsbury, Trumbull, Van Winkle, and Willey. 

So it was 

Resolved , That John P. Stockton is not entitled to a seat as Senator from the State of 
New Jersey for the term of six years from the 4th day of March, 1865. 

On motion by Mr. Clark that the vote on the passage of the said resolution be recon¬ 
sidered, 

On motion by Mr. Hendricks that the further consideration of the motion to recon¬ 
sider be postponed to to-morrow at 1 o’clock, it was determined in the negative—yeas 
21, nays 22. 

On motion by Mr. Hendricks, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, 
Doolittle, Guthrie, Harris, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, 
Morgan, Nesmith, Norton, Poland, Riddle, Saulsbury, Trumbull, Van Winkle, and 
Willey. 

Those who voted in the negative are Messrs. Brown, Chandler, Clark, Conness, Cragin, 
Creswell, Fessenden, Grimes, Howard, Howe, Kirkwood, Lane of Indiana, Nye, Pom¬ 
eroy, Ramsey, Sherman, Sprague, Sumner, Wade, Williams, Wilson, and Yates. 

On the question to agree to the motion of Mr. Clark, to reconsider the vote on the 
passage of the resolution, it was determined in the negative—yeas 20, nays 22. 

On motion by Mr. Clark, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Anthony, Buckalew, Cowan, Davis, 
Doolittle, Guthrie, Henderson, Hendricks, Johnson, Lane of Kansas, McDougall, Mor¬ 
gan, Nesmith, Norton, Poland, Riddle, Saulsbury, Trumbull, Van Winkle, and Willey. 

Those who voted in the negative are Messrs. Brown, Chandler, Clark, Conness, Cragin, 
Creswell, Fessenden, Grimes, Harris, Howard, Howe, Kirkwood, Lane of Indiana, Nye, 
Pomeroy, Ramsey, Sherman, Sprague, Sumner, Wade, Williams, Wilson, and Yates. 

So the Senate refused to reconsider its vote on the passage of the resolution. 

[The debate is found on pages 1666-1679 of the Congressional Globe referred to in the 
head-note.] 


DAVID T. PATTERSON, 


329 


[Thirty-ninth Congress—First session.] 

DAVID T. PATTERSON, 

Senator from Tennessee from 1866, to March 3, 1869. 


July 26,1866, the credentials of Mr. Patterson, elected to fill the unexpired portion of the term be¬ 
ginning March 4,1863, were presented and referred to the Committee on the Judiciary, who were 
instructed to inquire into his qualifications. The following day the committee reported that the 
only question in relation to his qualifications arose from the fact of his having held the office of 
circuit judge in the State of Tennessee after that State had passed an ordinance of secession; that 
his first term of said office having expired after the ordinance of secession was passed, he was in¬ 
duced by Union men to become a candidate for re-election, and was re-elected in May, 1862; that he 
was himself a “firm, avowed, and influential Union man ; ” that he allowed himself to become a 
candidate for re-election “solely upon the motive that he could thereby afford some aid and pro¬ 
tection to the Union people; ” that the constitution and judicial system of Tennessee remained the 
same after the secession of the State as before, and that no law was enforced by him as judge except 
such as were in force before the secession of the State. The committee recommend the adoption of 
a resolution that Mr. Patterson was duly qualified and entitled to hold the seat. During debate on 
the adoption of the resolution reported by the committee, a joint resolution was introduced in the 
Senate that Mr. Patterson be admitted upon his taking so much of the oath prescribed by the act of 
July 2,1862, as is not included in the words, “that I have neither sought, nor accepted, nor attempted 
to exercise the functions of any office whatever, under any authority or pretended authority in hos¬ 
tility to the United States.” This joint resolution passed the Senate, but was laid ok the table in 
the House the same day. The Senate then passed the resolution reported by the committee, it hav¬ 
ing been amended so as to read, "‘Resolved, That the Hon. David T. Patterson, upon taking the oaths 
required by the Constitution and laws, be admitted to a seat in the Senate of the United States.” 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journals, lstsess. 39th Cong., and the report of the committee, from Senate Re¬ 
ports, 1st sess. 39th Cong., volume 1, No. 139. 

Special references to the debates of each day are inserted below. 


Thursday, July 26, 1866. 

Mr. Fowler presented the credentials of the Hon. David T. Patterson, elected a Senator 
by the legislature of the State of Tennessee for the unexpired term of six years com¬ 
mencing on the 4th day of March, 1863. 

The credentials were read. 

On motion by Mr. Sumner that the credentials be referred to the Committee on the 
Judiciary with instructions to inquire into the qualifications of Mr. Patterson, 

After debate, it was determined in the affirmative—yeas 26, nays 14. 

On motion by Mr. Sumner, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Brown, Chandler, Conness, Creswell, 
Edmunds, Fessenden, Foster, Harris, Henderson, Howard, Howe, Kirkwood, Morgan, 
Morrill, Nye, Poland, Pomeroy, Ramsey, Ross, Sprague, Stewart, Sumner, Trumbull, 
Wade, Williams, and Wilson. 

Those who voted in the negative are Messrs. Buckalew, Cowan, Davis, Doolittle, Guth¬ 
rie, Hendricks, Johnson, Lane, McDougall, Nesmith, Norton, Sherman, Van Winkle, and 
Willey. 

So it was 

Ordered , That the credentials be referred to the Committee on the Judiciary with in¬ 
structions to inquire into the qualifications of Mr. Patterson. 

[The debate is found on pages 4162-4169 of the Congressional Globe referred to in the 
head-note. ] 

FRIDAY, July 27, 1866. 

Mr. Poland, from the Committee on the Judiciary, to whom were referred the creden¬ 
tials of the Hon. David T. Patterson, elected a Senator by the legislature of the State of 
Tennessee, with instructions to inquire into the qualifications of Mr. Patterson, submitted 
a report (No. 139) accompanied by the following resolution: 

“ Resolved , That the Hon. David T. Patterson is duly qualified and entitled to hold a 
seat in the Senate of the United States from the State of Tennessee. ” 

The Senate proceeded to consider the said resolution; and, 

On motion by Mr. Clark to amend the resolution by striking out all after the word 
“ resolved,” and inserting in lieu thereof the following: 

“That the Hon. David T. Patterson, upon taking the oaths required by the Constitu¬ 
tion and laws, be admitted to a seat in the Senate of the United States,” 

It was determined in the affirmative; ard, 

After debate, 


330 


SENATE ELECTION CASES. 


Ordered , That the farther consideration of the resolution be postponed to to-morrow. 

Ordered , That the report be printed. 

[The debate is found on pages 4213-4216 of the Congressional Globe referred to in the 
head-note. ] 

******* 

Mr. Trumbull asked, and by unanimous consent obtained, leave to bring in a joint 
resolution (S. 144) in relation to the admission of the Hon. David T. Patterson to a seat 
in the Senate; which was read the first and second times by unanimous consent, and con¬ 
sidered as in Committee of the Whole; and no amendment being made, it was reported 
to the Senate. 

Ordered , That the resolution be engrossed and read a third time. 

The said resolution was read the third time, by unanimous consent. 

On the question, Shall the resolution pass? it was determined in the affirmative—yeas 
35, nays 2. 

On motion by Mr. Wade, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Anthony, Buckalew, Clark, Conness, 
Cowan, Creswell, Davis, Doolittle, Edmunds, Foster, Fowler, Guthrie, Harris, Hender¬ 
son, Hendricks, Howe, Johnson, Kirkwood, Lane, Morgan, Nesmith, Norton, Nye, Poland, 
Pomeroy, Ramsey, Riddle, Sherman, Stewart, Trumbull, Van Winkle, Willey, Williams, 
Wilson, and Yates. 

Those who voted in the negative are Messrs. Chandler and Wade. 

So it was 

Resolved , That the resolution pass, and that the title thereof be as aforesaid. 

[This joint resolution was laid on the table in the House.] 

[The debate and joint resolution are found on page 4219 of the Congressional Globe 
referred to in the head-note. ] 

******* 

On motion by Mr. Poland, the Senate resumed the consideration of the resolution 
reported by the Committee on the Judiciary for the admission of the Hon. David T. 
Patterson to a seat in the Senate from the State of Tennessee; and, 

On the question to agree to the resolution as amended, on the motion of Mr. Clark, 

After debate, it was determined in the affirmative—yeas 21, nays 11. 

On motion by Mr. Sumner, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Buckalew, Cowan, Davis, Doolittle, 
Edmunds, Fessenden, Foster, Guthrie, Harris, Henderson, Howe, Johnson, Kirkwood, 
Lane, Norton, Poland, Riddle, Sherman, Van Winkle, Willey, and Williams. 

Those who voted in the negative are Messrs. Chandler, Creswell, Howard, Nye, Pomeroy, 
Ramsey, Ross, Sumner, Trumbull, Wade, and Yates. 

So it was 

Resolved , That the Hon. David T. Patterson, upon taking the oaths required by the 
Constitution and laws, be admitted to a seat in the Senate of the United States. 

[The debate is found on pages 4242-4245 of the Congressional Globe referred to in the 
head-note. ] 

Saturday, July 28, 1866. 

The Hon. David T. Patterson, elected a Senator by the legislature of the State of Ten¬ 
nessee for the unexpired term ending March 3, 1869, appeared, and the oaths prescribed 
by law being administered by the President pro tempore to Mr. Patterson, he took his 
seat in the Senate. 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Trumbull (chairman), Harris, Clark, Johnson, 
Poland, Stewart, and Hendricks.] 

In the Senate of the United States. 

July 27, 1866.—Submitted. 

July 28, 1866.—Ordered to be printed. 

Mr. Poland submitted the following report: 

The Committee on the Judiciary, to whom were referred the credentials of Hon. David 
T. Patterson, Senator-elect from the State of Tennessee, with instructions to report 
whether said Patterson is legally qualified to hold the office of United States Senator 


DAVID T. PATTERSON. 331 

from said State, have had the same under consideration, and respectfully report as fol¬ 
lows: 

The only question in relation to the qualifications of Mr. Patterson, or his right to hold 
his seat in the Senate, arises from the fact of his having held the office of circuit judge 
in the State of Tennessee after that State had passed an ordinance of secession and be¬ 
come a member of the confederacy. 

Circuit judges in Tennessee are elected by the people of the several circuits, and hold 
their offices for the term of eight years. 

Judge Patterson was elected judge in one of the circuits in Eastern Tennessee in May, 
1854, and his term of office had not expired when the State passed the ordinance of seces¬ 
sion. The constitution of the State of Tennessee remained the same after the secession 
of the State as before, and there was no change made in the form of the State govern¬ 
ment, or in their judicial system. A large majority of the people of East Tennessee were 
ardently devoted to the Union and deemed it very important for their interest and that 
of the Union cause that the civil offices in that section of the State should be filled with 
Union men. 

Judge Patterson was a firm, avowed, and influential Union man, and he was urgently 
pressed by the Union men of that circuit to run as a candidate for re-election as circuit 
judge, and he finally, though reluctantly, consented to do so. The opposing candidate 
was an avowed secessionist, and the issue in the election was between Union and seces¬ 
sion. The election was held in May, 1862, and Judge Patterson was elected over his 
rebel competitor by a large majority. At the same election most of the local offices 
in that section were filled by the election of Union men. At that time it was believed 
by the Union men of East Tennessee that they would soon be relieved from rebel mili¬ 
tary rule by the arrival of Union forces; and they desired also to retain the civil power 
in their own hands. In this expectation they were disappointed, and soon rebel bands 
were scattered through that region, and the Union people were subjected to great hard¬ 
ships and cruel oppression. When Judge Patterson was thus re-elected judge he did 
not suppose he would be commissioned by the governor of the State, who was a seces¬ 
sionist; but, after some considerable delay, a commission was sent to him with peremp¬ 
tory orders to take the oath. On the receipt of his commission and order to take the 
oath, Judge Patterson delayed and hesitated, and consulted other leading Union men 
as to the proper course for him to take. They advised and urged him to take the oath; 
that he could thereby afford protection to some extent to Union men against acts of law¬ 
less violence on the part of the rebels, and that if he did not accept the office and take 
the oath the office would be filled by a rebel, and they would then be oppressed by the 
civil as well as the military power of the rebels. Judge Patterson yielded to their 
urgency and arguments, and went before a magistrate and took the oath which the Ten¬ 
nessee legislature had prescribed, which, in substance, was that he would support the 
constitution of Tennessee and the constitution of the Confederate States. Judge Patter¬ 
son declared at the time to the magistrate that he owed no allegiance to the confederate 
government, and that he did not consider that part of the oath as binding him at all. 
At this time there were rebel troops in the neighborhood, and Judge Patterson had good 
reason to believe that his refusal to take the oath would subject him to arrest and im¬ 
prisonment, if not worse treatment; but we do not find that he was actuated at all by 
personal considerations, but acted solely upon the motive that he could thereby afford 
some aid and protection to the Union people, and also prevent the office from falling into 
hands that would use it to oppress them. 

East Tennessee at this time was in a very disturbed and distracted condition. The 
country was full of bands of armed rebels, and lawless violence held sway. Business 
was nearly suspended, and no civil business was done in the courts. Judge Patterson 
held a few terms of court in counties where he could organize grand juries of Union 
men, and in this way did something toward preserving peace and order in the com¬ 
munity. No other business was done by him asjudge after his election in 1862. 

During all this time Judge Patterson was an open, avowed, and devoted adherent to 
the Union. He was in constant communication with the officers of the Federal troops 
nearest that vicinity, and obtained and furnished to them information as to the move¬ 
ments of the rebels. He aided in concealing Union men, and in facilitating their escape 
to the Union lines, when they generally entered the Union service. He aided the Union 
people and the Union cause in every way open to him, and too numerous for detail. By 
these means he became amenable to the hostility of the secessionists, and was subjected 
to great difficulty aud danger. He was several times arrested and held for some time in 
custody. At times he was obliged to conceal himself for safety, and spent nights in out¬ 
buildings and in the woods to avoid their vengeance. 

In September, 1863, the Federal troops reached Knoxville, and Judge Patterson suc¬ 
ceeded in escaping with his family to that place, and did not return to his home until 
after the close of the rebellion. 


332 


SENATE ELECTION CASES. 


As before stated, the constitution and election laws and judicial system of Tennessee 
remained the same after the secession of the State as before, and Judge Patterson was 
elected judge the last time under the same State constitution and laws as existed at his 
first election, and no laws were enforced by him as judge except such as were in force 
before the secession of the State. 

The committee are all satisfied that during the entire rebellion Judge Patterson was 
an earnest, firm, and devoted Union man, and suffered severely in support of his princi¬ 
ples. In accepting the office of judge, and taking the official oath, he did not intendany 
hostility to the authority or Government of the United States, nor did he intend to ac- 
knowlege any allegiance to, or any friendship for, the confederate government, but acted 
throughout with a sincere desire to benefit and preserve the Union and the Government 
of the United States. He always denied the authority of the confederate government 
over him, and feels an entire willingness and ability to take the oath required upon his 
admission to a seat in the Senate. The committee recommend the following resolution: 

Resolved, That the Hon. David T. Patterson is duly qualified and entitled to hold a 
seat in the Senate of the United States as a Senator from the State of Tennessee. 


PHILIP F. THOMAS. 


QOO 

O,).) 


[Fortieth Congress—First and second sessions.] 

PHILIP F. THOMAS, 

of Maryland. 


March 18, 1867, the credentials of Mr. Thomas, elected for the term beginning March 4, 1867, were 
presented. The following day the credentials were referred to the Committee on the Judiciary, 
who were authorized by a resolution of March 20 to send for persons and papers. December 18, 
the committee submitted the evidence taken, and reported that they found nothing sufficient to 
debar Mr. Thomas from his seat unless it be found in the fact of his son having entered the service 
of the confederacy, and in the circumstances connected therewith, in regard to which point the com¬ 
mittee express no opinion. A resolution was then submitted that Mr. Thomas be admitted to the 
seat. February 20,1868, the Senate resolved that Mr. Thomas “ having voluntarily given aid, coun¬ 
tenance, and encouragement to persons engaged in armed hostility to the United States” was not 
entitled to take the oath of office or hold the seat. Some Senators maintained that in a case ot 
doubt, where there is absence of evidence showing conclusively that a person had thus voluntarily 
given aid, &c., the person should be admitted if willing to take the oath of office. Extracts from 
speeches given below show the conduct of Mr. Thomas which was claimed to be “voluntarily 
giving aid,” &c. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journals, 40th Cong.; the report of the committee from Senate Reports, 40th 
Cong., 2d sess., No. 5, with the exception of the evidence and documents printed with it; and ex¬ 
tracts from speeches from Congressional Globe, 2d sess. 40th Cong., part 1, page 679, and part 2, 
page 1145. 

Special references to the debates of each day are inserted below. . 


Monday, March 18, 1867. 

Mr. Johnson presented the credentials of the Hon. Philip F. Thomas, elected a Sen¬ 
ator by the legislature of the State of Maryland for the term of six years commencing 
on the 4th day of March, 1867; which were read. 

On motion by Mr. Howard that the credentials be referred to the Committee on the 
Judiciary, 

After debate, 

On motion by Mr. Grimes, 

Ordered , That the further consideration of the motion be postponed to to-morrow. 

[The debate is^ found on pages 171-180 of the Congressional Globe, 1st sess. 40th 
Cong.] 

Tuesday, March 10, 1867. 

The Senate resumed the consideration of the motion of Mr. Howard of yesterday, to 
refer the credentials of the Hon. Philip Francis Thomas, elected a Senator by the legis¬ 
lature of the State of Maryland, for the term commencing on the 4th day of March, 
1867, to the Committee on the Judiciary; and the motion was agreed to. 

Wednesday, March 20, 1867. 

Mr. Howard submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

“ Resolved , That the Committee on the Judiciary, to whom have been referred the 
credentials of Hon. P. F. Thomas, lately chosen a Senator of the United States by the 
legislature of Maryland, be authorized to send for persons and papers for the purposes 
of said reference. ’ ’ 

Wednesday, March 27, 1867. 

Mr. Howard presented a letter from the president of the National Bank of Commerce 
of New York, addressed to him, accompanied by the annual statement to the sharehold¬ 
ers of the Bank of Commerce, in New York, May 12, 1862; which was referred to the 
Committee on the Judiciary. 

[A statement by Mr. Howard is found on page 372 of the Congressional Globe, 1st 
sess. 40th Cong. ] 

Tuesday, April 2, 1867. 

Mr. Johnson presented a letter addressed to him by the Hon. I hilip F. Thomas, Sen¬ 
ator-elect from the State of Maryland, relating to a report of thf Bank of Commerce to 
their shareholders, dated March 12, 1862, and presented to the Senate on the 27th of 
March last by the Hon. Mr. Howard; which, with the accompanying papers, was re¬ 
ferred to the Committee on the Judiciary. 

[The debate is found on pages 821-824 of the Congressional Globe, 1st sess. 40th 
Cong.] 


334 


SENATE ELECTION CASES. 


Wednesday, December 18, 1867. 

Mr. Johnson, from the Committee on the Judiciary, to whom were referred on the 20th 
of March last the credentials of Philip F. Thomas, Senator-elect from the State of Mary¬ 
land, beg leave to report: 

That they have taken the evidence submitted herewith, and that they find nothing 
sufficient, in the opinion of the committee, to debar said Thomas from taking his seat, 
unless it be found in the fact of the son of said Thomas having entered the military 
service of the confederacy, and in the circumstances connected with that fact or 
relating to it, and without the expression of an opinion in regard to this point, they re¬ 
port the whole evidence to the Senate. 

[The committee consisted of Messrs. Trumbull, Stewart, Frelinghuysen, Edmunds, 
Conkling, Johnson, and Hendricks.] 

On motion by Mr. Johnson, 

Ordered , That the report and accompanying evidence be printed. 

Mr. Johnson submitted the following resolution for consideration: 

‘ 1 Resolved, That the Hon. Philip F. Thomas, Senator-elect from Maryland, be admitted 
to his seat on his taking the oaths prescribed by the Constitution and laws of the United 
States.’ ’ 

Ordered, That it lie on the table, and be printed. 


Monday, January 6, 1868. 

On motion by Mr. Johnson, the Senate proceeded to consider the resolution submitted 
by him on the 18th of December, to admit Philip F. Thomas, a Senator-elect from the 
State of Maryland, to his seat in the Senate; and, 

After debate, 

Ordered, That the further consideration of the resolution be postponed to to-mor¬ 
row. 

[The debate is found on pages 320-330 of the Congressional Globe, part 1, 2d sess. 
40th Cong.] 


Monday, January 20, 1868. 

The Senate resumed the consideration of the resolution submitted by Mr. Johnson on 
the 18th of December, to admit Philip F. Thomas, Senator-elect from the State of Mary¬ 
land, to his seat in the Senate; and, 

After debate, and the consideration of executive business, the Senate adjourned. 

[The debate is found on pages 632-635 of the Congressional Globe, part 1, 2d sess. 
40th Cong.] 

Tuesday, January 21, 1868. 

The Senate resumed, &c. 

[The debate is found on pages 653 -662 of the Congressional Globe, part 1, 2d sess. 
40th Cong.] 

Wednesday, January 22, 1868. 

The Senate resumed, &c. 

[The debate is found on pages 678-686 of the Congressional Globe, part 1, 2d sess. 
40th Cong.] 

Wednesday, Februarg 12, 1868. 

The Senate resumed, &c. 

Thursday, February 13, 1868. 

The Senate resumed the consideration of the resolution submitted by Mr. Johnson on 
the 18tb December last, to admit Philip F. Thomas, Senator-elect from the State of 
Maryland, to his seat in the Senate. 

On motion by Mr. Sumner to amend the resolution by striking out all after the word 
“resolved,” and inserting in lieu thereof the following: 

“ That Philip F. Thomas, Senator-elect from Maryland, cannot be admitted to take 
the oath of office required by the Constitution and laws, inasmuch as he allowed his 
minor son to leave the paternal house to serve as a rebel soldier, and gave him at the 
time $100 in money, all of which was ‘aid,’ ‘countenance,’ or ‘encouragement’ to 
the rebellion, which he was forbidden to give; and further, inasmuch as in forbearing 
to disclose and make known the treason of his son to the President, or other proper 
authorities, according to the requirement of the statute in such cases, he was guilty of 
misprision of treason as defined by existing law,” 

After debate, the Senate adjourned. 

[The debate is found on pages 1144-1156 of the Congressional Globe, part 2, 2d sess. 
40th Cong.] 


PHILIP F. THO'IAS. 


335 


Friday, February 14, 1868. 

The Senate resumed, &c. 

[The debate is found on pages 1165-1177 of the Congressional Globe, part 2, 2d sess. 
40th Cong.] 

MONDAY, February 17, 1868. 

The Senate resumed, &c. 

[The debate is found on pages 1205-1210 of the Congressional Globe, part 2, 2d sess. 
40th Cong.] 

Tuesday, February 18, 1S68. 

The Senate resumed, &c. 

[The debate is found on pages 1232-1243 of the Congressional Globe, 2d sess. 40th 
Cong.] 

WEDNESDAY, February 19, 1868. 

The Senate resumed the consideration of the resolution submitted by Mr. Johnson, on 
the 18th of December last, to admit Philip F. Thomas, Senator-elect from the State of 
Maryland, to his seat in the Senate; and the question being on the amendment proposed 
by Mr. Sumner to the resolution, 

After debate, 

Mr. Sumner withdrew his amendment to the said resolution. 

On motion by Mr. Conkling to amend the resolution by striking out all after the word 
‘‘ resolved , 1 ’ and inserting in lieu thereof: 

“That, in the judgment of the Senate, Philip F. Thomas, Senator-elect from Mary¬ 
land, cannot with truth take the oath prescribed by the act of Congress approved July 
2, 1862, and that therefore he be not allowed to take said oath,” 

After further debate, 

Mr. Conkling withdrew his amendment to the said resolution; and 

The question then recurred on agreeing to the resolution submitted by Mr. Johnson; 
and 

After further debate, it was determined in the negative—yeas 21, nays 28. 

On motion by Mr. Drake, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Anthony, Bayard, Buckalew, Cole, 
Davis, Dixon, Doolittle, Fessenden, Frelinghuysen, Grimes, Hendricks, Johnson, Nor¬ 
ton, Patterson of Tennessee, Ross, Saulsbury, Tipton, Trumbull, Van Winkle, Willey, 
and Williams. 

Those who voted in the negative are Messrs. Cameron, Cattell, Chandler, Conkling, 
Conness, Corbett, Cragin, Drake, Ferry, Fowler, Harlan, Henderson, Howard, Morgan, 
Morrill of Maine, Morrill of Vermont, Morton, Patterson of New Hampshire, Pomeroy, 
Ramsey, Sherman, Sprague, Stewart, Sumner, Thayer, Wade, Wilson, and Yates. 

So the resolution was not agreed to; and 

Thereupon 

Mr. Drake submitted the following resolution for consideration: 

“Resolved , That Philip F. Thomas, having voluntarily given aid, countenance, and 
encouragement to persons engaged in armed hostility to the United States, is not entitled 
to take the oath of office as a Senator of the United States from the State of Maryland, 
or to hold a seat in this body as such Senator; and that the President pro tempore of the 
Senate inform the governor of the State of Maryland of the action of the Senate in the 
premises.” 

The Senate proceeded to consider the said resolution; and 

On the question to agree thereto, it was determined in the affirmative—yeas 27, nays 20. 

On motion by Mr. Drake, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Cameron, Cattell, Chandler, Conkling, 
Conness, Corbett, Drake, Ferry, Fowler, Harlan, Henderson, Howard, Morgan, Morrill of 
Maine, Morrill of Vermont, Morton, Patterson of New Hampshire, Pomeroy, Ramsey, 
Sherman, Sprague, Stewart, Sumner, Thayer, Wade, Wilson, and Yates. 

Those who voted in the negative are Messrs. Anthony, Bayard, Buckalew, Cole, Davis, 
Dixon, Doolittle, Fessenden, Frelinghuysen, Hendricks, Johnson, Norton, Patterson of 
Tennessee, Ross, Saulsbury, Tipton, Trumbull, Van Winkle, Willey, and Williams. 

So it was 

Resolved, That Philip F. Thomas, having voluntarily given aid, countenance, and 
encouragement to persons engaged in armed hostility to the United States, is not entitled 
to take the oath of office as a Senator of the United States from the State of Maryland, 
or to hold a seat in this body as such Senator; and that the President pro tempore of the 


33G 


SENATE ELECTION CASES. 


Senate inform the governor of the State of Maryland of the action of the Senate in the 
premises. 

[The debate is found on pages 1260-1271 of the Congressional Globe, part 2, 2d sess. 
40th Cong.] 

[Extract from remarks of Mr. Doolittle, of Wisconsin, in support of the right of Mr. Thomas, deliv¬ 
ered in the Senate January 22,1868, and found on page 679 of the Congressional Globe, part 1, 2d 
sess. 40th Cong.] 

“ Now, Mr. President, the two facts which are relied upon by those who oppose the 
admission of Mr. Thomas are these: First, that he resigned his office in the Cabinet of 
Mr. Buchanan; and second, that when his son left him to join the rebellion, he gave his 
son $100 in money. I maintain that both of those facts are susceptible of a double con¬ 
struction. I admit you may give a construction to either of them which would tend to 
show his guilt, that he sympathized with or countenanced the rebellion; but I maintain, 
on the other hand, that both of those facts are entirely consistent with his innocence. 
Take the first fact, the fact of his resignation. It is said that he resigned his position in 
the Cabinet of Mr. Buchanan because he did not believe with Mr. Buchanan that he had 
a right to maintain a military force in the harbor of Charleston. That is what is alleged. 
Suppose that to be true; does that show that Mr. Thomas was in favor of the rebellion? 
It shows that Mr. Thomas had a wrong opinion as to the power of this Government. It 
shows that Mr. Thomas was of opinion that the Government either had not the power 
or that it would be against good policy for the Government to exert the power by force 
to hold the harbor of Charleston. 

‘ ‘ Do we not know it to be a fact that hundreds and thousands of men from their edu¬ 
cation were led to believe and did believe that the Government of the United States had 
not the power by force of arms to hold a State in the Union ? The great mass, I may 
say, of the Southern people were educated in that belief. I have no doubt that a great 
many persons in the State of Maryland were educated in that belief, and had been for a 
whole generation. The right of a State to separate from the Union was a doctrine which 
had been inculcated in all the States of the South, in the universities of the South, in 
the pulpits of the South, in the press of the South. I may say that a whole generation 
had been reared under the trainings and teachings of that very doctrine, that a State had 
a right to withdraw itself from the Union, and that the allegiance which the citizen 
owed in any State was an allegiance to the State first, and to the Union afterward. I 
agree that this is a most fatal heresy, a heresy which led to this rebellion, and which 
bathed the whole land in blood, costing the South two hundred thousand or three hun¬ 
dred thousand of the lives of their ablest and strongest and best, and costing us half a 
million more. But, sir, it was an opinion entertained by many, and even if Mr. Thomas 
entertained that opinion I maintain that the holding of that opinion was not of itself 
treasonable. It did not make him guilty in any respect of the crime of treason, unless 
he gave his countenance and support to the rebellion. 

“What does he say in this letter of resignation? He says that he is not able to con¬ 
cur in the views entertained by President Buchanan ‘ touching the authority, under 
existing laws, to enforce the collection of the customs at the port of Charleston. ’ He 
states to Mr. Buchanan that he does not agree with him in opinion, and for that reason 
he proposes to withdraw from the Cabinet. Is there in that fact anything which goes 
to show that Mr. Thomas was in favor of the rebellion ? No, sir. It may show that Mr. 
Thomas did not believe that we had the power by force of arms then to enforce the col¬ 
lection of the revenues in the harbor of Charleston. You remember that as long ago as 
1833 a question arose about enforcing the revenue laws in the harbor of Charleston, and 
the celebrated force bill was brought forward and passed in 1832 or 1833,1 believe. But 
that law was not standing upon the statute-book in 1860. That law was only temporary, 
and Mr. Thomas may have been of the opinion that it required new legislation on the 
part of Congress before you could resort to force to collect the duties in the harbor of 
Charleston; and because he disagreed with Mr. Buchanan, rather than embarrass him 
he tendered his resignation and retired from the Cabinet. I insist that this act of Mr. 
Thomas is susceptible of a construction in accordance with his entire innocence of any 
connection with the rebellion. 

‘ ‘ Then, as to the other fact—the fact that he gave to his son on the morning when he 
left home $100 in money—I agree that if he gave that money to his son with a view to 
aid him on his way to the rebellion it would be susceptible of a construction which 
would make him guilty of aiding the rebellion. But, sir, what are the facts stated ? His 
son states that he had made his arrangements to go, that he had determined to go, that 
he informed his father that he was then ready to go, and would go. The father told him 
the ground, and the only ground, upon which he gave him this money. It was not to 
aid him to go to the rebellion, but that in case he was imprisoned or in suffering he 
might have a sum of money with him. It was the prompting of his paternal heart, 


PHILIP F. THOMAS. 


337 


vhile with tears in his eyes he was protesting against his son going. I submit that this 
is susceptible of two constructions; and if it be susceptible of two constructions, one of 
which is consistent with his innocence, we are bound, in the ordinary charity which 
administers justice among men, to give to it the innocent rather than the guilty con¬ 
struction. 

“Mr. President, we may establish here a precedent of the most dangerous character. 
When the person elected, against whose veracity I believe no one has ever raised a ques¬ 
tion, whose private character as an individual stands above reproach, comes here and is 
ready in the presence of this Senate and of Almighty God to put his hands upon the Gos¬ 
pels and take the oath that he never did countenance or aid the rebellion in any way 
whatever, I say, in the absence of any evidence which goes to show conclusively, against 
any reasonable doubt, that he is guilty, we are bound to receive him. We tender this 
oath to him; we make him the witness in the case. In equitable proceedings, if a party 
chooses to make the other party his witness, he is bound by his testimony. And I say 
if we choose to put this oath to the applicant and call him here to swear whether he is 
loyal to the Government of the United States or not, and if he is willing to do it, know¬ 
ing him as we do, his character as it stands before us being above reproach as an indi¬ 
vidual, what right have we not to believe the statement which he makes if the facts 
which appear are susceptible of a construction in accordance with innocence rather than 
with guilt?’* 

rExtract from remarks of Mr. Sumner, of Massachusetts, against the right of Mr. Thomas, delivered 

In the Senate February 13,1868, and found in the Congressional Globe, part 2, 2d sess. 40th Cong., 

page 1145.] 

“A great debate on the question how loyalty shall be secured in the rebel States is for 
the time silenced in order to consider how loyalty shall be secured in this Chamber 
Everywhere in the rebel States disloyal persons are struggling for power; and now at the 
door of the Senate we witness a similar struggle. If disloyalty cannot be shut out of this 
Chamber, how can we hope to overcome it elsewhere ? 

“More than once at other times I have discussed the question of loyalty in the Senate. 
But this was anterior to the adoption of the fourteenth constitutional amendment. The 
case is plainer now than then, inasmuch as there is now an explicit text requiring loyalty 
as a ‘ qualification. ’ Formerly we were left to something in the nature of inference; now 
the requirement is plain as language can make it. By the new amendment it is provided 
that ‘ no person shall be a Senator or Representative in Congress who, having previously 
aken an oath as a member of Congress, or as an officer of the United States, to support 
the Constitution of the United States, shall have engaged in insurrection or rebellion 
against the same, or given aid or comfort to the enemies thereof. ’ 

4 ‘ These words are precisely applicable to the present case. They lay down a rule from 
which there is no appeal; and this rule is not merely in the statutes, but in the Constitu¬ 
tion. It is the plain declaration that loyalty is a requirement in a Senator and Repre¬ 
sentative. If we do not apply it to ourselves now it is difficult to see with what consistency 
we can apply it to others. Your course here will affect the meaning of this constitutional 
amendment, if not its validity for the future. 

“I do not stop to argue the question, if that amendment is now a part of the Consti¬ 
tution; for I would not unnecessarily occupy your time, nor direct attention from the 
case which you are to decide. For the present I content myself with two remarks: first, 
the amendment has already been adopted by three-fourths of the States that took part in 
proposing it, and this is enough, for the spirit of the Constitution is thus satisfied; and, 
secondly, it has already been adopted by 4 the legislatures of three-fourths of the several 
States ’ which have legislatures, thus complying with the letter of the Constitution. 
Therefore by the spirit of the Constitution, and also by its letter, this amendment is now 
a part of the Constitution, binding on all of us. As such I invoke its application to this 
case. In face of this positive peremptory requirement it is impossible to see how loyalty 
can be other than a ‘ qualification. ’ In denying it you practically set aside this amend¬ 
ment. 

‘ ‘ But even without this amendment, I cannot doubt that the original text is sufficiently 
clear and explicit. It is nowhere said in the Constitution that certain specified require¬ 
ments and none others shall be ‘ qualifications ’ of Senators. The word ‘ qualifications, ’ 
which plays such a part in this case, occurs in another connection, where it is provided 
that ‘each House shall be the judge of the elections, returns, and qualifications of its own 
members. ’ What these ‘ qualifications ’ may be is to be found elsewhere. Searching the 
Constitution from beginning to end we find three ‘ qualifications, ’ which come under the 
head of form, being (1) age, (2) citizenship, and (3) inhabitancy in the State. But be¬ 
hind and above these is another 4 qualification, ’ which is of substance , in contradiction to 
form only. So supreme is this that it is placed under the safeguard of an oath. This is 
loyalty. It is easy to see how infinitely more i mportant is this than either of the others— 

S. Doc. 11-22 



338 


SENATE ELECTION CASES. 


than age, than citizenship, or than inhabitancy in the State. A Senator failing in either 
of these would be incompetent by the letter of the Constitution; but the Republic might 
not suffer from his presence. On the other hand, a Senator fading in loyalty is a public 
enemy, whose presence in this council Chamber would be a certain peril to the Republic. 

“ It is vain to say that loyalty is not declared to be a ‘ qualification. ’ I deny it. Loy¬ 
alty is made a ‘qualification ’ iu the amendment to the Constitution; and then again in 
the original text, when in the most solemn way possible it is distinguished and guarded 
by an oath. Men are familiarly said to ‘ qualify ’ when they take the oath of office, and 
thus the language of common life furnishes an authentic interpretation to the Constitu¬ 
tion. 

“But no man can be allowed to take the oath as Senator when, on the evidence before 
the Senate, he is not competent. If it appear that he is not of sufficient age, or of the 
required citizenship or inhabitancy, he cannot be allowed to go to that desk. Especially 
if it appear that he fails in the all-important ‘ qualification ’ of loyalty, he cannot be 
allowed to go to that desk. A false oath, taken with our knowledge, would compromise 
the Senate. We who consent will become parties to the falsehood. We shall be parties 
in the offense. It is futile to say that the oath is one of purgation only, and that it is 
for him who takes it to determine on his conscience if he can take it. The Senate cannot 
forget the evidence; nor can its responsibility in the case be swallowed up in any process 
of individual purgation. On the evidence we must act and judge accordingly. The 
‘ open sesame ’ of this Chamber must be something more than the oath of a suspected 
applicant. 

“According to Lord Coke, ‘an infidel cannot be sworn ’ as a witness. This was an 
early rule which has since been softened in our courts. But under the Constitution of 
the United States and existing statutes a ‘ political infidel cannot be sworn ’ as a Senator. 
Whatever may be his inclination or motive he must not be allowed to approach your 
desk. The country has a right to expect that all who enter here shall have a sure and 
well-founded loyalty, above all question or ‘ suspicion. ’ And such: I insist is the rule of 
the Constitution and of Congress. 

“As if to place the question beyond all doubt, Congress by positive enactment requires 
that every Senator, before admission to his seat, shall swear that he has ‘ voluntarily 
given no aid, countenance, counsel, or encouragement to persons engaged in armed hos¬ 
tility’ to the United States. Here is little more than an interpretation of the Constitu¬ 
tion. The conclusion is plain. No person who has voluntarily given even ‘countenance’ 
or ‘encouragement ’ to another engaged in the rebellion can be allowed to take that oath. 

“After this statement of the rule, the question arises, if Philip F. Thomas can be per¬ 
mitted to take the oath at your desk, or, in other words, to ‘ qualify ’ as a Senator of the 
United States. Is he competent? This is a question of evidence. 

“The ample discussion of the facts in this case, and their singular plainness, super¬ 
sede the necessity of all details. The atmosphere about Mr. Thomas and his acts are 
harmonious. From the beginning we find him enveloped in coldness and indifference 
while his country was in peril. But, observing him more closely, we are shocked by two 
acts of positive disloyalty, one of which is the natural prelude of the other. The first 
muttering of the rebellion found him a member of the Cabinet of Mr. Buchanan; but 
when this uncertain President proposed the succor of our troops at Charleston, already 
menaced with war, Mr. Thomas withdrew from the patriotic service. He resigned his 
seat, following the lead of Cobb, Thompson, and Floyd. A man is known by the com¬ 
pany he keeps. His company at this time were traitors. And the act they united in 
doing was essentially disloyal. As the rebellion assumed the front of war they all aban¬ 
doned their posts—some to join the rebellion and mingle with its armies; Mr. Thomas 
more prudently to watch the course of events in Maryland, ready to lift his arm also if 
his State pronounced the word. This concerted desertion was in itself a conspiracy 
against the Government; and, in the case of Mr. Thomas, who was Secretary of the Treas¬ 
ury, it was a blow at the national credit, which it was his special duty to guard. It was 
an act of disloyalty to be blasted by indignant history, even if your judgment fails now. 
And this was the first stage in this record. 

“Meanwhile the war rages. Armies are marshaled. Battles ensue. Washington 
itself is beleaguered. The Republic trembles with peril. But Mr. Thomas continues 
in the seclusion ot his home, enveloped in the same disloyal atmosphere, and refusing 
always the oath of allegiance. At last in 1863 an only son arrives at the age of eighteen. 
Though still a minor he is already of the military age. Naturally filled with the senti¬ 
ments of his father’s fireside, he seeks to maintain them by military service. He is like 
his father, but with the ardor of youth instead of the caution of years. H* avow® 
purpose to enlist in the rebel army, thus to levy war against his country and adhere to 
its enemies. All this was treason—plain, palpable, unquestionable, downright treason 
Instead of detaining his son; instead of keeping him back; instead of interposing a pa¬ 
ternal veto; instead of laying hands gently upon him; instead of denouncing him lo th« 


PHILIP F. THOMAS. 


339 


magistrate, all of which the father might have done, he deliberately lets him go, and 
then, to cap the climax of criminal complicity, famishes the means for his journey and 
his equipment. He gives $100. The father is not rich, and yet he gives this consider¬ 
able sum. Few soldiers started with such ample allowance. Thus it stands. The 
father, who has already deserted his post in the Cabinet and has refused to take the oath 
of allegiance to his country, contributes a soldier to the rebellion, and that soldier is his 
only son. To complete and assure the great contribution, he contributes a sum of money 
also. If all this accumulated disloyalty, beginning in a total renunciation of every pa¬ 
triotic duty, and finally consummated by an act of flagrant, unblushing enormity, is not 
‘ aid and comfort ’ or ‘ countenance ’ or ‘ encouragement ’ to the rebellion, it is difficult to 
say what can be. There must be new dictionaries for these familiar words, and they must 
receive a definition down to this day unknown. They must be treated as thread or gos¬ 
samer, when they should be links of iron. 


l 


340 


SENATE ELECTION CASES. 


[Fortieth Congress—Second session. ] 

JOHN T. JONES AND AUGUSTUS H. GARLAND vs. ALEXAN¬ 
DER MCDONALD and BENJAMIN F. RICE, 

of Arkansas. 


Arkansas had been without representation in Congress from 1861. June 23,1868, the credentials of 
Mr. McDonald and Mr. Rice, elected April 15,1868, to fill the unexpired terms ending March 3,1871 
and 1873, were presented. On the same day there were presented from the files of the Senate creden¬ 
tials of Mr. Jones and Mr. Garland, purporting to be certificates of their elections for the same terms. 
The two latter credentials had been originally presented to the Senate and ordered to lie on the 
table in the years 1866 and 1867, soon after the respective elections. They were again ordered to 
lie on the table. It appears from the debate that the elections of Messrs. Jones and Garland took 
place when a provisional government existed in Arkansas. A motion was then made that the cre¬ 
dentials of Messrs. McDonald and Rice be referred to the Committee on the Judiciary. The motion 
was determined in the negative, and Messrs. McDonald and Rice took their seats. It appears from 
the debate on their credentials that some Senators were of opinion that the credentials should be 
referred to a committee for the reasons that they did not in some particulars conform to the act of 
July 25,1866, regulating the election of Senators, and that the election had taken place before the 
passage of the act declaring Arkansas entitled to representation in Congress. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from the Senate Journal,40th Cong., 2d sess. 

The debate is found on pages 3384-3389 of the Congressional Globe, part 4,2d sess. 40th Cong. 

Tuesday, June 23,1868. 

Mr. Thayer presented the credentials of Benjamin F. Rice, elected a Senator by the 
legislature of the State of Arkansas for the unexpired term commencing on the 4th day 
of March, 1867; which were read. 

Mr. Thayer presented the credentials of Alexander McDonald, elected a Senator by the 
legislature of the State of Arkansas for the unexpired term commencing on the 4th day 
of March, 1865; which were read. 

Mr. Davis presented from the files of the Senate papers purporting to be the credentials 
of John T. Jones and Augustus H. Garland, chosen Senators by the legislature of the 
State of Arkansas for the unexpired terms commencing on the 4th day of March, 1865, 
and on the 4th day of March, 1867. 

Mr. Howard submitted a motion that the papers presented by Mr. Davis lie on the 
table. 

Mr. Hendricks asked to have the papers read; and 

Objection being made thereto, 

The President pro tempore submitted the question to the Senate, to wit: Shall the 
papers be read ? and it was determined in the affirmative—yeas 30, nays 16. 

On motion by Mr. Hendricks, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Bayard, Cole, Conkling, Corbett, Cragin, 
Davis, Dixon, Doolittle, Drake, Edmunds, Fessenden, Fowler, Harlan, Henderson, Hen¬ 
dricks, Johnson, McCreery, Morgan, Morrill of Vermont, Morton, Patterson of New Hamp¬ 
shire, Patterson of Tennessee, Ramsey, Ross, Sherman, Sprague, Trumbull, Van Winkle, 
Willey, and Yates. 

Those who voted in the negative are Messrs. Cattell, Chandler, Conness, Ferry, Freling* 
huysen, Howard, Howe, Morrill of Maine, Nye, Pomeroy, Stewart, Sumner, Thayer, Tip- 
ton, Wade, and Wilson. 

So it was decided that the papers be read; and 

The Secretary having read the same, the question recurred on the motion of Mr. How¬ 
ard that the papers presented by Mr. Davis lie on the table; and 

On the question to agree thereto, it was determined in the affirmative. 

A motion was then submitted by Mr. Davis that the credentials of Benjamin F. Rice 
and the credentials of Alexander McDonald be referred to the Committee on the Judi¬ 
ciary; and 

On the question to agree thereto, it was determined in the negative; and 

The oaths prescribed by law were administered to Mr. Rice and Mr. McDonald by the 
President pro tempore , and they took their seats in the Senate. 


MARVIN VS. OSBORN. 


341 


[Fortieth Congress—Second session. ] 

WILLIAM MARVIN vs. THOMAS W. OSBORN, 

of Florida. 

Florida had been without representation in Congress from 1861. June 30, 1868, the credentials ol 
Mr. Osborn, elected to fill the unexpired term ending March 3,1873, were presented. They were 
signed by Harrison Reed, governor, and certified that he had been elected June 18,1868. A motion 
was made that the credentials be referred to the Committee on the Judiciary. It appears from the 
debate that by a resolution of the Florida legislature the thirteenth and fourteenth amendments 
had been “ adopted.” It was maintained by some that this was not a sufficient “ ratification ” of the 
amendments. Pending debate on the motion to refer Mr. Osborn’s credentials, the credentials of 
Mr. Marvin, claiming to have been elected for the same term, were presented. They were signed 
by David S. Walker as governor, and certified that Mr. Marvin had been elected November 28,1866. 
The motion to refer Mr. Osborn’s credentials to a committee was determined in the negative, and 
Mr. Osborn was admitted to the seat. No further action was taken on Mr. Marvin’s credentials. It 
appears from the debate on them that Mr. Marvin had been elected before Congress had declared 
that Florida was entitled to representation in Congress, it having declared that Florida was not en¬ 
titled to appoint electors for President and Vice-President. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from the Senate Journal, 40th Cong., 2d sess. 

The debates are found on pages 3598^-3607 of the Congressional Globe, part 4, 2d sess. 40th Cong. 


Tuesday, June 30, 1868. 

Mr. Howe presented a resolution of the legislature of the State of Florida ratifying 
the amendments to the Constitution of the United States known as Articles XIII and 
XIV; which was read. 

Mr. Howe presented the credentials of Thomas Ward Osborn, elected a Senator of the 
United States by the legislature of the State of Florida for the unexpired term com¬ 
mencing March 4, 1867; which were read. 

A motion was made by Mr. Drake that the resolution of ratification of the legislature 
of Florida and the credentials of Mr. Osborn be referred to the Committee on the Judi¬ 
ciary. 

After debate,- 

Mr. Doolittle presented a paper purporting to be the credentials of William Marvin, 
elected a Senator of the United States by the legislature of the State of Florida on the 
28th of November, 1866, for the term of six years commencing on the 4th day of March, 
1867, and asked that the paper be read. 

Objection to the reading of the paper having been made by Mr. Howe, 

The President pro tempore submitted the question to the Senate, Shall the paper be 
read? and it was determined in the affirmative; and 

The said paper having been read, the question recurred on the motion of Mr. Drake 
to refer the resolution of the legislature of Florida and the credentials of Mr. Osborn to 
the Committee on the Judiciary. 

On the question to agree thereto, it was determined in the negative—yeas 16, nays 30. 

On motion by Mr. Conness, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Anthony, Buckalew, Davis, Doolittle, 
Drake, Edmunds, Fessenden, Hendricks, Howard, Johnson, McCreery, Morrill of Maine, 
Morrill of Vermont, Norton, Patterson of New Hampshire, and Vickers. 

Those who voted in the negative are Messrs. Cameron, Cattell, Chandler, Cole, Conness, 
Corbett, Cragin, Ferry, Frelinghuysen, Harlan, Howe, McDonald, Morgan, Morton, Nye, 
Pomeroy, Ramsey, Ross, Sherman, Stewart, Sumner, Thayer, Tipton, Trumbull, Van 
Winkle, Wade, Willey, Williams, Wilson, and Yates. 

So the motion of Mr. Drake was not agreed to. 

Mr. Howe submitted a motion that the oaths prescribed by law be now administered 
to Mr. Osborn. 

A motion was made by Mr. Drake that the credentials of Mr. Osborn lie on the table, 
and that the resolution of the legislature of Florida ratifying the amendments to the 
Constitution of the United States be referred to the Committee on the Judiciary. 

Mr. Conness raised the question of order, to wit, that the motion to administer the 
oaths of office to Mr. Osborn having been first made, and being in the nature of a priv¬ 
ileged question, had precedence over the motion of Mr. Drake. 

The President pro tempore sustained the question of order raised by Mr. Conness, and 
decided the motion of Mr. Drake not in order; and 


342 


SENATE ELECTION CASES. 


On the qnestion, Shall the oaths prescribed by law be now administered to Mr. Os¬ 
born? 

On motion by Mr. Drake that the further consideration of said question be postponed 
to to-morrow, it was determined in the negative—yeas 13, nays 31. 

On motion by Mr. Conness, the yeas and nays being desired by one-fiflh of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Anthony, Buckalew, Corbett, Davis, Doo¬ 
little, Drake, Edmunds, Fessenden, Hendricks, McCreery, Morrill of Vermont, Norton, 
and Vickers. 

Those who voted in the negative are Messrs. Cameron, Cattell, Chandler, Cole, Conk- 
ling, Conness, Cragin, Ferry, Frelinghuysen, Harlan, Howard, Howe, McDonald, Mor¬ 
gan, Morrill of Maine, Morton, Nye, Patterson of New Hampshire, Pomeroy, Ramsey, 
Ross, Stewart, Sumner, Thayer, Tipton, Trumbull, Wade, Willey, Williams, Wilson, 
and Yates. 

So the motion to postpone the further consideration of the question to administer the 
oaths to Mr. Osborn was not agreed to; and 

On the question, Shall the oaths prescribed by law be now administered to Mr. Os¬ 
born ? it was determined in the affirmative—yeas 33, nays 6. 

On motion by Mr. Drake, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Cameron, Cattell, Chandler, Cole, Conk- 
ling, Conness, Corbett, Cragin, Drake, Ferry, Frelinghuysen, Harlan, Howard, McDonald, 
Morgan, Morrill of Maine, Morrill of Vermont, Morton, Nye, Patterson of New Hamp¬ 
shire, Pomeroy, Ramsey, Ross, Stewart, Sumner, Thayer, Tipton, Trumbull, Wade, 
Willey, Williams, Wilson, and Yates. 

Those who voted in the negative are Messrs. Buckalew, Davis, Doolittle, Johnson, 
McCreery, and Vickers. 

So the motion was agreed to; and 

The oaths prescribed by law were administered to Mr. Osborn by the President pro 
tempore , and he took his seat in the Senate. 


WHITELEY AND FARROW YS. HILL AND MILLER. 


343 


[Third session, Fortieth Congress, and Forty-first Congress.] 

JOSHUA HILL and H. Y. M. MILLER. 

WHITELEY and FARROW vs. HILL and MILLER, 

Of Georgia. 

December 7,1868, the credentials of Joshua Hill, elected for the unexpired portion of the term be¬ 
ginning March 4,1867, were presented. December 10, his credentials were referred to the Committee 
on the Judiciary. January 11,1869, the credentials of H. V. M. Miller, elected for the unexpired por¬ 
tion of the term beginning March 4,1865, were presented and referred to the same committee. Jan¬ 
uary 25, 1869, the committee reported on the credentials of Mr. Hill. The chief question to be de¬ 
cided was whether Georgia had complied with the conditions of an act providing for her admission 
to representation. This act provided that “no person prohibited from holding office under the 
United States or any State by section 3 of the proposed amendment to the Constitution of the 
United States, known as article 14, shall be deemed eligible to any office in said State unless re¬ 
lieved from disability as provided in said amendment.” The committee reported that some of the 
members composing the legislature electing Mr. Hill were disqualified under the above provision; 
that the legislature had gone through with the forms of an investigation which did “not appear 
to have been conducted in good faith,” and had found none of the members disqualified; that 
“the election and qualification of members of the legislature, where the existence of any legisla¬ 
ture authorized to act as such is not involved, cannot be inquired into by the Senate in determin¬ 
ing the right of a Senator to his seat; ” but that “ the question involved in this case is not whether 
persons not entitled to seats in the legislature were received by that body and allowed to vote 
upon the election of a Senator, but whether the body assuming to be the legislature violated the 
conditions upon which it was allowed to organize by permitting disloyal persons to participate 
in its proceedings.” The committee submitted a resolution that Mr. Hill “ought not now to be 
admitted” to take his seat. There was a minority report. February 17, 1869, the committee re¬ 
ported against admitting Mr. Miller to his seat. There was no written report. In the next session 
of Congress the credentials of Messrs. Hill and Miller were again referred to the committee, 
who reported them back, and they were laid on the table. February 14,1870, in the next session, 
the credentials were again referred to the committee. A new election having been held, the ere 
dentials of Richard H. Whiteley, elected for the unexpired portion of the term beginning March 
4, 1865, and the credentials of Henry P. Farrow, elected for the unexpired portion of the term 
beginning March!, 1867, were presented July 15,1870, and ordered to lie on the table. No reports 
were made during this session on the credentials; but an act was passed (approved December 22, 
1869) to promote the reconstruction of Georgia; a report was made March 2,1870 (No.58), on the 
question whether the legislature had been reorganized in accordance with the provisions of this 
act; and an act was passed (approved July 15,1870) declaring that the State was entitled to repre¬ 
sentation in Congress. The proceedings of the Senate relating to these acts are not included in 
the proceedings given below. December 3,1870, in the next session of Congress, the credentials of 
Messrs. Whiteley and Farrow were referred to the committee. January 23,1871, the committee 
reported on the credentials of the four claimants that Messrs. Hill and Miller, elected under the 
organization of 1868, were duly elected, but that Mr. Miller, having acted as a surgeon in the rebel 
army, could not take the oath required by the act of July 2,1862. They recommended the adoption 
of the resolution that Mr. Hill was entitled to his seat. There was a minority report recommending 
the adoption of a resolution declaring Messrs. Whiteley and Farrow (who had been elected under 
the organization of 1870) entitled to seats. February 1,1871, the resolution reported by the com¬ 
mittee was agreed to and Mr. Hill took his seat in the Senate. February 24,1871, a joint resolution 
prescribing an oath to be taken by Mr. Miller was approved, and Mr. Miller took his seat. 

The proceedings of the Senate relating to this joint resolution are not included in theextr acts 
given below. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to the case from Senate Journals, 3d sess. 40th Cong., and 1st, 2d, and 3d sess. 41st Cong., with ex¬ 
tracts from the reports. A portion of report No. 58,2d sess. 41st Cong., referred to above, is included 
in the report made January 23,1871, given below. 

Special references to the debates of each day are inserted below, and references to the reports are 
given in foot-notes. 


[Third seeson of the Fortieth Congress.] 

CREDENTIALS OF ME. HILL. 

Monday, December 7, 1868. 

Mr. Sherman presented the credentials of Joshua Hill, elected a Senator by the general 
assembly of the State of Georgia for the unexpired portion of the term commencing on 
the 4th day of March, 1867; which were read. 

Mr. Drake moved that the said credentials be referred to the Committee on the Judi¬ 
ciary when said committee shall have been appointed. 

Pending debate, 

Mr. Wilson presented a memorial of the representatives of the colored voters of the 
State of Georgia, in convention assembled, in relation to the action of the legislature ol 
that State in expelling twenty-nine colored members from the said legislature; which 
was read; and, 

After further debate, 

On motion by Mr. Sherman, 

Ordered, That the credentials of Mr, Joshua Hill lie on the table. 

[The debate is found on pages 1-5 of Congressional Globe, part 1, 3d sess. 40h Cong.] 


344 


SENATE ELECTION CASES. 


Thursday, December 10, 1888. 

On motion by Mr. Sherman, 

Ordered , That the credentials of Joshua Hill, a Senator-elect from the State of Georgia, 
together with the letter of the governor of the State of Georgia in relation to the execu¬ 
tion of the laws known as the reconstruction laws, and the memorial of the representa¬ 
tives of the colored voters of Georgia in convention assembled, in relation to the expul¬ 
sion of certain members from the legislature of that State, be referred to the Committee 
on the Judiciary. 

Monday, January 25, 1869. 

Mr. Stewart, from the Committee on the Judiciary, to whom were referred the creden¬ 
tials of Joshua Hill, elected a Senator by the legislature of Georgia for the unexpired 
portion of the term commencing on the 4th day of March, 1867, submitted a report (No. 
192), accompanied by the following resolution: 

“ Resolved, That Joshua Hill, claiming to be Senator-elect from Georgia, ought not 
now to be permitted to take a seat in this body. ’ ’ 

Mr. Trumbull asked and obtained leave of the Senate to present the views of the mi¬ 
nority of the Committee on the Judiciary in relation to the right of Joshua Hill, Sen¬ 
ator-elect from the State of Georgia, to a seat in the Senate; which were ordered to be 
printed with the report of the committee submitted by Mr. Stewart. 

REPORT OF COMMITTEE ON CREDENTIALS OF MR. HILL—MAJORITY AND MINORITY.* 

[The committee consisted of Messrs. Trumbull (chairman), Stewart, Frelinghuysen, 
Edmunds, Conkling, Rice, Carpenter, and Hendricks. ] 

In the Senate of the United States. 

January 25, 1869.—Ordered to be printed. 

Mr. Stewart, from the Committee on the Judiciary, submitted the following report: 

The Committee on the Judiciary, to whom were referred the credentials of Joshua 
Hill, claiming to be Senator-elect from Georgia, beg leave to submit the following report: 

The credentials referred to your committee are in the usual form, and if the State of 
Georgia is entitled to representation in Congress, Mr. Hill ought to be permitted to take 
his seat. 

From the fact of the reference, your committee feel called upon to go behind the cre¬ 
dentials to ascertain if any reasons exist why Mr. Hill should not be admitted to the 
Senate. 

On the 21st of May, 1868, the President transmitted to Congress a proposed constitu¬ 
tion for the State of Georgia which had been framed by a convention assembled under 
the reconstruction acts of Congress and ratified by the people. On the 25th June, fol¬ 
lowing, Congress passed an act which, among other things, provided for the admission 
of Georgia to representation upon compliance with certain conditions therein named, the 
most important of which was that the legislature of Georgia should duly ratify the amend¬ 
ment to the Constitution of the United States known as the fourteenth amendment. The 
act further provides that after compliance with the required conditions ‘ ‘ the officers of said 
State duly elected and qualified under the constitution hereof shall be inaugurated with¬ 
out delay; but no person prohibited from holding office under the United States or any 
State by section 3 of the proposed amendment to the Constitution of the United States 
known as article 14 shall be deemed eligible to any office in said State unless relieved 
from disability as provided in said amendment. ’ ’ 

The obvious design of this provision was to prevent the new organization from falling 
under the control of enemies of the United States, so as to defeat the reconstruction ol 
the State. 

The right of Mr. Hill (if regularly elected) to a seat in the Senate depends upon three 
important considerations: 

First. Did the legislature of Georgia, regularly organized in accordance with the Con¬ 
stitution of the United States, the laws of Congress, and the constitution of Georgia, duly 
ratify the fourteenth amendment, and comply with the various conditions imposed by 
the act of June 25, 1868? 

Second. Have the legislature and people of Georgia, subsequent to such compliance 
with said acts of Congress, committed such acts of usurpation and outrage as to place the 
State in a condition unfit to be represented in Congress ? 

Third. Whether, on the whole case, taking the action of Georgia both before and since 
the pretended ratification of the fourteenth amendment, a civil government has been 
established in that State which Congress ought to recognize? 

These questions must be answered by the law and the facts. 

* Taken from Senate Reports, 3d sess. 40th Cong., No. 192. The accompanying documents, making 
pages 5-31 and 38-40 of the report, are omitted. 




WHITELEY AND FARROW YS. HILL AND MILLER. 345 


The district commander, General Meade, by a general order dated June 25, 1868, de¬ 
clared the result of the election; Rufus B. Bullock being elected governor, and among 
the members elected to the legislature in that order were thirty-one colored men—three 
senators and twenty-eight representatives. (See Exhibit No. 1.) By a proclamation of 
the governor-elect, in pursuance of the act of June 25, 1868, the legislature of Georgia 
convened on the 4th July following. On the 8th July the organization of the two houses 
was effected, and all persons declared elected were allowed to take their seats. 

When the governor-elect was notified of the action of the two houses, he addressed a 
communication to General Meade, commander of the district, informing him of the fact, 
and also that it was alleged that a number of the members of the general assembly who 
had taken their seats, and one or more officers of that body, were not eligible under the 
act of June 25, 1868, by reason of their having taken an official oath to support the Con¬ 
stitution of the United States, and subsequently had given aid and comfort to the ene¬ 
mies thereof. General Meade on the same day replied to the communication, and among 
other things desired the governor-elect to communicate to the legislature that he could not 
recognize any act of that body as valid or allow the same to be executed until satisfactory 
evidence was produced that all persons excluded by the fourteenth amendment were 
deprived of their seats in both houses. Whereupon the two houses went through the 
form of an investigation. But from the evidence before your committee the investiga¬ 
tion does not appear to have been conducted in good faith, or with any intention either of 
finding the facts or of excluding persons known to be disqualified. A committee was 
appointed in each ho*se. In the senate the majority of the committee found all the 
members qualified; but there was a minority report which gave an abstract of the evi¬ 
dence and found four senators disqualified The evidence consisted of the admissions of 
the senators themselves; which if true, they should have been excluded. Yet the senate 
passed a resolution, under the operation of the previous question, admitting them all. 
These facts appear in the official correspondence between Governor Bullock and General 
Meade in regard to the organization of the Georgia legislature. (See Exhibit A.) There 
were three reports in the house. The majority report found two members disqualified; 
one of the minority reports found still another member disqualified, but the other mi¬ 
nority report found that all were qualified. The last report was adopted by the house 
under the operation of the previous question. To illustrate the manner in which the 
investigation was conducted, a copy of the proceedings of the legislature on the 16th, 
L7th, and 18th days of July, 1868, as reported in the Atlanta Daily Era, and forwarded to 
the State Department, is attached to this report. (See Exhibits A, B, and C.) It is alleged 
that an impartial investigation would have shown from thirty to forty members of the 
legislature disqualified under the fourteenth amendment; and although your committee 
have not been able to fully investigate this master, but, from the evidence before them, 
they have little doubt that the number was large, as the exhibit hereto attached will 
tend to establish. For the purposes of this report, however, your committee did not deem 
it necessary to ascertain the number of disqualified persons admitted. But the fact that 
any were knowingly admitted was not only a violation of the fourteenth amendment, and a 
failure to comply with the requirements of Congress, but manifests a disposition to dis¬ 
obey and defy the authority of the United States. If one could be admitted why not all ? 
And will it be contended that if the entire body had been composed of men who had 
usurped the functions of the legislature, against the express provisions of the reconstruc¬ 
tion acts, they could have complied with the provisions of those acts so as to create any 
obligation on the part of Congress to receive their Senators and Representatives? 

Your committee are of opinion that the act of June 25, 1868, which required that the 
constitutional amendment should be duly ratified, must be held to mean that it must be 
ratified by a legislature which has in good faith substantially complied with all the re¬ 
quirements of law providing for its organization. It is true that after this pretended 
investigation by the two houses of the eligibility of their members the district com¬ 
mander recognized the validity of their proceedings, and permitted the State officers to 
be inaugurated and the State government to go into operation. On the 21st day of July 
the legislature passed a resolution of ratification of the fourteenth amendment and the 
other resolution required by the act of June 25, 1868. 

On the 28th of July, 1868, the legislature went into joint convention for the election 
of United States Senators. Joshua Hill received 110 votes; Joseph E. Brown, 94 votes, 
and A. H. Stevens, 3 votes, whereupon Mr. Hill was declared elected United States 
Senator for the term ending March 3, 1873. 

It is quite probable that Mr. Hill received votes of persons who were not qualified to 
hold seats in the legislature more than sufficient to constitute his majority and secure 
his election, but your committee do not propose to investigate that question. The elec¬ 
tion and qualification of members of the legislature, where the existence of any legisla¬ 
ture authorized to act as such is not involved, cannot be inquired into by the Senate in 
determining the right of a Senator to his seat. Your committee hold that the question 


346 


SENATE ELECTION CASES 


involved in this cj.ee is not whether persons not entitled to seats in the legislature were 
received by that body and allowed to vote upon the election of a Senator, but whether 
the body assuming to be the legislature violated the conditions upon which it was allowed 
to organize by permitting disloyal persons to participate in its proceedings. It may be 
contended that although the matters hereinbefore set forth constitute a failure on the 
part of the State of Georgia to comply in every respect with the reconstruction acts, yet 
Congress ought to waive these slight departures and admit their representatives. But an 
examination into the subsequent proceedings of the legislature of Georgia, and the dis¬ 
organized condition of society in that State, leads your committee to the conclusion that 
all these violations of law were in pursuance of a common purpose to evade the law and 
resist the authority of the United States. 

The colored members in the organization of the legislature, as has been stated, were 
allowed to take their seats. On the 9th of July, 1868, the day after such organization, 
the following action was had in regard to the three colored senators: 

“ Mr. Welch moved that the action taken on yesterday, in regard to the eligibility of 
certain members, be reconsidered. Agreed to. 

“Mr. Sherman moved to strike out that portion of Mr. Candler’s resolution which 
refers to the eligibility of Messrs. Campbell, Wallace, and Bradley. 

* ‘ Mr. Candler moved to lay the resolution and amendment on the table. 

“ Mr. Bradley, being entitled to the floor, resumed his speech of yesterday, in opposi¬ 
tion to the amendment of Mr. Candler, and was followed by Mr. Campbell. 

“ The matter was finally referred to the committee on privileges and elections.” 

Thus this vexed question was quietly smothered for the time. But Mr. Candler, on 
the 25th of July (a few days before the Senatorial election), offered the following resolu¬ 
tion, which was laid on the table: 

“Whereas ex-Governor Joseph E. Brown, one of the ablest lawyers in the Republican 
party of Georgia, as well as other persons, distinguished for their knowledge of constitu¬ 
tional law, held, during the late canvass, that persons of color were not entitled to hold 
office under the existing constitution; and 

“Whereas such persons hold seats as senators on this floor; and 

‘ ‘ Whereas there are laws of vital importance to the people of Georgia to be enacted by 
the general assembly, the validity of which should not be made uncertain because of 
a participation of their enactment by persons not entitled, under the constitution, to so 
participate: Therefore, 

“ Be it resolved, That the committee on privileges and elections be directed to inquire 
into the eligibility of the several persons of color holding seats as senators and report at 
the earliest day practicable. ’ ’ 

Mr. Hungerford moved to lay the resolution on the table. 

The motion prevailed. 

The question remained unsettled until after the Senatorial election and the adjournment 
of Congress. But on the 3d of September, 1868, the house of representatives of Georgia 
expelled twenty-four of its members on account of color, and subsequently expelled two 
more for the same reason, and on the 11th day of same month the senate expelled two 
of its members for a like reason, making twenty-eight members of the legislature that 
were expelled by the two houses without authority of law. For a full account of these 
proceedings see Exhibit D. 

After the expulsion of the colored members the persons who received the next highest 
number of votes for their places, under what is known in Georgia as the Irwin code, 
were permitted to take their seats. But no investigation as to their eligibility under the 
fourteenth amendment appears to have been had. (See Exhibit D.) 

Your committee are of opinion that under the constitution of Georgia there is no dis¬ 
tinction in the right to hold office on account of race or color, and they are quite confi¬ 
dent that such was the opinion of Congress at the time it approved that constitution. 

This act of injustice and oppression denied the right of representation of a whole race, 
constituting nearly one-half of the people of Georgia. It will not be contended that there 
is no power in this Government to restrain in some form an outrage of this character. It 
certainly furnishes a strong reason why Congress should not at this time overlook the 
irregularities in the organization of the legislature of Georgia, and admit her Senators to 
representation. And this is not all. Your committee have examined the official reports 
of the various officers connected with the Freedmen’s Bureau in Georgia, and find re¬ 
ported 336 cases of murders and assaults with intent to murder upon colored persons 
by the whites, from January 1, 1868, to November 15 of same year. For all of which 
there has been no legal redress and scarcely any effort whatever on the part of the author¬ 
ities to punish the criminals. And it is stated by these officers that they are unable to 
report fully as to the number and character of these outrages on account of intimidation 
of witnesses, which is practiced by the perpetrators of crime. Your committee have no 
sturce of official information as to outrages committed upon loyal whites, but it is 


WHITELEY AND FARROW YS. HILL AND MILLER. 347 


represented by various and numerously signed petitions and memorials from the loyal 
people of Georgia that they are constantly exposed to violence, and are without protec¬ 
tion of law. It is a matter of public notoriety that loyal white men are persecuted, 
murdered, and driven from their homes. Several members of the legislature have been 
compelled to take refuge at the capital of the State where the national troops are sta¬ 
tioned to avoid the violence of the enemies of the United States. The unlawful and 
vindictive conduct of the legislature tend to confirm these statements and reports, and 
exclude all hope that the new civil government will afford adequate protection to life 
and property. Since the withdrawal of the military crime has greatly increased, while 
punishment for crime has diminished. Wherefore your committee feel called upon to 
recommend that Mr. Hill be not allowed to take a seat in the Senate for the reason that 
Georgia is not entitled to representation in Congress, and submit the accompanying res¬ 
olution. 

Resolved , That Joshua Hill, claiming to be Senator-elect from Georgia, ought not 
now to be permitted to take a seat in this body. 


I concur in the conclusion of the report that Mr. Hill ought not to be admitted, and 
agree that the report be made. 


ROSCOE CONKLING. 


I concur in the conclusion of the report that Mr. Hill ought not now to be admitted, 
and agree that the report be made. 

FRED’K T. FRELINGHUYSEN. 


VIEWS OF THE MINOBITY. 

Mr. Trumbull asked and obtained leave to submit the following as the views of the 
minority; which were ordered to be printed with the report of the Committee on the 
Judiciary on the credentials of Joshua Hill, Senator-elect from Georgia: 

The undersigned, being unable to agree with the majority of the committee in their 
report upon the credentials of Joshua Hill, claiming to have been duly elected and en¬ 
titled to a seat in the Senate from the State of Georgia, begs leave to present the reasons 
for his dissent. That Hill possesses all the qualifications for a member of the Senate of 
the United States required by the Constitution; that he is one of the few prominent 
men residing in a rebel State who remained true to the Union during the war; that he 
is now and has been at all times thoroughly loyal to the Union; that he is in every re¬ 
spect personally unobjectionable; that he was duly elected by the legislature of Georgia, 
and that his credentials are in due form is not questioned by any one. If he is not 
entitled to his seat, it must be either because the State of Georgia was not in a condition 
to entitle her to representation at the time of his election, or because the body which 
elected him was not the legislature of that State. 

The former of these propositions, whether Georgia was or is in a condition to entitle 
her to representation, is not a question for the Senate to decide. The unfortunate dis¬ 
agreement which has existed for some years between the President and Congress has, 
in part, been owing to a disagreement upon this very point; the President insisting 
that it was for each House of Congress to determine for itself in the admission of mem¬ 
bers whether a State was entitled to representation, and Congress insisting that it was 
for Congress to determine in the first instance whether a State was entitled to represent¬ 
ation, and that question being affirmatively settled, it was then for each House to judge 
for itself of the election, returns, and qualifications of its own members. This contro¬ 
verted point was settled by Congress in March, 1866, by the passage through both 
Houses of the following concurrent resolution: 

11 Resolved by the House of Representatives (the Senate concurring ), That, in order to 
close agitation upon a question which seems likely to disturb the aotion of the Govern¬ 
ment, as well as to quiet the uncertainty which is agitating the minds of the people of 
the eleven States which have been declared to be in insurrection, no Senator or Repre¬ 
sentative shall be admitted into either branch of Congress from any of said States until 
Congress shall have declared such State entitled to such representation.” 

The reconstruction acts, since indorsed by the people at a popular election, declare 
that ‘ ‘ until the people of said rebel States shall be by law —not by the action of each 
House—admitted to representation in the Congress of the United States, any civil gov¬ 
ernments which may exist therein shall be deemed provisional only;” which is equiv¬ 
alent to a declaration that when admitted to representation by law they shall be no 
longer provisional. 

The supplementary act of March 23, 1867, declares that when the requirements of 
the reconstruction acts shall have been complied with by any of the rebel States in the 
formation of a constitution, and “said constitution shall be approved by Congress, the 
State shall be declared entitled to representation, and Senators and Representatives 


348 


SENATE ELECTION CASES. 


shall be admitted therefrom, as therein provided.” This action of Congress, indorsed 
by the people, determined that neither House of Congress was authorized by itself to 
admit Senators or Representatives from any of the rebel States till Congress should 
determine by law that such State was entitled to representation. The converse of the 
proposition was also equally determined, that it would be the duty of each House to 
admit duly elected and qualified Senators and Representatives from each of said States 
whenever Congress shall have determined by law that such State was entitled to rep¬ 
resentation. 

On the 25th of June, 1868, Congress passed the following act: 

“ AN ACT to admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama 

and Florida to representation in Congress. 

“Whereas the people of North Carolina, South Carolina, Louisiana, Georgia, Alabama, 
and Florida have, in pursuance of the provisions of an act entitled ‘ An act for the more 
efficient government of the rebel States, ’ passed March 2,1867, and the acts supplement¬ 
ary thereto, framed constitutions of State government which are republican, and have 
adopted said constitutions by large majorities of the votes cast at the elections held for 
the ratification or rejection of the same: Therefore, 

11 Be it enacted by the Senate and House of Representatives of the United States of America 
in Congress assembled, That each of the States of North Carolina, South Carolina, Louisi¬ 
ana, Georgia, Alabama, and Florida shall be entitled and admitted to representation 
in Congress as a State of the Union when the legislature of such State shall have duly 
ratified the amendment to the Constitution of the United States proposed by the Thirty- 
ninth Congress, and known as article 14, upon the following fundamental conditions: 
That the constitutions of neither of said States shall ever be so amended or changed as to 
deprive any citizen or class of citizens of the United States of the right to vote in said 
State, who are entitled to vote by the constitution thereof herein recognized, except as 
a punishment for such crimes as are now felonies at common law, whereof they shall 
have been duly convicted under laws equally applicable to all the inhabitants of said State: 
Provided, That any alteration of said constitution may be made with regard to the time 
and place of residence of voters; and the State of Georgia shall only be entitled and ad¬ 
mitted to representation upon this further fundamental condition: that the first and 
third subdivisions of section 17 of the fifth article of the constitution of said State, ex¬ 
cept the proviso to the first subdivision, shall be null and void, and that the general 
assembly of said State by solemn public act shall declare the assent of the State to the 
foregoing fundamental condition. 

“ Sec. 2. And be it further enacted, That if the day fixed for the first meeting of the 
legislature of either of said States by the constitution or ordinance thereof shall have 
passed or have so nearly arrived before the passage of this act that there shall not be 
time for the legislature to assemble at the period fixed, such legislature shall convene at 
the end of twenty days from the time this act takes effect, unless the governor-elect shall 
sooner convene the same. 

‘ ‘ Sec. 3. And be it further enacted, That the first section of this act shall take effect 
as to each State, except Georgia, when such State shall, by its legislature, duly ratify 
article 14 of the amendments to the Constitution of the United States, proposed by the 
Thirty-ninth Congress, and as to the State of Georgia when it shall in addition give 
the assent of said State to the fundamental condition hereinbefore imposed upon the 
same; and thereupon the officers of each State duly elected and qualified under the con¬ 
stitution thereof shall be inaugurated without delay; but no person prohibited from 
holding office under the United States, or under any State, by section 3 of the proposed 
amendment to the Constitution of the United States, known as article 14, shall be 
deemed eligible to any office in either of said States, unless relieved from disability as 
provided in said amendment; and it is hereby made the duty of the President within 
ten days after receiving official information of the ratification of said amendment by the 
legislature of either of said States to issue a proclamation announcing that fact. ’ ’ 

On the very day of the passage of the foroegoing act Rufus B. Bullock, governor-elect 
of Georgia, issued his proclamation convening the legislature of that State on the 4th ol 
July following. The manner in which the legislature was organized will fully appeal 
from the following extract, taken from the official report of Major-General Meade: 

“The convention in Georgia, after being in session several months, finally, in March, 
adopted a constitution, which together with a State ticket was submitted to the people in 
April, and ratified by a very handsome majority of the registered vote—all parties taking 
part in the election. This constitution, with some modifications, was adopted by Congress, 
and the legislature, which convened in July, making these modifications and otherwise 
complying with the requirements of the reconstruction laws, the State, together with 
Alabama and Florida, were, by act of Congress, formally admitted to representation. 

“ There is one point in regard to the admission of the State of Georgia to which I feel 
called upon to make special allusion. When the legislature was convened by the pro* 


WHITELEY AND FARROW VS. HILL AND MILLER. 349 


visional governor and governor-elect, the question arose whether, as military com¬ 
mander, I was called on to inquire into the eligibility of the members, either under the. 
United States laws or the constitution of Georgia. The convention of Georgia had, in 
its ordinance calling an election, directed that all returns should be sent to the military 
commander of the district, who was requested to issue the necessary certificates of election 
In carrying out this request of the convention I deemed my duty simply required that 
I should give the member having the greatest number of votes the ordinary certificate 
of election, and that it would be for each house to decide on the eligibility of those 
members whose seats were on any grounds contested. Whilst I admitted, as district 
commander, executing the law, I was to see that no one ineligible to office under the four¬ 
teenth article constitutional amendment should be allowed to take office, I did not see 
that in the case of a parliamentary body I was called on to decide on the qualifications 
of the members. In this view I was sustained by a telegram sent to me for my infor¬ 
mation from the War Department, which had been sent to the governor of Louisiana 
and the military commander of the fifth district, and which I quote: 

‘“Washington, June 30, 1868. 

“ ‘To Governor Warmouth, New Orleans : 

“‘We think the persons disqualified under the fourteenth article of the amendment to 
the Constitution of the United States are not eligible to your legislature. This is to be 
determined by the respective houses; but no oath can be imposed except the oath pre¬ 
scribed by the State constitution. 

“ ‘JAMES WILSON, 

“ ‘ Chairman Judiciary Committee. 

“ ‘GEORGE F. BOUTWELL, 

“‘J. F. FARNSWORTH, 

“‘H. E. PAINE, 

“ ‘ Reconstruction Committee .’ 

“ It will be seen by the above telegram that the distinguished gentlemen whose names 
were attached were of the opinion, first, that no one ineligible to office under the four¬ 
teenth article could take a seat in the legislature; second, that the respective houses 
were to judge of the question; third, that no oath testing this eligibility could or should 
be prescribed in advance of the meeting of the legislature. These views being in accord¬ 
ance with my own, I acted on them, and was present at the organization of the two 
houses of the Georgia legislature; to the members declared in my order as having the 
highest number of votes, there being administered only the oath prescribed by the State 
constitution. After these houses were organized, the provisional governor informed me 
officially of their organization, but that, as far as he could learn, no steps had been taken 
to test the question of the eligibility of members under the fourteenth article. I re¬ 
plied to the governor that until the State was admitted to representation the legislature 
and all the officers were only provisional, and subject to the paramount authority of the 
district commander, and that in the exercise of this power I should consider all acts of 
the legislature null and void until satisfactory evidence was presented to me that each 
house had purged itself of ineligible members under the fourteenth article, provided there 
were any such in either house; and I desired the provisional governor to communicate 
these views to each house. On the receipt of this letter, each house at once ordered an 
investigating committee and inquired into the qualification of each member, and duly 
reported this fact through the provisional governor, stating at the same time that neither 
house had found any member ineligible. 

“The provisional governor, in transmitting these communications, expressed the 
opinion, founded on evidence presented to him, that several members in both houses 
were ineligible, and called on me to exercise my power and require said members to 
vacate their seats. On reflecting upon this subject, I could not see how I was to take 
the individual judgment of the provisional governor in the face of a solemn act of a par¬ 
liamentary body, especially as, from the testimony presented, I did not, in several cases, 
agree with the judgment of the provisional governor. The question was simply whether, 
in the construction of a law, and in considering the facts of individual cases, I should 
make myself the judge, or take the opinion of the provisional governor, in the face of 
the official information that a parliamentary body had gravely and formally, through a 
committee, examined, reported, and acted on these cases. My judgment was decidedly 
that I had fulfilled my duty in compelling the houses to take the action they had, and 
that having thus acted, I had neither the authority, nor was it politic or expedient, to 
overrule their action, and set up my individual j udgment in opposition. By an inspection 
of the telegram sent July 18, and the reply of the General-in-chief, July 23, it will be 
seen that my views and actions were approved. I allude thus in extenso to this subject, 
because his excellency the governor of Georgia, in a public speech recently delivered at 


350 


SENATE ELECTION CASES. 


Albion, N. Y., is pleased to attribute the failure of Georgia to be properly reconstructed to 
my action in failing to purge the legislature of his political opponents, he having advised 
me, when he urged such action, that his friends had been relieved of their disability by 
Congress. 

“The States being admitted to representation, the civil power vested in the military 
commander by the reconstruction acts ceased, and civil authority resumed its sway.” 

The foregoing extract, together with copies of official correspondence between Major- 
General Meade and General Grant, hereto attached, establish the fact that the legislature 
of Georgia fully complied with the requisitions of the act of June 25,1868; and the fact 
of her ratification of the fourteenth amendment was duly proclaimed by the President, 
as also appears by a copy of the proclamation hereto attached. 

Congress having decided that Georgia was entitled to representation through the State 
government organized under the reconstruction acts, on complying with the conditions 
therein named, it is not competent for either house, now that the conditions have been 
complied with, to refuse admission to members on the ground that the State is not en¬ 
titled to representation. For either House to do so would be for such House to set aside 
a solemn act of Congress, passed by both Houses, and to repudiate the principle on which 
it differed with the President and went before the people in the popular elections. The 
House of Representatives, conforming to the law of Congress, has admitted to seats the 
Representatives from Georgia against whom no personal objection was made, without 
any further inquiry than whether Georgia had complied with the conditions of the act of 
June 25,1868. No attempt was made in that body to revise the decision of Congress. 

The assumption that the constitutional amendment was not adopted in good faith is 
not sustained by a particle of evidence before the committee, and is contradicted by the 
official report of Governor Bullock to General Meade, by the orders of General Meade, 
and those emanating from the General-in-chief, by the proclamation of the President, 
made in pursuance of law, by the action of the House of Representatives in passing upon 
the admission of members to that body, and by the acquiescence of all the departments 
of Government from July untilnow. If one branch of Congress is at liberty todeny aState 
representation on the ground that it did not act in good faith in agreeing to the condi¬ 
tions prescribed by Congress, what is to prevent either House of any other Congress, acting 
on a like assumption, from denying admission to members from any other of the recon¬ 
structed States? It is well known that a large political party in the country believe the 
reconstruction acts unconstitutional. Should that party hereafter obtain ascendency in 
either House of Congress, is it to be at liberty to overturn the State governments which 
have been established in pursuance of law and to quote as a precedent the action of the 
Senate in this case? When are we to have peace and civil governments established in 
the late rebel States under such a policy? The question has been asked if one person 
disqualified by the fourteenth amendment could be permitted to act as a member of the 
Georgia legislature, why not all; and if all, would it be pretended that it was a legisla¬ 
ture organized in accordance with the reconstruction acts ? Probably not; and the same 
question, with the same force, may be asked in reference to Congress or any other legis¬ 
lative body in the land. If a disqualified person or several such were permitted to act 
as members of Congress or a State legislature, does anybody pretend that the action of 
the body would be vitiated thereby, and yet who would not admit that if a body of men 
were to assemble and undertake to act as the Congress or the legislature of a State, all of 
whom were disqualified from acting as such, that their action would have any validity ? 
No such case is to be presumed, and no legislative body is justified or safe in basing its 
action on supposititious cases which never have and are not likely ever to occur. No such 
state of facts is presented in the case of Georgia. Not one in ten of the members of the 
senate, after deducting those from whom the disabilities had been removed by Congress, 
and not one in fifty of the members of the house were found disqualified by even the mi¬ 
nority of the committee who investigated this subject, and each house decided all its 
members to be qualified. The constitution of Georgia, which was accepted by Congress, 
like that in all the other States, and like the Constitution of the United States, in regard 
to Congreas, leaves to each house the exclusive right to judge for itself of the election and 
returns of its own members, and that judgment, when pronounced, is conclusive every¬ 
where. There was not a shadow of anything deserving the name of evidence before the 
committee to show that either house of the legislature of Georgia acted corruptly or 
fraudulently in passing upon the right of members to their seats under the fourteenth 
amendment. 

The Senate has no right, in the opinion of the undersigned, to revise the action of Con¬ 
gress, disregard its laws, and refuse Hill his seat, because in its opinion Georgia is not 
entitled to representation, when Congress has decided otherwise, and the Executive and 
the General-in-chief have acted on that decision. It being admitted that Hill is entitled 
to his seat if Georgia is entitled to be represented in the Senate, and it being shown that 
Georgia has been declared by law to be entitled to representation on certain conditions, 


WHITELEY AND FARROW VS. HILL AND MILLER. 


351 


w hich are shown to have been complied with, the conclusion would seem to be irresist¬ 
ible that Hill was entitled to take his seat. That it is competent for the Senate, in 
passing upon the elections, returns, and qualifications of its members, to inquire whether 
the body by which a Senator was elected was the legislature of the State is not disputed; 
but it is not pretended that Georgia had any other legislative assembly than the one which 
elected Mr. Hill claiming to be a legislature. The legislative body which elected him 
was the one which was convened by the governor in pursuance of an act of Congress; the 
one which ratified the fourteenth amendment to the Constitution as proclaimed both by 
the President and Secretary of State, in accordance with the requirements of law; and 
the one, and the only one, which has been elected and assembled in said State under the 
constitution formed in pursuance of the reconstruction acts and approved by Congress. 
The legislature of Georgia, under its constitution, consists of forty-four senators and one 
hundred and seventy-five representatives, and the complaint is, not that the persons 
properly chosen and qualified would not and did not constitute the legislature, but that 
u there were a number of persons holding seats in both branches of the legislature that 
were and are not eligible under the fourteenth constitutional amendment.’’ 

Each house appointed committees, who investigated the question of the eligibility of 
the members of their respective houses under that amendment; and, on their report, each 
house decided that all its sitting members were entitled to seats. Whether these decisions 
were correct or not is not material to Hill’s right to a seat, as it is not pretended, even 
by the minority of the committees appointed to investigate, that more than four senators 
out of forty-four, omitting those whose disabilities had been removed by act of Congress, 
and three representatives, out of ohe hundred and seventy-five, were disqualified by the 
fourteenth amendment. 

No evidence was taken by the Judiciary Committee to ascertain how many or whether 
any of the members of either house were ineligible. 

The statements of letter-writers and memorialists cannot surely be treated as evidence 
upon which to overthrow a State government. The only reliable information the com¬ 
mittee had on that subject is contained in the official report of Major-General Meade, and 
the journal of the legislature, as published in a newspaper. From these it appears that 
only four senators and three representatives were complained against by any one in the 
legislature as disqualified by the fourteenth amendment. 

If it were admitted that the decision of each house was wrong in regard to the eligi¬ 
bility of the members complained against it would not vitiate the proceedings of the 
legislature. Scarcely a legislature assembles in any of the States in which there are not 
controversies in regard to seats, and it often happens that these are not settled till near 
the close of the session, when, perhaps, sitting members are turned out; and yet, who 
ever supposed that the proceedings of a legislative body were vitiated because they were 
participated in by persons whom it afterwards turned out were not entitled to seats? 
But whether each house of the legislature of Georgia decided rightly or not as to the 
eligibility of its members is not a question for the Senate to review. The Senate has 
no jurisdiction to inquire whether the members of a State legislature are properly elected 
and qualified. 

If it could make this inquiry in regard to the members of the legislature of Georgia, 
which had been declared entitled to representation, it could make it in regard to the 
legislature of Illinois, or any other State. No one, I apprehend, would contend for such 
a power in Congress. It does not follow that Congress may not provide the means for 
executing the fourteenth amendment. There can be no question of its power to pass a 
law making it a penal offense for any person to take or hold office contrary to the pro¬ 
visions of that amendment. Another objection made to the organization of the Georgia 
legislature is that its members did not take the test oath required by the ninth section 
of the act of July 19,1867, to be administered to all persons appointed to office under 
any of the so-called State governments in the rebel States; but obviously that require¬ 
ment did not apply to members of a legislature elected under a constitution formed in 
pursuance of the reconstruction acts, and so General Grant, Major-General Meade, and 
the Judiciary Committee of the House decided. Another objection urged against Mr. 
Hill’s right to a seat is the fact that the legislature of Georgia unjustly denied the right 
of certain colored members to seats. However unjust this denial may have been, it did 
not take place till more than a month after Hill’s election. He was elected July 28, 
and the colored members participated in all legislation till September 3. 

It is difficult to perceive how an act subsequent to the election could affect its valid¬ 
ity. If the legislature was properly organized when it elected Hill, the fact that it sub¬ 
sequently became disorganized ought not to affect his election. 

There is great diversity of opinion as to the condition of affairs in Georgia at this time. 
The committee have taken no testimony on that subject, but it is understood that a com¬ 
mittee of the House of Representatives have taken a large mass of evidence as to the 
nresent state of affairs in Georgia, which will soon be printed. 


352 


SENATE ELECTION CASES. 


Time and the salutary influence of the incoming administration, it is believed, will 
soon correct whatever of lawlessness and disorder now remain in the State. If, however, 
they should not, someway will doubtless be found by which Congress and the Executive, 
acting in harmony, and not the Senate alone, will be able to preserve the peace and pro¬ 
tect all the citizens of Georgia in the enjoyment of all their rights. These considera¬ 
tions, however, should not affect the right of Mr. Hill to his seat in the Senate, and are 
only alluded to because of the importance attached to the present condition of affairs in 
Georgia by the majority of the committee. The undersigned, believing Mr. Hill to 
have been duly elected Senator by the legislature of a State entitled to representation, 
and that he possesses all the qualifications required by the Constitution, recommends 
striking out of the resolution reported by the committee all after the word “ resolved,” 
and the insertion of the following: 

“That Joshua Hill is entitled to take his seat in the Senate on taking the oath pre¬ 
scribed by the Constitution and laws.” 

LYMAN TRUMBULL. 

CREDENTIALS OF MR. MILLER. 

Monday, January 11, 1869. 

Mr. Trumbull presented the credentials of H. Y. M. Miller, elected a Senator by the 
legislature of the State of Georgia, for the unexpired portion of the term commencing on 
the 4th day of March, 1865; which were read. 

Ordered , That they be referred to the Committee on the Judiciary. 

Thursday, February 4, 1869. 

The President pro tempore presented resolutions adopted by the National Union Re¬ 
publican Association of Georgia, approving the platform and action of the Republican 
party and the policy of Governor Bullock; condemning the expulsion of colored members 
from the legislature of Georgia, and praying that Joshua Hill and H. V. M. Miller may 
not be admitted to the Senate as Senators from Georgia; which were referred to the Com¬ 
mittee on the Judiciary. 

Wednesday, February 17, 1869. 

Mr. Stewart, from the Committee on the Judiciary, to whom were referred the cre¬ 
dentials of Hon. H. Y. M. Miller, elected a Senator liy the legislature of Georgia, re¬ 
ported against admitting him to a seat in the Senate. 

[First session of the Forty-first Congress. ] 

CREDENTIALS OF MESSRS. HILL AND MILLER. 

Tuesday, March 9, 1869. 

On motion by Mr. Trumbull, 

Ordered, That the credentials of Joshua Hill and H. Y. M. Miller, Senators-elect from 
the State of Georgia, on the files of the Senate, with the accompanying papers, be re¬ 
ferred to the Committee on the Judiciary. 

Wednesday, May 17, 1869. 

Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre¬ 
dentials of Joshua Hill and H. V. M. Miller, elected Senators by the legislature of the 
State of Georgia, reported them back to the Senate and moved that they lie on the table; 
which motion was agreed to. 

[Mr. Trumbull stated (Congressional Globe, 1st sess. 41st Cong., page 102) that the 
committee were of opinion that the credentials should lie upon the table until action 
had been taken upon the bill in regard to the State of Georgia; that he was opposed to 
that recommendation and believed it the duty of the Senate to act upon the credentials 
at once. ] 

CREDENTIALS OF MESSRS. HILL AND MILLER, AND WHITELEY AND FARROW 
[Second session of the Forty-first Congress. ] 

Monday, February 14, 1870. 

On motion by Mr. Trumbull, 

Ordered , That the credentials of H. Y. M. Miller and Joshua Hill, as Senators from 
the State of Georgia, on the files of the Senate, be referred to the Committee on the Ju¬ 
diciary. 


WHITELEY AND FARROW VS. HILL AND MILLER. 


353 


Friday, July 15, 1870. 

Mr. Stewart presented the credentials of Richard H. Whiteley, elected a Senator by 
the legislature of the State of Georgia for the unexpired portion of the term ending 
March 3, 1871; which were read. 

Ordered , That they lie on the table. 

Mr. Stewart presented the credentials of Henry P. Farrow, elected a Senator by the 
legislature of the State of Georgia for the unexpired portion of the term ending March 3, 
1873; which were read. 

Ordered , That they lie on the table. 


[Third session of the Forty-first Congress.] 

^ . Tuesday, December 13, 1870. 

On motion by Mr. Stewart, 

Ordered ’, That the credentials of Richard H. Whiteley and Henry P. Farrow, Senators- 
elect from the State of Georgia, presented at the last session, be referred to the Commit¬ 
tee on the Judiciary. 

Monday, January 23, 1871. 

Mr. Trumbull, from the Committee on the Judiciary, to whom were referred the cre¬ 
dentials of Joshua Hill, H. V. M. Miller, Henry P. Farrow, and Richard H. Whiteley, 
claiming to be Senators-elect from the State of Georgia, submitted a report (No. 308), 
accompanied by the following resolution: 

11 Resolved , That Joshua Hill has been duly elected Senator of the United States by 
the legislature of the State of Georgia, and is entitled to take his seat on taking the 
oaths required by the Constitution and laws. ” 

Mr. Stewart asked, and obtained, leave of the Senate to submit the views of a minor¬ 
ity of the Committee on the Judiciary in reference to the election of Senators from the 
State of Georgia. 

Ordered , That they be printed to accompany the report of the Committee of the Ju¬ 
diciary thereon. 


REPORT OF COMMITTEE—MAJORITY AND MINORITY.* 

[The committee consisted of Messrs. Trumbull (chairman), Stewart, Edmunds, Conk- 
ling, Rice, Carpenter, and Thurman.] 

In the Senate of the United States. 

January 23, 1871.—Ordered to be printed. 

Mr. Trumbull, from the Committee on the Judiciary, submitted the following report: 

The Committee on the Judiciary, to whom were referred the credentials of Joshua 
Hill, H. V. M. Miller, Henry P. Farrow, and Richard H. Whiteley, claiming to have 
been elected Senators from the State of Georgia, submit the following report: 

The credentials of all four of the claimants are sufficiently formal to entitle them to 
seats if they were otherwise entitled, but it is manifest that only two can be admitted 
under any circumstances. The Constitution declares that ‘ ‘ the Senate of the United 
States shall be composed of two Senators from each State, chosen by the legislature 
thereof. ’ ’ 

The history of the reconstruction of the State of Georgia is succinctly set forth in a 
report made to the Senate by the Judiciary Committee on the 2d of March last, from 
which the following are extracts: 

“The acts of Congress of March 2, 1867, and March 23, 1867, called the reconstruc¬ 
tion acts, made all existing government in that State provisional, and subject to the 
paramount authority of Congress. That paramount authority, by the same act, confided 
to the military arm of the executive department certain specified powers and duties for 
the preservation of peace and order in the State, until the people of this State should 
frame a new government and elect public officers under it, and be admitted again into 
full relation with the Union. 

“Under these acts, and particularly that of June 25,1868, a form of government was 
adopted by the people of Georgia, and they elected under it a legislature and governor. 
And in July, 1868, after sundry difficulties touching the eligibility of certain members 
of the legislature had been disposed of by the legislature, with the approval of the 
general in command of the district, the new government was by him declared duly 

* Taken from Senate Reports, 3d sess. 41st Cong., No. 308. The accompanying documents mak¬ 
ing pages 8-16.21-36, and 43-65, are omitted. 

S. Doc. 11-23 






354 


SENATE ELECTION CASES. 


organized, and the governor was inaugurated, and the conduct of affairs was thereupon 
by the military commander turned over to the civil officers, and the military authority 
ceased. 

‘ ‘ The culmination of this action is found in the following orders of General Meade, 
commanding the district: 


“ ‘ [General Orders No. 101.] 

“ ‘ Headquarters Third Military District, 

“‘Department of Georgia, Florida, and Alabama, 

Atlanta, Ga., July 14, 1868. 

“ ‘Whereas official information has been received at these headquarters from the gov¬ 
ernor-elect of the State of Alabama that the legislature of said State, elected under the 
provisions of General Orders No. 101, series of 1867, from these headquarters, had 
assembled and complied with the requisitions of the act of Congress, which became a 
law June 25, 1868, entitled “An act to admit the States of North Carolina, South 
Carolina, Louisiana, Georgia, Alabama, and Florida to representation in Congress;” and 
whereas said act states that on compliance with the conditions therein set forth by any 
State the officers of said State, duly elected and qualified under the constitution thereof, 
shall be inaugurated without delay: It is therefore ordered— 

“ ‘ I. That all civil officers holding office in this State, whether by military appoint¬ 
ment or by failure to have successors qualified, shall promptly yield their offices and 
turn over to their properly elected and qualified successors all public property, archives, 
books, records, &c., belonging to the same. 

“‘II. Whenever the military commander of the subdistrict of Alabama is officially 
notified of the inauguration of the State government-elect, military authority, under 
the acts of Congress known as the reconstruction laws, will be at an end in said State; 
and it is made the duty of the subdistrict commander to transfer everything apper¬ 
taining to the government of said State to the proper civil officers, and to abstain in 
future, upon any pretext whatever, from any interference with, or control over, the 
civil authorities of the State, or the persons and property of the citizens thereof. 

“ ‘ III. On the inauguration of the civil government all prisoners held in custody or 
by bonds for offenses against the civil law will be turned over to the proper civil 
authority. In the mean time writs of habeas corpus from the United States courts will 
be respectfully obeyed, and the decisions conformed to. Writs from State courts will 
have respectful returns made, stating prisoners are held by authority of the United 
States, and can only be released by writs issued by United States courts. 

“ ‘ By order of Major-General Meade. 

“‘R. C. DRUM, 

“ ‘Assistant Adjutant-General.' 

(Similar orders were given with reference to the States of Georgia and Florida.) 


“‘Headquarters Third Military District, 

“ ‘ Atlanta, Ga., July 20, 1868. 

“ ‘Governor: I have the honor to acknowledge the receipt of your letter of the 18th 
instant, advising me that a committee of the house of representatives had waited on 
you and verbally informed you “that the house, having made a careful investigation 
into the eligibility of its members, have decided, by a vote of the house, that all persons 
now in their seats are eligible. ’ ’ 

“ ‘ I have already acknowledged the receipt of your letter of the 17th, reporting the 
action of the senate on the same subject. 

“ ‘ I have now to advise and instruct you that each house having complied with the 
requisitions of my communication of the 18th instant, by examining into and deciding 
on the eligibility of their members, under the acts of Congress and the fourteenth 
article constitutional amendment, I have no further opposition to make to their pro¬ 
ceeding to the business for which they were called together, as I consider them legally 
organized from the 18th instant, the date of the action of the house. 

“ ‘Very respectfully, your obedient servant, 

“‘GEORGE G. MEADE, 

“ ‘ Major-General, U. S. A. 

Hon. R. Bullock, Provisional Governor of Georgia. 

“ ‘A true copy: 


“‘R. C. DRUM, 

‘ ‘ 1 Assistant Adjutant-General.' 


WHITELEY AND FARROW YS. HILL AND MILLER. 


355 


“‘Headquabtebs Thied Militaby Distbict, 

11 '‘Atlanta, Ga., July 21, 1868. 

Civil government being established in Florida and Alabama, and the Georgia legis¬ 
lature haying to-day passed the fourteenth article constitutional amendment, indicat¬ 
ing that in a few days this State will have civil government re-established, I am pre¬ 
pared to dispense with one of the regiments of infantry in this district, and would 
recommend the withdrawal of the Fifteenth regiment, now in Alabama. Please notify 
me at the earliest moment, that I may make the proper arrangements for relieving it. 

“‘ GEORGE G. MEADE, 

. . “ ‘ Major-General, U. S. A. 

Brevet Maior-General Schbivee, 

“ ‘War Department, Washington, D. C. 


‘“A true copy: 


“‘R. C. DRUM, 

“ ‘ Assistant Adjutant-General .’ 


“ ‘ Headquabtebs Thied Militaby Distbict, 

“‘ Atlanta, Ga., July 21, 1868. 

“ ‘ Both houses of the legislature of Georgia having examined into and decided upon 
the qualifications of their respective members, under fourteenth article constitutional 
amendment, I yesterday instructed the provisional governor to communicate to each 
house that I considered their organization legal, and withdrew any opposition to their 
proceeding to the business which had called them together. To-day both houses, by de¬ 
cided majorities, have passed the constitutional amendment known as article 14, and 
will, without doubt, at once otherwise comply with the requisition of the act of June 25, 
1868. 

‘“GEORGE G. MEADE, 

“ 1 Major-General. 

“‘General U. S. Gbant, Washington, D. CJ 


“‘Headquabtebs Thied Militaby Distbict, 

“ ‘ Atlanta, Ga., July 22, 1868. 

“ ‘Yesterday the governor-elect of Georgia notified me officially that both houses of 
the general assembly of Georgia had by solemn act complied with the requisitions of 
the act of Congress which became a law June 25, 1868; and to-day I have witnessed the 
inauguration of the governor-elect. The State of Georgia is therefore, under the act of 
Congress, entitled to representation. The official document will be carried to-day by 
Bvt. Brig. Gen. R. C. Drum, sent to Washington for this purpose. 

“‘GEORGE G. MEADE, 

“ ‘ Major-General, U. S. A. 


“ ‘A true copy: 


“ ‘ R. C. DRUM, 

‘ ‘ ‘Assistant Adjutant-General. 


“ ‘General U. S. Gbant, Washington, D. O. 1 


“The State being then in fact relieved from military government,proceeded, in the 
manner provided by its constitution, to appoint judges and other officers of justice, and 
to fill up completely its organization of State government. 

‘ ‘ The legislature, in the forms prescribed by the laws of the United States, pro¬ 
ceeded to elect Senators to represent the State in Congress, and it also passed many laws. 

11 During all this time, however, certain persons—variously claimed to number from 
ten to twenty-five, but not so numerous as to affect the organization of the legislature 
in respect to a constitutional quorum of legal members—held seats in the legislature 
under the forms of election, but who were or are understood to have been disqualified 
therefor by force of the fourteenth amendment of the Constitution of the United States. 

“After these events, and in September, 1868, a majority of the senate and house of 
representatives, respectively, including the persons so claimed to have been disquali¬ 
fied, proceeded to decide that persons of African descent (of whom there were several in 
each house) could not, for that cause, hold seats in the legislature, and to exclude them 
therefrom in a body, without giving them any voice in deciding the question; and 
thereupon they filled up the seats so made vacant by the admission of the white per- 


356 


SENATE ELECTION CASES. 


eons having the next largest number of votes at the election for members of the legisla¬ 
ture. 

“ These events last named, and the circumstances existing in connection with them, 
led to the passage of the act of December 22, 1869. 

‘ ‘ The first section of that act made it the duty of 1 the governor of the State of 
Georgia to summon all persons elected to the general assembly of said State, as appears 
by the proclamation of George G. Meade, general, ’ &c., dated June 25, 1868, to appear 
at the capitol on a day named. 

“ And it further directed that ‘ thereupon the said general assembly of said State shall 
proceed to perfect its organization in conformity with the Constitution and laws of the 
United States, according to the provisions of this act.’ 

‘ ‘ The persons named in this act, and in the proclamation, were those only who had re¬ 
ceived a majority of the votes at the election; and they were, in the aggregate, the same 
body of men who had composed the legislature at its organization, and thenceforth, un¬ 
til the exclusion of the negro members and the introduction of minority candidates into 
their places. 

“The law, thus ascertaining the persons who were to assemble, then proceeds to direct 
that ‘ the said general assembly shall proceed to perfect its organization, ’ &c. No author¬ 
ity is conferred upon the governor to do it, nor upon the military commander. The power 
and duty to perfect its organization is conferred on the assembly exclusively by the very 
words of the act. There is no room for inference or construction. 

“ The next three sections provide the method by which the houses are to perfect 
their organization, i. e., by taking certain oaths and by the election of officers, and 
they also provide that the neglect to take such oaths shall disqualify the persons so 
neglecting and make them ineligible to seats, and that false swearing in taking such 
oaths shall be perjury, and be punished as such. 

“ The next section (5th) provides severe penalties for any interference with the taking 
of such oaths and participation in the proceedings. 

‘ ‘ The seventh section requires the President to employ the military forces of the 
United States so far ‘ as may be necessary to enforce and execute the preceding provis¬ 
ions of this act. ’ 

“ Under this act the governor of Georgia did summon the persons elected to the legis¬ 
lature, as named in the proclamation ol General Meade, to assemble at the State-house 
in Atlanta on the 10th day of January, 1870. 

‘ * In pursuance of this proclamation the geater part, and nearly all the persons 
named, assembled at the time and place named. 

‘ ‘ A quorum of the Senate took the oaths prescribed, and organized as provided for in 
the act. 

“The members of the house of representatives were called to order by one Harris, 
not a member or officer, but who had been designated for that purpose by the governor. 
Some of the members protested against this and attempted to elect a speaker pro tempore , 
but were prevented by said Harris and his assistants; and thenceforth, until the final 
organization of the house, Harris continued to preside and to adjourn the body from time 
to time, according to his own pleasure, without consulting the house, and to determine 
what persons who had appeared as members should be permitted, from day to day, to 
take the prescribed oaths, and take their seats. 

“ This proceeding was in substance ratified by the general in command at Atlanta, 
who had been, after the passage of the act of December 22, 1869, appointed to the com¬ 
mand of Georgia, as a military district under the act of March 2, 1867. 

“ It having been suggested to the general in command that sundry persons had taken 
or were about to take the oaths prescribed in the act of December 22, 1869, falsely, he 
directed that those accused of such improper conduct or purpose should, for the time being, 
be excluded from participation in the proceedings, and thereupon organized a board o e 
military officers for the purposes set forth in the following general orders: 

“ ‘ [General Orders No. 3.] 

“ ‘ Headquarters Military District of Georgia, 

‘ ‘ 1 Atlanta, Ga ., January 13, 1870. 

“ ‘ In pursuance of instructions received from the headquarters of the Army, a hoard 
is hereby appointed to inquire into the eligibility of W. T. Winn, of Cobb County; John 
J. Collier, of Dooly County; A. W. Holcomb, of Milton County; W. J. Anderson, of 
Houston County; B. B. Hinton, of Marion County; andC. J. Welborn, of Union County, 
to seats in the legislature of Georgia, under the reconstruction acts. 

“ ‘ The board will meet and organize at once, and will have power to administer oaths 
and send for persons and papers. They will permit the persons whose eligibility is in 
question to appear before them either in person or by attorney, and will also permit the 


WHITELEY AND FARROW VS. HILL AND MILLER. 


357 


appearance before them of persons who deny the eligibility of said W. T. Winn, J. J. 
Collier, A. W. Holcomb, W. J. Anderson, B. B. Hinton, and C. J. Welbom. 

* V The board will keep a complete and accurate record of the proceedings and of all 
testimony which may be given before them, and will transmit the same to these head¬ 
quarters with its report. 

“ ‘ Detail for the board. —Bvt. Maj. Gen. T. H. Ruger, United States Army; Bvt. Brig. 
Gen. T. J. Haines, United States Army; Maj. Henry Goodfellow, judge-advocate, United 
States Army. 

“ ‘By order of Brevet Major-General Terry: 

“‘J. H. TAYLOR. 

“ ‘Assistant Adjutant-General. 

“ ‘ Official: 


“ ‘ R. P. HUGHES, 

“ ‘Acting Assistant Adjutant-General.* 


“ 4 [General Orders No. 4.1 

‘“Headquarters Military District of Georgia, 

“ ‘ Atlanta, Ga., January 15, 1870. 

“ ‘The board of officers convened by General Orders No. 3, current series, from these 
headquarters, is hereby directed, in addition to the duty assigned to them by that order, 
to inquire into the eligibility under the reconstruction acts of the following-named mem- 
bers-elect of the house of representatives, viz: 

“ ‘ Isham Raddish, of Appling County; R. W. Phillips, of Echols County; E. M. Tal¬ 
iaferro, of Fulton County; J. H. Nunn, of Glascock County; R. A. Donaldson, of Gor¬ 
don County; W. P. Price, of Lumpkin County; J. N. Harris, of Murray County; L. 
H. Walthall, of Polk County; L. C. A. Warren, of Quitman County; Thomas F. 
Rainey, of Schley County; C. C. Humber, of Stewart County; G. N. Harper, of Sum¬ 
ter; Frank Wilchar, of Taylor County; John B. Sorrells, of Walton County; J. D. 
Smith, of Ware County. 

“ By order of Brevet Major-General Terry: 

“‘J. H. TAYLOR, 

“ ‘Assistant Adjutant-General. 1 


“ The board proceeded to discharge its duties, and on the 25th day of January, 1870 
the result of its action was promulgated as follows: 

“ 4 [General Orders No. 9J 

“ ‘Headquarters Military District of Georgia, 

“Atlanta, Ga., January 25, 1870. 

“ 4 Whereas the board convened by General Orders No. 3, current series, from these 
headquarters, consisting of Bvt. Maj. Gen. T. H. Ruger, colonel Eighteenth United States 
Infantry; Bvt. Brig. Gen. T. J. Haines, commissary of subsistence; and Maj. Henry 
Goodfellow, judge advocate, United States Army, has made its report in writing, by 
which it appears that R. A. Donaldson, of Gordon County; E. M. Taliaferro, of Fulton 
County, and J. H. Nunn, of Glascock County, members-elect of the house of represent¬ 
atives of Georgia, are not eligible to seats therein under the laws of the United States: 
Therefore it is hereby ordered that the said R. A. Donaldson, E. M. Taliaferro, and J. 
H. Nunn be, and they hereby are, prohibited from taking part in the organization of 
said house, or from attempting to exercise the functions of a member thereof; and 

“ ‘ Whereas the said board have found that Thomas F. Rainey, of Schley County; J. 
N. Harris, of Murray County; R. W. Phillips, of Echols County; L. C. A. Warren, of 
Quitman County; Joseph D. Smith, of Ware County; W. P. Price, of Lumpkin County; 
J. B. Sorrels, of Walton County; G. N. Harper, of Sumter County; C. C. Humber, of 
Stewart County; L. H. Walthall, of Polk County; and Isham Raddish, of Appling 
County, are eligible to seats in the said house under the laws of the United States, no 
objections will be made to their participating as members in the organization of the 
house; and 

‘“Whereas it appears that Frank Wilchar, of Taylor County, has since the commence¬ 
ment of the session of the board been, and is now reported to be, absent from the city, 
so that the board has not been able to determine in his case, it is therefore ordered that 
the said board still hold his case under consideration, and that in the mean time, and 


358 


SENATE ELECTION CASES. 


until his case be heard and determined, said Wilchar be prohibited from taking any part 
in the organization or participating in the proceedings of the house; and 

‘“Whereas J. B. Burtz, of Mitchell County; J. A. Brinson, of Emanuel County; A. T. 
Bennett, of Jackson County; A. M. George, of Baker County; David Golf, of Randolph 
County; William J. Hudson, of Harris County; D. Johnson, of Wilcox County; Henry 
C. Kellogg, of Forsyth County; J. W. Meadows, of Johnson County; J. H. Penland, of 
Union County; Robert C. Surrency, of Tatnall County; J. R. Smith, of Coffee County; 
Hiram Williams, of Dooly County; John C. Drake, of Upson County; J. T. Ellis, of 
Spalding County; J. M. Routh,of Worth County, persons elected to said house, have re¬ 
fused, declined, neglected, or been unable to take one of the oaths prescribed by the act 
of December 22, 1869, although ample opportunity so to do has been given them, and 
have thus by the terms of said act become ineligible to seats in said house, and have 
also filed with the Hon. R. B. Bullock, governor, their applications to the Congress of 
the United States for relief from their disabilities, thus admitting their ineligibility to 
hold the offices to which they were elected: It is therefore ordered that the said persons 
be, and they hereby are, prohibited from taking seats in said house or participating in 
the organization or proceedings thereof. 

“ ‘By order of Brevet Major-General Terry: 

“‘J. H. TAYLOR, 

' ‘ ‘ ‘Assistant Adjutant-General .’ 


“ By this action three of the members-elect of the house were excluded on proof of 
their ineligibility, and eleven admitted on proof of their being eligible. 

“ One person was prohibited from participating until the further order of the general, 
he not having arrived at Atlanta, and his case not having been disposed of. 

‘ ‘ And it was further declared that sixteen other members-elect were excluded from 
participating in the proceedings, as having refused, declined, neglected, or been unable 
to take the oaths, although ample opportunity so to do had been afforded them, and 
because they had applied for relief from disabilities. 

“These steps having been taken, the persons admitted to seats proceeded to elect a 
speaker on the 26th of January, 1870, and the result was officially communicated to 
headquarters at Washington, as follows: 


“ ‘Atlanta, Ga., January 26, 1870. 

‘ ‘ ‘ House organized this morning by electing McWhorter, Republican candidate, as 
speaker. On report of board three persons were excluded as ineligible; eleven of those 
inquired into were pronounced eligible; sixteen who refused to take oath were declared 
to have become ineligible by their refusal; and one, whose case was sent to the board, 
having failed to appear, and being absent from the city, was forbidden to take part in 
organization. After careful examination of act of December 22, I decided that the fourth 
section would not permit me to seat the next highest candidates in place of ineligible 
persons. 

“‘ALFRED H. TERRY, 

“ ‘Brevet Major-General. 

“‘General E. D. Townsend.’ 


“ The intervening action of the military commander terminated at this time. 

“ Upon this history the committee are constrained to say that, in their opinion, the 
before-stated action of the military authorities was not authorized by law. 

‘ ‘ The legislature elected in Georgia under the acts of Congress authorizing it was not a 
part of the government declared by the law not to be legal and to be provisional; but it 
was a part of the new government designed by Congress to take the place of the provis¬ 
ional government, as a permanent one. This seems perfectly clear from the words of 
the law; and this view of the subject was taken by the General of the Army by his order 
to General Meade, of March 2, 1868 (Meade’s Rep., page 24), and again in the same way 
on the 29th of April, 1868 (Meade’s Rep., page 30), as follows: 


“ ‘Washington, D. C., March 2, 1868. 

“ ‘ The election proposed by the convention for officers under the new constitution I do 
not consider as an election for officers under the provisional government, referred to in 
section 6 of the act approved March 2, 1867. It is clear to my mind that a proper con¬ 
struction of section 4 of act approved March 23, 1867, does not authorize district com¬ 
manders to fix or change the day of election after it has been designated by the conven¬ 
tion. 


“ ‘Maj. Gen. George G. Meade, 

“ ‘Commanding Third Military District.' 1 


“ ‘U. S. GRANT, General. 


WHITELEY AND FARROW VS. HILL AND MILLER. 


359 


x “‘Headquarters War Department, 

“ ‘ Washington , D. C ., April 29, 1868. 

‘“I have carefully read your letter of 16th April, and its inclosures. I see nothing 
in them to change my opinion as expressed to you in my dispatch of March 2, 1868. 

“ ‘ The officers elected under the new constitution of Georgia are not officers of the pro¬ 
visional government referred to in the reconstruction acts, nor are they officers elected 
under any so-called State authority, and are not therefore required to take the oath pre¬ 
scribed in section 9, act of July 19, 1867. The eligibility to hold office must be deter¬ 
mined by the new constitution, and the amendment to the Constitution of the United 
States designated as article 14. 

“ ‘U. S. GRANT, General. 

“ ‘Maj. Gen. George G. Meade, 

“ ‘ Commanding Third Military District 

“It does not follow from this that a legislature thus situated, and before the admis¬ 
sion of the State, is independent of the laws of Congress. It is not; but it is thought 
that the correction of any misbehavior of it or its members rests with Congress, and not 
with the military. 

‘ ‘ But however this might have been under the acts of March, 1867, the act of Decem¬ 
ber 22, 1869, must be the special guide for the present purpose. It must be supposed 
that it speaks the will of Congress, even though that will may not accord with the acts 
of 1867, and even though it should be conceded (as it is not) that it would have been 
better had full discretion over the seating of the members of the Georgia legislature been 
left 1o the general in command. The question is what the law is, not what it might 
have been, or what it might be wished to be. 

“The act only invokes military action in aid of what it provides shall be done; no 
more. 

“ The act, as has been seen, is clear and simple in its provisions. The governor was 
empowered to do one thing only, i. e. , summon the members-elect. 

‘ ‘ That being done, the next duty was imposed in express terms on the general assem¬ 
bly of Georgia and its several members. The consequences of a failure to perform that 
duty were next pointed out in explicit language, i. e ., those who should neglect to 
qualify should not have seats, and those who should falsely obtain them should be 
punished by a specified civil tribunal in a specified way. And for these purposes, and 
subject to these conditions, it was provided, in order to secure the free and full compli¬ 
ance with the act, that any interference with members in their attempt to swear in, or 
in sitting, should be criminal. 

“It has been suggested that the words in section 4, ‘entitled to compose such legis¬ 
lature,’ might be construed to vest in the military commander the power to decide 
what persons were entitled to sit; but it does not appear possible to do this in the face 
of the express prior provisions of the act giving every member the right of his own will 
to take one of the oaths prescribed, and in the face of the subsequent provisions declar¬ 
ing the interruption of any person ‘ elected as aforesaid ’ in taking the oaths and his 
seat to be criminal and punishable. But the clause in question does not look to con¬ 
ferring any authority, but is only a definition or description of the persons upon whom 
the law conferred the power to act, i. e., those who by Meade’s proclamation were elected 
and who should swear in. 

“It has been seen that the legislature, as originally elected and organized in 186-, 
was not a ‘provisional’ legislature within the purview of the acts of reconstruction, but 
that it was a State legislature authorized by Congress to be elected and assembled, but 
not having absolute legislative power until the admission of the State to representa¬ 
tion. And in this condition it is worthy of notice that when the act of December 22, 
1869, was under consideration, this committee reported it with a provision making the 
legislature ‘ provisional ’ until the further action of Congress, and that provision was 
rejected by the Senate. 

“For these reasons the committee is of opinion that the acts of Harris beforementioned, 
and the action of the general in command in excluding the persons who either had taken 
or were willing to take the oaths provided were not warranted by law. 

‘ ‘ The order excluding those who confessedly declined to take the oaths was purely 
ministerial, and may be regarded as in proper compliance with the seventh section of 
the act. 

“ it is due to the general in command to say that the circumstances justify the com¬ 
mittee in reporting that his whole conduct in the affair was under the sincere belief 
that he was acting within the limits of his lawful authority, and that under circum¬ 
stances of much difficulty and delicacy he conducted affairs (although outside of the 
law) in such a manner as to command the personal confidence and respect of all parties 
and persons concerned. And the committee is also of opinion that the three persons 


360 


SENATE ELECTION CASES. 


excluded, who desired 1 o qualify, were persons who would have violated the act bj 
taking the oath, so that in respect to them there was no actual injustice done. 

“After the house of representatives had thus organized, it admitted to seats several 
persons who, in the elections, had been candidates against the persons so excluded, bul 
had been beaten, receiving only a minority of the votes cast. 

“On the hearing before the committee it was conceded that there was nothing in the 
constitution or laws of Georgia which would warrant such a proceeding, but it was con¬ 
tended that this action was warranted by the general principles of parliamentary law, 
which, it was claimed, authorized the body charged with deciding who is elected to 
treat as not cast all votes given for an ineligible candidate, and so to conclude that the 
eligible candidate having the greatest number of votes is the choice of the majority ol 
the electors, although he in fact received only the votes of a minority. 

‘ ‘ However this may be in cases in which a plurality elects, or in which the want of 
capacity in the candidate is of such a manifest and indisputable and notorious character 
as to warrant the presumption that the electors in voting for him intended to throw 
away their votes (which the committee do not decide), it is clear that no such rule can 
be applied to cases of the nature now under consideration, in which the test of eligibility 
is somewhat broader than the one existing at the time of the election, and in which, in 
either case, the question depends on the true application of the law to conclusions of 
facts to be drawn from various circumstances, not necessarily notorious or indisputable 
in their character. 

‘‘ The committee are, therefore, obliged to conclude that the persons thus admitted 
were not lawfully entitled to seats in the Georgia legislature. And it should, perhaps, 
be mentioned that on the hearing before the committee on the occasion of the consid¬ 
eration of the act of December 22, 1869, it was contended by the persons asking con¬ 
gressional intervention in the affairs of Georgia that there was no authority for the 
seating of minority candidates by the legislature, as had been done on the expulsion of 
the negro members; and that one distinct ground upon which the passage of that act 
was rested as illegal and revolutionary was that fact. The interpretation of the law 
cannot be made to change according to the changing wishes of those who invoke its 
assistance. 

“The committee, then, report, under the first-named resolution, that in the following 
respects the organization of said legislature has not been warranted by law: 

“1. In the control and direction of its proceedings by Harris. 

“2. In the exclusion from taking the oaths and from seats of the three members- 
elect who offered to swear in. 

“3. In the seating of the persons not having a majority of the votes of the electors. 

‘ ‘ In respect to the second resolution before recited, calling upon the committee to 
report whether any further legislation is necessary in respect to the organization of the 
legislature in Georgia, the committee report that a full hearing was given to both sides 
of the controversy there, and that the representatives of the great body of those who 
contended that the proceedings aforesaid had been illegal and irregular expressed their 
willingness that Congress should refrain from further interference with the organization 
and composition of the legislature, and leave it to proceed in the exercise of legislative 
functions, notwithstanding the matters before mentioned, if the provisions of the con¬ 
stitution of Georgia and the ordinance of its convention could be carried out, providing 
for a fresh election of one-half the senators and all of the members of the house of repre¬ 
sentatives in November, 1870. The other party justifies what has taken place, and of 
course objects to any action on the subject. 

“In this condition of affairs, inasmuch as the errors of the general in command, before 
stated, do not appear to have worked any serious injustice in point of fact, and as the 
error in seating the minority candidates was committed by the house of representatives 
in the exercise of a right ordinarily belonging to it in the first instance; and inasmuch 
as it appears certain that the term of office of the members of the Georgia legislature and 
of its State government will expire at the same time that it would have done had the 
State been fully restored to its place in the Union in July, 1868, and do not commence 
or run from the date of her future admission to representation, and that without refer¬ 
ence to what might be the legal or literal construction of the last clause of the second 
subdivision of the first section of the third article of the constitution of Georgia, in the 
following words: ‘The general assembly may by law change the time of election, and 
the members shall hold until their successors are elected and qualified, ’ any interpreta¬ 
tion of this constitution which should have the effect to allow the extension of the term 
of office of the members of its general assembly at their own will and pleasure, and 
without a fresh expression of the will of the people, would be contrary to the essential 
principles of free institutions, and, if carried into practice, subversive of a republican 
form of government in that State, which would authorize the constitutional intervention 
of the United States to correct it; and it could not have been the intention of the people, 


WHITELEY AND FARROW YS. HILL AND MILLER. 


361 


from whose adoption that constitution derives its authority, to confer such a power as 
this construction would give, nor could such have been the understanding of Congress 
when it passed the act of June 25, 1868; and inasmuch as the chief body of those 
aggrieved by the wrongs before stated is, upon the faith of this conclusion of the com¬ 
mittee in the respects last mentioned, willing to accept the existing state of things; and 
as it appears to be of much importance to the people of the whole country as well as to 
the people ot Georgia that the final and harmonious restoration of all the States lately 
in rebellion to lull representation, privileges, and responsibilities as members of the 
Union should be accomplished at the earliest practicable moment, in order that the united 
and friendly elforts of the whole people may be given to the arts of peace and the means 
of true progress, the committee feel justified in omitting to recommend any further 
legislation on the subject of the organization of the legislature in Georgia.” 

Under the act of June 25, 1868, the legislature of Georgia, consisting by the constitu¬ 
tion of that State of forty-four senators and one hundred and seventy-five representatives, 
was convened on the 4th of July, 1868, and, after having, so far as formality of procedure 
is concerned, complied with the provisions of that act, proceeded on the 28th of July, 
1868, to the election of persons to represent said State in the Senate of the United States. 
The election was consummated in joint meeting of the two houses on the next day by the 
following vote: For Senator for the term ending March 4,1873, Joshua Hill received 11C 
votes; Joseph E. Brown received 94 votes; Alex. H. Stephens received 1 vote; C. W. 
Styles received 1 vote; and Hill was declared duly elected. For Senator for the term 
ending March 4, 1871, the vote was as follows: H. Y. M. Miller, according to the table 
as it appears in the journal, received 120 votes, but on counting the names of the persons 
recorded as voting, Miller received 117 votes; Foster Blodgett received 72 votes; J. L. 
Seward received 13 votes; A. T. Akerman received 6 votes; and Miller was declared duly 
elected. The colored members of the legislature, as well as those alleged to be disquali¬ 
fied, were present and participated in this election. It was not till September 3, more 
than a month afterward, that the legislature refused to recognize colored persons as mem¬ 
bers. Appended is a copy of the order of Major-General Meade, giving a list of the 
persons elected to the senate and house of representatives of Georgia, marked Exhibit A; 
also a copy of the vote in detail for Senators at the time Hill and Miller were elected, 
showing for whom each member voted, marked Exhibit B. Three of the members who 
voted for Hill, to wit, Donaldson, Taliaferro, and Nunn, after having taken the oaths 
required by the act of December 22, 1869, were, on investigation of a military commission, 
declared ineligible, and prohibited by military order from further participation in the 
reorganized legislature; and sixteen others, eleven of whom, to wit, Burtz, Drake, Ellis ol 
Spalding County, George, Goff, Hudson, Johnson of Wilcox, Kellogg, Meadows, Penland, 
and Williams of Dooly, voted for Hill, and one of whom, Surrency, voted for Brown, were, 
by a like order, excluded from participating in said reorganization, as having refused or 
been unable to take the oaths required, and because they had applied for relief from polit¬ 
ical disabilities. 

No inquiry into the eligibility of any of the sixteen thus excluded was made, and the 
order excluding two of them, to wit, Wilchar and Bennett, was subsequently revoked. 
Two others, M. J. Crawford and John C. Drake, have made affidavit that they were en¬ 
titled to seats in the reorganized legislature, which by threats of prosecution they were 
deterred from occupying at the time. Their affidavits are appended, marked Exhibits C 
and D. Another of the sixteen, J. H. Penland, states as follows: “I was induced tc 
sign an application for pardon through mistake, and did not mean thereby to admit that 
I labored under any disability to take the necessary oaths, and resume my seat in th€ 
house as a member from the county of Union. ’ ’ A copy of Penland’s statement from the 
journal of the house is appended, marked Exhibit E. 

The journal shows that Bradley, one of the senators who voted for Brown, was subse¬ 
quently, on the 13th of August, 1868, declared to have been ineligible at the time of his 
election, in consequence of having been convicted of a penitentiary offense, the con¬ 
stitution of the State declaring any person ineligible who has been convicted of a crime 
punishable by imprisonment in the penitentiary. Before the vote was taken declaring 
Bradley ineligible, he resigned his seat in the senate. 

Deducting those who were excluded by military order from taking part in the reorgan¬ 
ized legislature, the result would be as follows: Hill, 96 votes; Brown, 93 votes; Stephens, 
1 vote; Styles, 1 vote. 

If the votes of Crawford, Drake, and Penland, who claim that they were improperly 
deterred from taking part in the reorganized legislature, be counted, then Hill’s vote 
would be 99; and if Bradley’s vote be deducted, Brown would have but 92 votes. Sev¬ 
enteen of those who voted for Miller, namely, Donaldson, Mason, Taliaferro, Burtz, Drake, 
Ellis, George, Goff, Hudson, Johnson, Kellogg, Meadows, Penland, Rouse, Smith of 
Coffee, Surrency, and Williams, were excluded by military order from taking part in the 
reorganized legislature. Deducting these from the votes cast when he was elected, the 


SENATE ELECTION CASES. 


result would be as follows: Miller, 100 votes; Blodgett, 72 votes; Seward, 13 votes, 
Akerman, 6 votes. 

Besides the persons excluded by military order from taking part in the reorganized 
legislature, six senators, namely, Graham, Moore, Collier, Wynne, Anderson, and Mc- 
Cutchen, and four representatives, namely, Crawford, Long, Taliaferro, and McCullough, 
took no part in the legislature as reorganized, and minority candidates were seated in 
their places. No investigation into the eligibility of these six senators and four repre¬ 
sentatives appears to have been had. One of them (McCutchen) deceased about the time 
of the reorganization. The act of December 22, 1869, did not specify any time within 
which the persons declared elected by General Meade’s proclamation should appear and 
qualify in the legislature as directed to be reorganized. Of the above senators and rep¬ 
resentatives, six, namely, Anderson, Moore, McCutchen, Crawford, Long, and Smith, 
voted for Hill, and one, Graham, voted for Styles. 

The proceedings in the election of H. P. Farrow and R. H. Whiteley took place in the 
reorganized legislature, February 15 and 16, 1870. In the proceedings of Tuesday, Feb¬ 
ruary 15, in the house of representatives, the vote for Senator for the term ending March 
4, 1873, was as follows: Henry P. Farrow, 80 votes; scattering, 2 votes. And for Sen¬ 
ator for the term ending March 4, 1871, Richard H. Whiteley, 82 votes; scattering, 1 
vote. 

The constitution of Georgia declares that the senate shall consist of forty-four senators, 
and the house of representatives of one hundred and seventy-five representatives, and 
requires a majority of each house to constitute a quorum to do business. At the time of 
the election of the Senators last named one hundred and fifty-seven persons, of whom 
three were prohibited by military order from participating in the proceedings, and thirteen 
were minority candidates, whose names do not appear as elected by the proclamation of 
General Meade, had been sworn in as members of the house of representatives; and one 
of the sworn members, Robert Lumpkin, is said to have deceased before the Senatorial 
election. Deducting the thirteen minority members from the one hundred and fifty- 
seven, would leave one hundred and forty-four qualified members, of whom the journal 
shows but seventy-one to have been present at the time of Farrow’s election by the house. 
If the three members excluded by military order, and the one said to have deceased, in 
addition to the minority members, be deducted, it would leave but one hundred and forty 
subsisting members; eleven of the thirteen voted for Farrow. February 2, 1870, on the 
question of the ratification of the fourteenth amendment to the Constitution of the United 
States, only seventy-one, out of one hundred and fifty-two sworn members of which the 
house then consisted, cast their votes, six of which were given by minority members. 

The journal of the proceedings of the joint assembly of the two houses on Wednesday, 
February 16, shows that at 12 o’clock the senate attended in the hall of the house of rep¬ 
resentatives, and then follow the following entries: ‘ 1 The general assembly then proceeded 
to consolidate the vote of the two houses cast on yesterday for a United States Senator 
for the term ending March 4, 1873, and on consolidating the same it appeared that the 
Hon. Henry P. Farrow had received 109 votes; scattering, 2 votes.” Then follows a list 
of the names of the senators, twenty-nine in all, and of the representatives, eighty in all, 
who voted for Mr. Farrow, and “scattering two,” and Henry P. Farrow “was declared 
duly elected United States Senator for the term ending March 4, 1873.” 

A similar entry is made in the journal as to the election of R. H. Whiteley for the term 
ending March 4, 1871, except that Whiteley received 110 votes, and there was scattering 
1 vote. (A copy of the journal of the house of representatives showing the proceedings 
in full upon the election of Farrow and Whitely in that body on the 15th, and of the 
joint assembly on the 16th of February, is hereto appended, marked Exhibit F.) Brad¬ 
ley, who had been declared ineligible by the senate in consequence of his conviction of a 
penitentiary offense, and had also resigned in August, 1868, without a re-election, ap¬ 
peared in the reorganized legislature of 1870, and voted for Farrow and Whiteley. It 
appears that no vote was taken in the joint assembly, as required by the act of Congress, 
when either house shall have failed to take proceedings as required by the act; but the 
fact that Farrow and Whiteley had received a majority of all the votes cast in each house, 
' on the day previous, without inquiry whether a quorum of each house was present at 
the time, seems to have been regarded as sufficient to perfect their election. 

Of the 109 votes cast for Farrow in both houses, 16 were given by persons not em¬ 
braced in the list of persons named in General Meade’s proclamation as elected, but by 
minority candidates, who had been seated in the places of those elected by the people, 
and who had not qualified in the second instance as members. The names of the minor¬ 
ity members who voted for Farrow are: Crayton, Dunning, Henderson, Mathews, Tray- 
wick, of the senate; and Guilford, Goodwin, Hutchings, Holcomb, Harris of Glascock, 
Johnson of Forsythe, Johnson of Spalding, Jackson, Nesbit of Gordon, Rogers, and 
Thomason, of the house. 

Mathews did not vote for Whiteley, but Armstrong, another minority member, did, 


WHITELEY AND FARROW YS. HILL AND MILLER. 363 


so that Farrow and Whiteley each received the votes of sixteen minority members, some 
of whom received less than half the number of votes cast for the majority candidate in 
whose place they were substituted, and all of whom, according to the unanimous report 
of this committee made at a former session, were admitted to seats in the legislature 
without authority of law. Deducting the 16 votes cast by minority members, and Far¬ 
row received in both houses the votes of ninety-three and Whiteley of ninety-four qual¬ 
ified members. 

Deducting these sixteen minority members from the whole number, one hundred and 
eleven, present in the joint meeting of the general assembly, and it would leave but 
ninety-five present, considerably less than a “majority of all the members elected to both 
houses,” as required by the act of Congress, but more than a majority of the persons 
who had qualified as members in the reorganized legislature. 

The general assembly was organized in July, 1868, in prima facie accordance with the 
constitution of the State, the reconstruction acts of Congress, and the orders of the mili¬ 
tary department. It complied in form with all the requirements necessary to entitle the 
State to representation in Congress, and members were accordingly admitted into the 
House of Representatives of the United States in 1868. Whether either or both houses 
of the general assembly of Georgia admitted persons to sit as members in their respect¬ 
ive bodies who were disqualified by the third section of the fourteenth article of the 
Constitution was at the time a disputed question; but each house appointed a com¬ 
mittee to consider that question, after whose report it was voted by each house that all 
its members were qualified. These reports and the action upon the same appear in 
the appendix to the report made to the Senate by this committee, by Mr. Stewart, at 
the third session of the Fortieth Congress, and are hereto annexed, marked Exhibit G. 
The general assembly thus organized not only elected Senators of the United States, but 
it also elected, as required by the State constitution, State officers, to wit, a secretary of 
state, a comptroller-general, and a State treasurer, all of whom have since been dis¬ 
charging the duties of their respective offices without question. At the same session 
judges of the various courts throughout the State were appointed by the governor, by 
and with the advice and consent of the senate, who have since been and are now pre¬ 
siding in the various courts of the State. The legislature thus organized passed laws 
authorizing the borrowing of money and affecting the general interests of the State, none 
of which have ever been held or supposed to be invalid for the reason that the legislature 
which enacted them was not properly organized. The reason for the passage of the act 
of Congress of December 22, 1869, requiring a reorganization of the general assembly is 
to be found in the wrongful expulsion by the general assembly in September, 1868, of 
its colored members, in the seating of the minority candidates in their places, and in 
continuing in their seats members believed to be disqualified, and in the general disorder 
and violence which prevailed in the State. That act did not declare the general assem¬ 
bly as organized in July, 1868, to have been illegal, or its acts, other than those referred 
to in the act itself, invalid; but it provided for correcting the wrongful and revolution¬ 
ary acts which had been done by it as organized in July, 1868. It is not believed that 
the act of December 22, 1869, would ever have been passed had the colored members 
been permitted to retain their seats and the peace of the State been preserved. 

The body of the general assembly as organized in July, 1868, and as reorganized in 
January, 1870, is not essentially different. Of the forty-four senators and one hundred 
and seventy-three members declared elected by General Meade, only five senators and 
nineteen representatives who participated in the organization of July, 1868, were ex¬ 
cluded or failed to participate in the reorganization in January, 1870, and twenty-one 
minority candidates were improperly admitted to seats in the general assembly, as re¬ 
organized, in their places. The general assembly as organized in July, 1868, and at 
the time of the election of Hill and Miller, contained in each house a constitutional 
quorum of legal members. All the contestants maintained the position before the com- 
mitte that the ineligibility or disqualification of individual members of either house, not 
sufficiently numerous to affect its constitutional quorum, was an immaterial issue. Your 
committee have not, therefore, deemed it necessary to discuss that question further than 
to state the facts in regard to it. Three of the claimants—Joshua Hill, W. P. Farrow, 
and R. H. Whiteley—have had their political disabilities removed by act of Congress of 
June 25 and July 20, 1868. H. V. M. Miller never labored under any of the political 
disabilities imposed by the third section of the fourteenth amendment to the Constitu¬ 
tion of the United States; but it is admitted that he acted as a surgeon in the rebel 
army under an appointment from a colonel of a rebel regiment, and having thus given 
aid to persons in hostility to the United States, cannot take the oath required by the act 
of July 2, 1862. 

The act of July 11, 1868, prescribes a qualified oath to be taken by persons elected or 
appointed to office from whom political disabilities have been removed. Your commit¬ 
tee are of opinion that Joshua Hill was duly elected by a legislature having authority 


364 


SENATE ELECTION CASES 


to elect Senators, and is entitled to take his seat on taking the oaths required by the 
Constitution and laws. Miller, however, is not relieved from taking the oath prescribed 
by the act of July 2, 1862, and in the opinion of your committee is not entitled to take 
his seat; and it follows from the conclusion of the committee as to the proceedings in 
the election of Hill and Miller that neither Farrow nor Whiteley is entitled to a seat. 

The committee recommend for adoption the following resolution: 

Resolved , That Joshua Hill has been duly elected Senator of the United States by the 
legislature of the State of Georgia, and is entitled to take his seat on taking the oaths 
required by the Constitution and laws. 

I agree that Joshua Hill is entitled to take his seat; and I hold that H. Y. M. Miller 
is entitled to take his seat on taking the oath prescribed by the Constitution. 

A. G. THURMAN. 

Mr. Stewart asked and obtained leave to submit the following as the views of the mi¬ 
nority: 

The undersigned, being unable to agree with the report of the majority of the com¬ 
mittee, beg leave to submit the following: 

The main question at issue is, which election shall be held valid; that of Hill and 
Miller, in July, 1868, or that of Farrow and Whiteley, in January, 1870? In the deter¬ 
mination of this question much depends upon the point of time when Georgia became 
entitled to representation in Congress. 

The ground assigned for the exclusion of Senators from the rebel States after the fall 
of the rebellion was that those States were not entitled to representation. 

The report of the Reconstruction Committee, made at the first session of the Thirty- 
ninth Congress, on the 8th of June, 1866, reviewed the condition of these States, and 
proclaimed the doctrine that further guarantees were necessary for protection, peace, and 
union, and that it was the duty of Congress to exercise a legislative control over the 
whole subject until these objects were secured, and that neither House should pass upon 
the election and qualifications of its members until Congress had declared the State en¬ 
titled to representation. 

This report has formed the basis of the reconstruction policy of Congress, both in sub¬ 
mitting constitutional amendments and in its legislative action. 

We have been able to find no case in the history of the Government where Senators 
have been admitted from a State not entitled to representation in Congress at the time 
of their election. 

There are many cases in which this legislative declaration was not made until after 
the election of Senators. This has occurred in the admission of new States where the 
organization of the State and the election of Senators had occurred previous to the ad¬ 
mission. But in those cases the act of admission was an approval of the organization 
that had preceded it, and amounted to a legislative declaration that the State at the 
time of the election of Senators was entitled to representation. In each of these cases the 
loyal status of the State was unquestioned, and the act of Congress admitting such State 
was construed to relate back to the election of Senators, and to amount to a legislative 
declaration that the State at the time of the election was entitled to representation. 
This principle cannot help the case of Hill and Miller, for at the time the declaration 
was made by the act of July 15, 1870, that the State of Georgia was entitled to represen¬ 
tation, the status of things had been changed in Georgia by the reorganization of the 
legislature. This declaration related to the then existing condition of the State. 

Congress has already in effect decided that the necessary legislative declaration that 
Georgia was entitled to representation was not made prior to the election of Hill and 
Miller. The act of December 22, 1869, “to promote the reconstruction of Georgia,’’ 
can be justified upon no other theory than that reconstruction in that State was not 
then an accomplished fact. After a compliance with this act, and not before, we have 
the declaration in the act of July 15, 1870, that “it is hereby declared that the State 
of Georgia is entitled to representation in the Congress of the United States.” If this 
act relates back to the date of the election of Hill and Miller, tlieir exclusion from seats 
in this body from July, 1868, until now is wholly without justification, and the act of 
December 22, 1869, was an exercise of power over a State entitled to representation for 
which there is no precedent; and which, if exercised in the case of Massachusetts or Ohio, 
would, to say the least, be open to grave constitutional doubts. It directs the governor 
to convene the persons originally elected to the legislature, and requires those persons, 
as a qualification for seats in that body, to take and subscribe to an oath hitherto un¬ 
known to the laws of the State of Georgia or of the United States; and it also required 
them to reorganize the legislature by electing officers, who shall also be required to take 
the same oath. It requires the legislature to ratifiy the fifteenth amendment before 
Senators and Representatives shall be admitted to seats in Congress, and prescribes 


WHITELEY AND FARROW YS. HILL AND MILLER. 365 


various other matters, all pertaining to the reconstruction of a rebel State, and never 
applied to a loyal State whose practical relations to the Union were .pot disturbed. We 
venture to affirm that the Senate and House of Representatives in voting for that act did 
so upon the theory that they were reconstructing a rebel State, and not upon the theory 
that they were dealing with a State whose practical relations with the United States had 
never been disturbed, or which, having been disturbed, were then fully restored. It 
seems clear that the requirement alone that the legislature should ratify the fifteenth 
amendment before Senators and Representatives should be admitted from Georgia was 
in itself a declaration that Georgia was not on the 22d of December, 1869, entitled to 
representation. But after the reorganization of the legislature under this act, the whole 
matter was again submitted to Congress, and Congress accepted the State as then organ¬ 
ized. The act of July 15, 1870, was a legislative declaration that the State was then 
entitled to representation under the organization of the legislature as then existing, and 
related back to the commencement of the then existing state of things, namely, the re¬ 
organization of the legislature in January, 1870. This was a declaration that Georgia 
was entitled to representation at the time of the election of Farrow and Whiteley. 

The language of the act of July, 1870, is “that the State of Georgia, having complied 
with the reconstruction acts, and the fourteenth and fifteenth articles of amendments 
to the Constitution of the United States having been ratified in good faith by a legal 
legislature of said State it is hereby declared that the State of Georgia is entitled to rep¬ 
resentation in the Congress of the United States.” 

How can it be claimed that this language refers to the organization in 1868, in view 
of the facts in this case? Had the State of Georgia complied with the reconstruction acts 
at that date ? 

If this be so, Congress stultified itself in passing the act of the 22d of December, 1869, 
to promote the reconstruction of Georgia, eighteen months after she had fully complied 
with the reconstruction acts under which the other States were admitted. 

It seems clear that this language embraced all the reconstruction laws with which 
Georgia was required to comply, including the act of December, 1869. It is evident 
that Congress intended to declare, and did declare, that after the compliance with the 
last-named act, and not before, Georgia was entitled to representation. 

It is too late to question the propriety of these acts by either House acting separately 
upon the credentials of its members, for it is too well established that Congress must de¬ 
termine when a State is entitled to representation. After that determination has been 
made, neither House, acting alone, can question its validity, but each House is confined, 
in passing upon the credentials of its members, to matters of election and qualification. 

We have shown that Hill and Miller were not elected from a State which, at the time, 
was entitled to representation by any act of Congress, from which it follows that they are 
not entitled to seats in the Senate. 

We have also shown that Farrow and Whiteley were elected by a legislature of a State 
which Congress recognized as duly organized by declaring the State entitled to repre¬ 
sentation. 

The election of these gentlemen seems to have been regular and a substantial compli¬ 
ance with law, and we therefore conclude that they are entitled to their seats. 

We might stop here, resting the whole case on these acts of Congress, but it seems 
proper to embody in these views a more full history of the transaction. 

The credentials of Mr. Hill were referred to the Committee on the Judiciary at the 
third session of the Fortieth Congress, and that committee, after a careful examination 
of the whole case, submitted a report, which, for convenience of reference, is hereto 
appended. 

The committee which made this report was composed of Messrs. Trumbull, Stewart, 
Frelinghuysen, Edmunds, Conkling, Rice, and Hendricks. The report was made by Mr. 
Stewart, and concurred in by Messrs. Edmunds and Rice. Mr. Conkling concurred in 
the conclusion, and agreed that the report be made. Mr. Frelinghuysen signed the re¬ 
port with a further qualification, using the word “now,” which, it must be admitted, 
makes it difficult to determine what he really meant. 

Four of the committee, however, constituting a majority, concurred in the conclusion 
of the report. 

We call especial attention to that conclusion, which is in the following significant lan¬ 
guage: 

“Wherefore your committee feel called upon to recommend that Mr. Hill be not 
allowed to take his seat in the Senate for the reason that Georgia is not entitled to repre¬ 
sentation in Congress.” 

The four Senators who arrived at this conclusion are still members of the Senate and 
of the Judiciary Committee, and constitute a majority of that committee. 

If Georgia was not entitled to representation, by what authority did she elect Sena¬ 
tors? The right of representation cannot exist in a State without the right to elect per- 


3 66 


SENATE ELECTION CASES. 


sons to represent such State. The converse of this proposition seems equally true, that 
where the right of representation does not exist there can be no right of election. 

A point is made on the following language in the report of the committee made by 
Mr. Edmunds at the last session: 

“ It has been seen that the legislature, as originally elected and organized in 1868, was 
not a ‘ provisional ’ legislature within the purview of the acts of reconstruction, but that 
it was a State legislature authorized by Congress to be elected and assembled, but not 
having absolute legislative power until the admission of the State to representation. ’ 7 

We are unable to see clearly the distinction between a provisional legislature and a 
State legislature not having absolute legislative power. This seems to be a controversy 
about terms, not substance. The fact that Congress continued its legislative control is 
conclusive as to the status of the State, and the fact that Congress recognized and con¬ 
firmed certain acts done by the legislature of Georgia is answered by the further fact that 
Congress also refused to sanction many other important acts of that same legislature. It 
refused to sanction the receiving and retaining of a large number of disqualified pe rsons 
under the proposed fourteenth amendment. It refused to sanction the act of that legis¬ 
lature in expelling the colored members. It even refused to sanction the authority of 
the legislature, as then organized, to elect its own officers, and required an organization 
to be commenced de novo. 

Notwithstanding all this it is maintained that this State, which was not entitled to 
representation, whose legislature had no power to elect a clerk or sergeant-at-arms, was 
clothed with all necessary power to elect a Senator of the United States. 

Our opinion is that there was no legal organization of the legislature, by reason of a 
refusal to comply with the act of June, 1868, which says: * * * ‘ ‘ But no person 

prohibited from holding office under the United States, or any State, by section 3 of the 
proposed amendment to the Constitution of the United States, known as article 14, shall 
be deemed eligible to any office in either of said States, unless relieved from disability, 
as provided in said amendment.” 

But it is said that whether the legislature did admit and retain disqualified persons is 
a disputed question. We never saw any reason for disputing that fact, nor the fact that 
it was done knowingly and willfully. 

It seems, however, that if any doubt ever existed on that question, that the fact that 
on the reorganization a large number were either excluded or failed to qualify has settled 
all reasonable doubts. Who can doubt that of the large number who failed to qualify 
under the reorganization there were many ineligible persons ? 

But we will not differ about terms in this controversy. It may be called a State leg¬ 
islature without absolute power of legislation, a provisional legislature, or an illegally 
organized legislature. 

We have shown that it did not have all the power of the legislature of a State whose 
practical relations with the Union were intact, but on the contrary that Congress con¬ 
tinued to legislate to promote the reconstruction of Georgia long after the election of Hill 
and Miller, with the declared purpose of restoring the practical relations of that State to 
the Union. It is true that this legislature was not in existence at the time of the passage 
of the original reconstruction acts, and probably was not one of the provisional govern¬ 
ments referred to in those acts. Nevertheless, Congress continued its legislative authority 
over the State, and practically treated the government therein as provisional. The fact 
that it was organized under the new constitution of Georgia did not of itself deprive it 
of its provisional character. It did not cease to be provisional until Congress declared 
the State entitled to representation. All the provisional governments in the South were 
organized under State constitutions, but Congress refused to regard them as legal State 
governments, and subjected them to the paramount authority of the United States. 
When the credentials of Mr. Hill were before this committee on a former occasion, the 
position taken by the report submitted to the Senate was that the legislature had failed 
to comply with the act of Congress providing for its organization, and that the existence 
of any legislature authorized to act as such was the issue involved. 

They say: “For the purposes of this report, however, your committee did not deem it 
necessary to ascertain the number of disqualified persons admitted. But the fact that 
any were knowingly admitted was not only a violation of the fourteenth amendment, 
and a failure to comply with the requirements of Congress, but manifests a disposition to 
disobey and defy the authority of the United States. If one could be admitted why not 
all ? And will it be contended that if the entire body had been composed of men who 
had usurped the functions of the legislature against the express provisions of the recon¬ 
struction acts, they could have complied with the provisions of those acts so as to create 
any obligation on the part of Congress to receive their Senators and .Representatives ? 
****** * 

“ It is quite probable that Mr. Hill received votes of persons who were not qualified 
to hold seats in the legislature more than sufficient to constitute his majority and secure 


WHITELEY AND FARROW YS. HILL AND MILLER. 367 


his election, hut your committee do not propose to investigate that question. The elec¬ 
tion and qualification of members of the legislature where the existence of any legislature 
authorized to act as such is not involved cannot be inquired into by the Senate in deter¬ 
mining the right of a Senator to his seat. Your committee hold that the question in¬ 
volved in this case is not whether persons not entitled to seats in the legislature were 
received by that body and allowed to vote upon the election of a Senator, but whether 
the body assuming to be the legislature violated the conditions upon which it was 
allowed to organize by permitting disloyal persons to participate in its proceedings. It 
may be contended that although the matters hereinbefore set forth constitute a failure 
on the part of the State of Georgia to comply in every respect with the reconstruction 
acts, yet Congress ought to waive these slight departures and admit their representatives. 
But an examination into the subsequent proceedings of the legislature of Georgia, and 
the disorganized condition of society in that State, leads your committee to the conclusion 
that all these violations of law were in pursuance of a common purpose to evade the law 
and resist the authority of the United States.” 

It is now contended that the Senate should waive the rebellious acts of this pretended 
legislature and accept the Senators it elected while it was knowingly and willfully defy¬ 
ing the authority of the United States; and this, too, after Congress in its legislative 
capacity has, in effect, declared this organization illegal by ordering a reorganization to 
be made. So radiail had been the legislation of Congress in respect to Georgia that it 
was deemed necessary in the act admitting the State, passed on the 15th of July last, to 
expressly ratify certain things that had been done to avoid the conclusion that Congress 
intended to annul all the acts of this pretended State government. The language of that 
law is as follows: 

“But nothing in this act contained shall be construed to deprive the people of Georgia 
of the right to an election for members of the general assembly of said State, as provided 
for in the constitution thereof; and nothing in this or any other act of Congress shall be 
construed to affect the term to which any officer has been appointed or any member of 
the general assembly elected as prescribed by the constitution of the State of Georgia.” 

Why say that this act should not deprive the people of Georgia of an election under 
their constitution at the time fixed therein, if the act itself was an approval ofwhat they 
had done and related back to the organization of the State ? Why say that nothing in 
this or any other act of Congress shall affect the term to which any officer has been ap¬ 
pointed, or any member of the general assembly elected, if the act itself was to be con¬ 
strued to relate back to the first organization and amount to a legislative declaration 
that Congress approved of that organization ? The fact is, that these acts of Congress 
had treated the State as not yet fully reconstructed, and it was thought necessary to ex¬ 
pressly approve certain important matters, to the end that it might not be claimed that 
they were disapproved. 

If Congress had intended to approve of the election of Senators, it seems natural that 
such intention should have appeared in the list of those things which were not to be 
affected or disturbed. 

It is suggested that there is some doubt about the regularity of the election of Mr. 
Farrow, for the reason that there was no quorum present in the house of representatives 
at the time of his election. The records show that the house, when reorganized and dis¬ 
loyal members excluded, consisted of one hundred and fifty-four members, and Mr. Far¬ 
row alleges that one member, Robert Lumpkin, who had been sworn in, died before the 
Senatorial election, leaving the number one hundred and fifty-three. A quorum of this 
number would be seventy-seven. The number of persons present and voting was eighty- 
two, of which Mr. Farrow received eighty. But it is said that minority men were im¬ 
properly admitted. We might answer this by saying they were admitted by the legisla¬ 
ture, and that the Senate will not ordinarily review the action of that body in deciding 
upon the qualification of its own members. 

But if the Senate would enter upon such an investigation under any circumstances 
(which on mature reflection we now think may be open to some doubt) it cannot be 
called upon to do so in this case. The question of the proper organization of the legis¬ 
lature in January, 1870, was, at the hist session, under investigation in both Houses, on 
the passage of the act of July 15, 1870. The report of the Judiciary Committee of the 
2d of March last, printed as a part of the majority report, recommends that no further 
legislation be had to perfect the organization of the legislature of Georgia as it then ex¬ 
isted, and Congress, acting on that report, decided it to be a legal legislature. 

But admitting that the minority men were improperly received, the result would be 
the same. 

The number of members declared elected in General Meade’s order, who were allowed 
tc qualify and retain their seats, leaving out of the calculation those who are known as 
“minority men,” was one hundred and forty-one. 

Deducting Mr. Lumpkin, who is alleged to have died before the Senatorial election, 


368 


SENATE ELECTION CASES. 


and we have one hundred and forty. Necessary to a quorum, seventy-one. Numb; 
of persons present and voting on the election of Mr. Farrow, seventy-one. Of this num¬ 
ber Mr. Farrow received sixty-nine. Thus it appears in either case a quorum was pres¬ 
ent, and Mr. Farrow had a majority of that quorum. 

All other matters in regard to the election of Messrs. Farrow and Whiteley, we be¬ 
lieve, are admitted to have been regular. 

We therefore recommend for adoption a resolution declaring Henry P. Farrow and 
Richard H. Whiteley elected, and entitled to seats in the Senate on taking the oaths 
renuired by law. 

WM. M. STEWART. 

B. F. RICE. 

The following is the resolution proposed: 

Resolved , That Henry P. Farrow and Richard H. Whiteley are entitled to take their 
seats in the Senate, upon taking the oath prescribed by law. 

Monday, January 30, 1871. 

On motion by Mr. Trumbull, that the further consideration of the said bill be post¬ 
poned, and that the Senate proceed to the consideration of the resolution reported by 
the Committee on the Judiciary, declaring that Joshua Hill has been duly elected a 
Senator by the legislature of the State of Georgia, and is entitled to take his seat on 
taking the oaths required by the Constitution and laws, it was determined in the affirm¬ 
ative; and the Senate proceeded to consider the said resolution. 

After debate, 

On motion by Mr. Stewart to amend the resolution by striking out all after the word 
“resolved,” and inserting in lieu thereof the words, 

“ That Henry P. Farrow and Richard H. Whiteley are entitled to take their seats in 
the Senate, upon taking the oath prescribed by law, ’ ’ 

It was determined in the negative—yeas 19, nays 36. 

On motion by Mr. Stewart, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Abbott, Ames, Boreman, Brownlow, 
Gilbert, Hamilton of Texas, McDonald, Nve, Osborn, Pomeroy, Pool, Pratt, Ramsey, 
Rice, Stearns, Stewart, Sumner, Thayer, and Wilson. 

Those who voted in the negative are Messrs. Bayard, Blair, Buckingham, Carpenter, 
Casserly, Chandler, Conkling, Corbett, Cragin, Davis, Edmunds, Fenton, Flanagan, Fow¬ 
ler, Hamilton of Maryland, Hamlin, Harlan, Howard, Howe, Johnston, Kellogg, Mc- 
Creery, Morrill of Vermont, Patterson, Ross, Schurz, Sherman, Sprague, Stockton, Thur¬ 
man, Tipton, Trumbull, Vickers, Warner, Willey, and Williams. 

So the amendment was not agreed to. 

On motion by Mr. Stewart to amend the resolution by striking out the name “ Joshua 
Hill” and inserting the name “Henry P. Farrow,” 

After debate, 

On motion by Mr. Chandler (at 5 o’clock and 5 minutes p. in.), the Senate adjourned. 

[The debate is found on page 816 of the Congressional Globe, part 1, 3d sess. 41st 
Cong., and on pages 817-830 in part 2 of the same. ] 

Tuesday, January 31,1871. 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary, declaring Joshua Hill duly elected a Senator of the United States by the 
legislature of the State of Georgia and entitled to take his seat in the Senate upon taking 
the oaths required by the Constitution and laws; and 

Pending debate thereon, the following message was received, &c. 

[The debate is found on pages 848-851 ,of the Congressional Globe, part 2, 3d sess. 
41st Cong.] 

Wednesday, February 1, 1871. 

Mr. Trumbull submitted the following resolution for consideration: 

“ Resolved, That H. V. M. Miller has been duly elected a Senator by the legislature 
of Georgia, for the term ending March 4, 1871.” 

Mr. Stewart submitted the following resolution for consideration: 

11 Resolved, That Richard H. Whiteley is entitled to take his seat in the Senate upon 
taking the oath prescribed by law.” 

The Senate resumed the consideration of the resolution reported by the Committee on 
the Judiciary, declaring Joshua Hill to be duly elected a Senator of the United States, 
and entitled to take his seat upon taking the oaths prescribed by the Constitution and 
laws; and the question being upon the amendment proposed by Mr. Stewart, to strike 
out the name “Joshua Hill” and insert the name “Henry P. Farrow,” 

After debate, it was determined in the negative—yeas 19, nays 37. 


WHITELEY AND FARROW VS. HILL AND MILLER. 369 


■p» On motion by Mr. Stewart, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present. 

Those who voted in the affirmative are Messrs. Abbott, Ames, Boreman, Brownlow, 
Chandler, Gilbert, Hamilton of Texas, Nye, Osborn, Pomeroy, Pratt, Ramsey, Robert¬ 
son, Spencer, Stearns, Stewart, Sumner, Thayer, and Wilson. 

Those who voted in the negative are Messrs. Anthony, Bayard, Blair, Buckingham, 
Carpenter, Casserly, Conkling, Corbett, Cragin, Edmunds, Fenton, Flanagan, Fowler, 
Hamilton of Maryland, Hamlin, Harlan, Harris, Howard, Johnston, Kellogg, McCreery, 
Morrill of Vermont, Patterson, Ross, Saulsbury, Sawyer, Scott, Sherman, Sprague, 
Stockton, Thurman, Tipton, Trumbull, Vickers, Warner, Willey, and Williams. 

So the amendment of Mr. Stewart was not agreed to; and 

On the question to agree to the resolution reported by the Committee on the Judiciary 
it was determined in the affirmative. 

So it was 

Resolved , That Joshua Hill has been duly elected Senator of the United States by 
the legislature of the State of Georgia, and is entitled to take his seat on taking the oaths 
required by the Constitution and laws. 

Whereupon 

Mr. Hill apppeared, and the oaths prescribed by law having been administered to him 
by the Vice-President, hetook his seat in the Senate. 

[The debate is found on pages 871-874 of the Congressional Globes part 2, 3d sess. 
41st Cong.] 

Friday, February 24, 1871. 

The Vice-President stated that the message of the President of the United States, just 
received, announced that he had approved and signed the “ Joint resolution * prescrib¬ 
ing the oath to be taken by H. V. M. Miller, Senator-elect from the State of Georgia, ’ ’ 
and requested Mr. Miller, Senator-elect from the State of Georgia, whose credentials 
were presented on the 11th day of January, 1869, to come forward and take the oath of 
office. 

Whereupon 

Mr. Miller appeared, and the oaths prescribed by law were administered to him by 
the Vice-President, and he took his seat in the Senate. 

COMPENSATION OF SENATORS AND CONTESTANTS. 

Saturday, February 25, 1871. 

Mr. Trumbull submitted the following resolution; which was read, and passed to a 
second reading: 

Resolved, That the Secretary of the Senate be directed to pay to the Senators from 
the State of Georgia the compensation allowed by law, from the 29th day of July, 1868; 
and to H. P. Farrow and Richard H. Whiteley, contestants from the State of Georgia, 
compensation from the 16th day of February, 1870, the date of their election by the 
reorganized legislature of Georgia, to 30th day of January, 1871, when the Senate 
decided they were not entitled to seats.” 

Monday, February 21871. 

On motion by Mr. Trumbull, the Senate proceeded to consider the resolution submit¬ 
ted by him on the 25th instant, directing the Secretary of the Senate to pay the Senators 
from the State of Georgia; and the resolution was agreed to. 


* The proceedings of the Senate relating to this joint resolution are omitted. 

S. Doc. 11-24 




370 


SENATE ELECTION CASES. 


[Forty-first Congress—Second session.] 

H. R. REVELS, 

Senator from Mississippi from February 25, 1870, till March 3, 1871. 

February 23, 1870, the credentials of Mr. Revels were presented. A resolution was submitted that 
they be referred to the Committee on the Judiciary with instructions to inquire whether he had 
been nine years a citizen of the United States, and whether the person certifying to his election was 
the governor of the State. Mr. Revels’s credentials were signed by Adelbert Ames, brevet major- 
general United States Army, provisional governor of Mississippi. The act of July 25,1866, provided 
“ that it shall be the duty of the governor of the State from which any Senator shall have been 
chosen as aforesaid to certify his election” &c. It was contended that this was not such a certificate 
as was required by that act. It was also contended that Mr. Revels, being partly of African blood, 
had not been nine years a citizen of the United States; that he was not a citizen at birth, following 
the decision of the Dred Scott case ; that he became a citizen only on the ratification of the four¬ 
teenth amendment in 1868. After debate, the motion to refer the credentials was determined in the 
negative, and Mr. Revels took the oath of office February 25. Extracts from remarks given below 
will show the grounds upon which certain Senators proceeded. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journal, 2d sess. 41st Cong., with extracts from remarks of Messrs. Vickers and 
Scott. 

Special references to the debates of each day, which are found in the Congressional Globe, part 2, 
2d sess. 41st Cong., are inserted below. 


Wednesday, February 23, 1870. 

Mr. Wilson presented the credentials of H. R. Revels, elected a Senator by the legis¬ 
lature of the State of Mississippi for the unexpired portion of the term ending March 4, 
1871; which were read. 

Mr. Wilson presented a certified extract from the proceedings of the house of repre¬ 
sentatives of the State of Mississippi, also a certified extract from the proceedings of the 
senate and house of representatives of the State of Mississippi, relative to the election of 
H. R. Revels as a Senator in Congress; which were read. 

Mr. Saulsbury objected to the reception of the credentials; and 

After debate, the Vice-President submitted the question to the Senate: Shall the 
credentials be received ? It was determined in the affirmative. 

Whereupon 

Mr. Stockton submitted the following resolution: 

‘ ‘ Resolved, That the credentials of Hiram R. Revels, who is now claiming a seat in 
this body as a Senator-elect from the State of Mississippi, be referred to the Committee 
on the Judiciary, who are hereby requested to inquire and report whether he has been 
a citizen of the United States for the period of nine years, and was an inhabitant of the 
said State at the time of his alleged election in the sense intended by the third section 
of the first article of the Constitution of the United States, and whether Adelbert Ames, 
brevet major-general and provisional governor of Mississippi, as appears by the creden¬ 
tials, was the governor of the State of Mississippi at the time, and whether he was an 
inhabitant of the said State. ’ ’ 

On the question to agree to the resolution of Mr. Stockton, 

After debate, 

On motion by Mr. Thayer (at 5 o’clock), the Senate adjourned. 

[The debate is found on pages 1503-1514 of the Congressional Globe referred to in the 
head-note. ] 

Thursday, February 24, 1870. 

The Senate resumed the consideration of the motion to refer the credentials of H. R. 
Revels, elected a Senator by the legislature of the State of Mississippi for the unexpired 
portion of the term ending March 4, 1871, with certain instructions; and 

After debate, the Senate adjourned. 

[The debate is found on pages 1542-1544 of the Congressional Globe referred to in the 
head-note. Mr. Saulsbury’s speech is found on pages 125-130 of the Congressional 
Globe, part 7, Appendix, 2d sess. 41st Cong. ] 

Friday, February 25, 1870. 

The Senate resumed the consideration of the motion of Mr. Stockton to refer the cre¬ 
dentials of H. R. Revels, elected a Senator by the legislature of the State of Mississippi for 
the unexpired portion of the term ending March 4, 1871, to the Committee on the Judi¬ 
ciary, with instructions to inquire and report whether he has been a citizen of the United 
States for the period of nine years, and was an inhabitant of the said State at the time 
of his alleged election in the sense intended by the third section of the first article of 


H. R. REVELS. 


371 


the Constitution ot the United States; and whether Adelbert Ames, brevet major-gen¬ 
eral and provisional governor of Mississippi, as appears by the credentials, was the gov¬ 
ernor ot the State ot Mississippi at the time, and whether he was an inhabitant of the 
said State; and 

After debate, on the question to agree to the motion, it was determined in the nega¬ 
tive—yeas 8, nays 48. 

On motion by Mr. Pomeroy, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, J 

Those who voted in the affirmative are Messrs. Bayard, Casserly, Davis, Hamilton, 
McCreery, Saulsbury, Stockton, and Vickers. 

Those who voted in the negative are Messrs. Abbott, Anthony, Boreman, Brownlow, 
Buckingham, Cameron, Carpenter, Chandler, Cole, Conkling, Corbett, Drake, Fenton, 
Ferry, Fowler, Gilbert, Hamlin, Harlan, Harris, Howe, Howell, Kellogg, Lewis, Mc¬ 
Donald, Morrill of Maine, Morrill of Vermont, Nye, Osborn, Pomeroy, Pool, Pratt, 
Ramsey, Rice, Robertson, Ross, Sawyer, Schurz, Scott, Sherman, Spencer, Stewart, 
Sumner, Thayer, Tipton, Trumbull, Willey, Williams, and Wilson. 

So the motion was not agreed to. 

On motion by Mr. Wilson, that the oaths prescribed by law be now administered to 
Mr. Revels, it was determined in the affirmative—yeas 48, nays 8. 

On motion by Mr. Pomeroy, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Abbott, Anthony, Boreman, Brownlow, 
Buckingham, Cameron, Carpenter, Chandler, Cole, Conkling, Corbett, Drake, Fenton, 
Ferry, Fowler, Gilbert, Hamlin, Harlan, Harris, Howe, Howell, Kellogg, Lewis, Mc¬ 
Donald, Morrill of Maine, Morrill of Vermont, Nye, Osborn, Pomeroy, Pool, Pratt, 
Ramsey, Rice, Robertson, Ross, Sawyer, Schurz, Scott, Sherman, Spencer, Stewart, 
Sumner, Thayer, Tipton, Trumbull, Willey, Williams, and Wilson. 

Those who voted in the negative are Messrs. Bayard, Casserly, Davis, Hamilton, 
McCreery, Saulsbury, Stockton, and Vickers. 

So the motion was agreed to; and 

The oaths prescribed by law were administered to Mr. Revels by the Vice-President, 
and he took his seat in the Senate. 

[The debate is found on pages 1557-1568 of the Congressional Globe referred to in the 
head-note. ] 

[Extract from remarks of Mr. Vickers, of Maryland, in support of the resolution submitted by Mr. 
Stockton. Delivered in the Senate February 25,1870, and found on pages 1557,1558, and 1560 of the 
Congressional Globe referred to in the head-note.] 

“ The subject before the Senate is one which relates to the eligibility of an individual 
elected to this body. That question involves the three qualifications which the Consti¬ 
tution of the country requires of persons before they can take a seat in this Assembly: 
the first, that they shall have been citizens of the United States for nine years; secondly, 
that they shall be inhabitants of the State from which they are elected; and thirdly, 
that they shall be of the age of thirty years. 

“ Now, the question of reference to the Committee on the Judiciary includes all three 
inquiries, whether this party is thirty years of age, is a legal inhabitant of the State of 
Mississippi, and has been a citizen of the United States for nine consecutive years. I 
do not propose to dwell upon any of these propositions except the one of citizenship; and 
the question for the Senate to consider is whether he has been a citizen of the United 
States for nine years. That is the point which I wish to present to and impress upon 
the judgment of the Senate. 

“ I shall rely mainly on the judgment of the Supreme Court of the United States in 
the case of Scott vs. Sandford, which has been referred to, and upon the opinion deliv¬ 
ered by Chief-Justice Taney on behalf of a large majority of that court. 

“ I know that decision has been denounced not only in the Senate but in the country, 
but it stands unrepealed, and is the adj udicated law of the land. Chief-Justice Taney 
was in social life one of the most exemplary of men. His private character was pure and 
unsullied. He was honest, just, and faithful. He performed all the duties of private, 
social, and public life with that fidelity and correctness which we should expect from a 
man so virtuous and exalted. There has never been a blemish upon his private or his 
public life. I believe, although I am not fully qualified to say, that he was not a slave¬ 
holder. I think he was not, and I am sure that I am justisfied in saying that after he 
was placed upon the bench he separated himself from the politics of the country and 
never exercised the right of suffrage. His ambition was to make an upright, able, and 
impartial judge, and he entered and left public office with as clean hands as any man 
that ever lived in this country. He entered it poor and he left it in the same condition, 
and bequeathed as a heritage to his family a high, pure, and exalted reputation. 

“So much for the character of the judge. Now, what was that opinion ? It was upon 
a case which involved the citizenship of a suitor in the courts of the United States. The 
Constitution gave jurisdiction to those courts between parties who are citizens of differ- 


372 


SENATE ELECTION CASES. 


ent States. The very question presented to the consideration of the court was whether 
the parties plaintiff, Dred Scott and others, were citizens of the United States within 
the constitutional intendment. To show that the court desired nothing but impartial 
justice, the case was ably argued twice at different terms, in order that the most thorough 
examination, discussion, and deliberation might be had on a matter of such magnitude. 
And what, under the circumstances, was the duty of the court? It was to decide 
whether the parties plaintiff were citizens according to the Constitution. That was in¬ 
cumbent upon them, and there was no alternative. This necessarily brought up to the 
attention and consideration of the court the condition of the parties. They were of Afri¬ 
can descent, and the question naturally arose, and it was so argued, are they citizens of 
the United States and qualified to sue in its courts? A large majority of the court de¬ 
cided that they were not citizens of the United States. 

“I did not suppose that any one would have found fault with the court for the per¬ 
formance of this duty. They were bound to decide according to their convictions; but the 
complaint was, as was stated by the Senator from Delaware yesterday, that they departed 
from this question and went into an argument upon the condition of this class of people 
and the right of masters to take them into the Territories of the United States. We all 
know that there was great excitement in the country at that period in reference to the 
constitutional right of a master to take his slaves north of the Missouri line of 36° 30 7 . 
Some of these parties had been taken by their owners north of the Missouri line into 
what was called free territory, and this feet necessarily brought to the consideration and 
examination of the court the question whether the owner of a slave had a right to take 
him into a Territory of the United States. 

“ That decision, I know, has been animadverted upon here as it has been elsewhere. 
But have not other decisions been condemned? Was not that upon the fugitive slave 
law severely criticised in the country, and probably in Congress, too, by the Freesoilers? 
The senior Senator from Massachusetts [Mr. Sumner] said in reference to it that he did 
not feel bound to sustain that law after the Supreme Court had decided in favor of its 
constitutionality; and yet that decision was made by a unanimous court. There was 
perfect unanimity upon the question of its constitutionality. 

u But I have waited with anxiety to hear a refutation of any single position which the 
Supreme Court took in the decision of the Dred Scott case. I know it is easy to censure 
a decision and get up a political clamor against it, but I want to know if any single posi¬ 
tion of fact or of law which that court announced has ever been successfully controverted. 

I have not heard it attempted in the Senate of the United States. I have not heard a 
single argument against the correctness of the legal positions or to any statement of fact 
asserted by the court. 

“ And now, when a case has been so solemnly adjudicated by a court forming one of 
the co-ordinate branches of the Government, and whose duty it is to determine grave 
constitutional questions, I ask if any reason can be assigned against the decision of that 
case or any of the principles involved in it? Denunciation should be disregarded by an 
intelligent people while the principles of the opinion stand unassailed and irrefragable. 

“ What were some of the propositions of law decided by that tribunal? 

“ 1. That when the Constitution was adopted persons of African descent were not re¬ 
garded in any of the States as members of the community which constituted the States, 
and were not numbered among its people or citizens; consequently, the special rights 
and immunities guaranteed to citizens did not apply to them. 

‘ ‘ *2. That no State could by any subsequent law make a foreigner or any other descrip¬ 
tion of persons citizens of the United States. 

“ 3. That a State might by its laws put a foreigner, or any other description of persons, 
upon a footing with its own citizens; but that would not make him a citizen of the 
United States, nor entitle him to sue in its courts, nor to any of the privileges and im¬ 
munities of a citizen in another State. 

u The disqualification of the African race was as radical, fundamental, and perfect as 
language could make it. This is by a co-ordinate department of the Government, existing 
by the same Constitution as Congress; in its origin, design, and objects as thoroughly 
constitutional; in its powers and jurisdiction superior, because State and national legis¬ 
lation is measured and limited by the Constitution according to its judgment. Its decis¬ 
ions and decrees are as binding as the Constitution itself.” 

****** * 

“I suppose there is not a Senator on this floor who voted either for the civil rights 
bill or for the submission of the constitutional amendment to the States but what be¬ 
lieved it was absolutely necessary and indispensable to make these people citizens of the 
United States; without the passage of that bill in the opinion of some, and without the 
passage and adoption of the constitutional amendment in the opinion of others, they 
would not have been citizens of the United States. After the civil rights bill was 
passed and when it passed there were serious objections to it. It was doubtful in the 
miDds of many whether grants by legislative enactment could make a citizen of the 


H. R. REVELS. 


373 


United States; whether it did not require a constitutional amendment to make them 
such; and the better opinion was that it did require it, because by the Constitution they 
were not made citizens. You proceeded on the very ground that it was absolutely requi¬ 
site that the amendment should be made which made the party now claiming his seat 
a citizen of the United States from the time of its approval only; from that time he 
became a citizen; and as nine years have not elapsed, how can we, upon our oaths and 
in view of the decisions of the Supreme Court, the practice of the Government, the 
decisions of all the State courts, the opinions of the Attorneys-General, say that in our 
opinion he was a citizen of the United States before the passage of the civil rights bill 
or of the fourteenth constitutional amendment ? 

“ This is not a political but a judicial question, and ought to be decided by us as 
judges and not as politicians. In the Dred Scott case the Supreme Court said— 

‘ ‘ ‘ That, looking to the contemporaneous history and to the contemporaneous legisla¬ 
tion of the several States at the time the Constitution was adopted, the use of the word 
‘ ‘ citizen, ’ ’ as employed in that Constitution, was to exclude the African and every race 
but the white. ’ 

‘ ‘ The court looked into the construction of this provision. They took a deliberate 
view of the contemporaneous history of the States and the condition of the country at 
the time. This was proper and necessary to a full understanding of the subject. In a 
debate which took place in the Senate of the United States on the 7th of February, 1866, 
the senior Senator from Massachusetts [Mr. Sumner] assumed the ground that no State 
had a republican government that tolerated slavery; and it was in reference to that that 
the late Mr. Fessenden, who was so distinguished in this body, as he was in every pub¬ 
lic station which he occupied, said in reply : 

“ ‘ I ask the question that he may answer it, because after all he will admit, as a 
lawyer, as we all must, that in construing a constitution, and construing a statute, and 
construing any provision, we look at contemporaneous history in the first place, and we 
look more particularly, when endeavoring to find out what the sense of an instrument is, 
at all its clauses in order to get the meaning of all, for one explains the other. It would 
seem to me that the Senator went a little too far with his argument as to the guarantee 
clause. ’ 

“The opinion of Mr. Fessenden was that in construing the Constitution we must 
look at the contemporaneous history of the country. The Senator from Oregon [Mr. 
Williams] said yesterday that the decision in the Dred Scott case applied only to per¬ 
sons of African descent whose ancestors had been sold into slavery. Now, I ask how 
came that race among us? Is it not a historical fact that they were brought here and 
sold; that they were made articles of traffic; that they did not come here of their own 
accord; and that from those people have descended the whole of that class of population 
among us? They were denied naturalization. In the States where slavery existed 
the courts held that color, whether of the dark, mulatto, or mixed, was presumptive 
evidence of slavery, and the onus of proving emancipation or freedom rested upon the 
person. The courts of the United States always follow the decisions of State courts 
in matters local or affecting the relations or peculiar interests existing in them. If 
this subject shall be referred to a committee, there will be no difficulty in proving the 
race to which the claimant belongs, if appearances should not satisfy the most fastidious. 
The colonists coming from the bosom of Europe necessarily brought with them, to some 
extent, the feelings and sentiments of the nations toward this class of persons. The 
court, in reviewing the facts and the history of the condition of this people in the case 
alluded to, said that they did not migrate to America; and— 

“ ‘ It is difficult at this day to realize the state of public opinion in relation to that 
unfortunate race which prevailed in the civilized and enlightened portions of the world 
at the time of the Declaration of Independence, and when the Constitution of the 
United States was framed and adopted. But the public history of every European 
nation displays it in a manner too plain to be mistaken. 

‘ ‘ ‘ They had for more than a century before been regarded as beings of an inferior 
order, and altogether unfit to associate with the white race, either in social or political 
relations; and so far inferior that they had no rights which the whiteman was bound to 
respect; and that the negro might justly and lawfully be reduced to slavery for his ben¬ 
efit. He was bought and sold, and treated as an ordinary article of merchandise and 
traffic whenever a profit could be made by it. This opinion was at that time fixed and 
universal in the civilized portion of the white race.’ ” 

[Extract from remarks of Mr. Scott, of Pennsylvania, In opposition to the resolution submitted by 
Mr. Stockton. Delivered in the Senate February 25, 1870, and found on page 1565 of the Congres¬ 
sional Globe referred to in the head-note.] 

“ The proposal is to refer his credentials to the Judiciary Committee for the purpose 
of making inquiry as to whether he has been a citizen of the United States for nine 
years. It is admitted that h 3 is a citizen now, and therefore he is admissible as a Sena¬ 
tor unless there be some disqualification. What is that disqualification? It is alleged 


374 


SENATE ELECTION CASES. 


that he is a man of color, and that therefore he was not a citizen prior to the enactment 
of the civil rights bill. Now, sir, no one stands here to question that his citizenship 
was an open question before the adoption of the civil rights bill. The history of the 
litigation that had occurred in various States, and that finally got into the Supreme 
Court of the United States in the Dred Scott case, is enough to show that a question was 
made as to whether a colored man was or was not a citizen of the United States. The 
decisions in Kentucky, the decisions in Connecticut, the decisions in my own State, the 
discussion which took place upon the admission of Missouri into the Union, tbe Dred 
Scott case, the universal discussion of this question at one period in our history—these 
are enough to show that the public mind was not settled upon the question. But if it 
was not settled then, could it be more effectively settled than it has been, first by the 
passage of the civil rights bill, and then, if that was not sufficent as a mere act of Con¬ 
gress to determine the status of citizenship in the face of a decision of the Supreme 
Court, surely it will not be contended that the fourteenth constitutional amendment, 
declaring that all persons born within the United States are citizens, is not sufficient to 
settle it. 

* ‘The civil rights bill, if its text be turned to, and the fourteenth amendment, if its 
text be turned to, will be found to be both declaratory. They do not enact that ‘ from 
henceforth all persons born within the United States shall be citizens,’ but the present 
tense is used in both: 1 all persons ’ 1 are citizens of the United States.’ If that be suffi¬ 
cient to settle the question, if that be enough as a declaratory law to declare that all 
persons born within the limits of the United States are citizens of the United States, 
where does this man stand who now presents himself as Senator-elect from Mississippi ? 

“ It is urged by gentlemen on the other side that he became a citizen only by virtue 
of one or the other of these enactments; but if they turn to the history of that clause of 
the Constitution of the United States on which they rely they will find that it was in¬ 
serted both in reference to Senators and to Representatives in the other House of Congress, 
and also in reference to the President, because of the apprehension that was felt of foreign 
influences in our Government. In the discussion which occurred in the convention—I 
have it here, but will not take the time of the Senate to read it—on fixing the qualifica¬ 
tions of Senators it was especially dwelt upon that the Senate being the body which was 
to pass upon treaties with foreign governments, it was particularly necessary that the 
period of citizenship should be extended and made longer for a Senator than for a mem¬ 
ber of the House of Representatives. The discussion of Mr. Madison in the Federalist 
of this clause shows that the purpose, the reason, the intention of this clause in the 
Constitution of the United States was that persons who had been born abroad should not 
be permitted to become Senators until after they had been citizens a certain length of 
time. That is the reason, that is the spirit of the law; and it is a maxim which I need 
not quote, that the reason ceasing the law ceases with it. 

‘ ‘ Here, then, is a man bom in the United States, not an alien, not a foreigner, who 
comes here elected by a State legislature. No question is raised as to his qualification 
as to age; no question is raised as to his qualification in any other respect than as to 
whether he has been a citizen of the United States for nine years. Now, even if the 
doctrine contended for by the gentlemen on the other side were true, that he was not a 
citizen until the time of the passage of the civil rights bill or until the adoption of the 
fourteenth constitutional amendment, still he is not within the meaning of that clause 
of the Constitution which requires a man to be a citizen for nine years. The meaning, 
the spirit of that was, that no man should occupy this place who had been naturalized 
as a foreigner until nine years had elapsed after his naturalization. ’ ’ 


ADALBERT AMES. 


375 


[Forty-first Congress—Second session.] 

ADELBERT AMES, 

Senator from Mississippi from April 1, 1870, till he resigned in 1874. 


January 18, 1870, Mr. Ames was elected to fill the vacancy in the term beginning March 4,1869. 
February 25,1870, the credentials were presented and referred to the Committee on tho Judiciary. 
March 18, the committee reported the following facts: Mr. Ames was born in Maine, in 1835, where he 
resided with his parents until 1856, when he entered West Point. Continuing in the military service, 
he was ordered to Mississippi in 1868. June 15, of that year he became provisional governor by ap¬ 
pointment of General McDowell, then district commander, and in March, 1869, he became himself 
district commander by assignment of the President. These two positions Mr. Ames was holding at 
the time of the election. Mr. Ames testified that shortly before the election, being then in Missis¬ 
sippi, he determined to be a candidate and decided to remain and reside in Mississippi, and pub¬ 
licly declared that intention. After his election he resigned his commission. This, he states, was 
after the passage (February 17,1870), but before the approval (February 23,1870) of the bill declaring 
Mississippi entitled to representation in Congress. Mr. Ames’s parents had continued to live in 
Maine until 1862, and some of his papers and effects remained at his father’s house. In 1862 his 
parents removed to Minnesota, carrying with them the effects of their son in their possession. In 
subsequent years Mr. Ames occasionally visited Maine, but owned no land there and occupied no 
habitation there of his own. The committee reported that Mr. Ames was not, when elected, an in¬ 
habitant of that State for which he was chosen, within the meaning of the third clause of the third 
section of the first article of the Constitution. They reported the resolution ‘‘ that Adelbert Ames is 
not eligible to the seat in the Senate of the United States to which he had been appointed.” After 
long debate the Senate resolved, April 1,1870, that he was eligible to the seat, and he took the oath 
of office. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journal, 2d sess. 41st Cong., and the report of the committee from Senate Reports, 
2d sess. 41st Cong., No. 75. 

Special references to the debates of each day, which are found in the Congressional Globe, part 3, 
2d sess. 41st Cong., are inserted below. 


Friday, February 25, 1870. 

Mr. Robertson presented the credentials of Adelbert Ames, elected a Senator in Con¬ 
gress by the legislature of the State of Mississippi for the unexpired portion of the term 
commencing on the 4th day of March, 1869; which were referred to the Committee on 
the Judiciary. 

Friday, March 18, 1870. 

Mr. Conkling, from the Committee on the Judiciary, to whom were referred the cre¬ 
dentials of Adelbert Ames, elected a Senator by the legislature of the State of Mississippi 
for the unexpired term ending the 4th day of March, 1875, submitted a report (No. 75) 
thereon, accompanied by the following resolution. [Resolution found at end of report.] 

REPORT OF COMMITTEE. 

[The committee consisted of Messrs Trumbull (chairman), Stewart, Edmunds, Conk¬ 
ling, Rice, Carpenter, and Thurman.] 

In the Senate of the United States. 

March 18, 1870.—Ordered to be printed. 

Mr. Conkling, from the Committee on the Judiciary, submitted the following report: 

The Committee on the Judiciary, to whom were referred the credentials of Adelbert 
Ames, claiming to be Senator-elect from the State of Mississippi, report the following 
facts and conclusions: 

Mr. Ames was born in Maine in 1835, and resided with his parents in that State until 
1856, when he entered the Military Academy at West Point. From 1856 he remained 
in the military service of the United States until he resigned his commission, which he 
states was after the passage, but before the approval by the President, of the bill finally 
declaring Mississippi entitled to representation in Congress. 

Until 1862 his parents continued to reside in Maine, and such articles and papers of 
his as would naturally be kept at his home remained at his father’s house. In 1862 his 
parents removed to Minnesota, carrying with them the effects of their son in their pos¬ 
session, and in subsequent years he occasionally revisited Maine, but owned no land and 
occupied no habitation there of his own. 


376 


SENATE ELECTION CASES. 


In 1868 he was ordered to Mississippi; on the 15th of June in that year he became 
provisional governor by appointment of General McDowell, then district commander, 
and in March, 1869, he became himself district commander by assignment of the Presi¬ 
dent of the United States. These relations continued modified, if modified at all, only 
as will presently appear. 

The election seems to have been regular, and waiving any criticism of the form of the 
certificate, no question has been made touching the right of Mr. Ames to take his seat, 
except in regard to the legal character of his residence in Mississippi. 

The provision of the Constitution of the United States under which the question arises 
is this: 

“No person shall be a Senator who shall not have attained to the age of thirty years, 
and been nine years a citizen of the United States, and who shall not, when elected, be 
an inhabitant of that State for which he shall be chosen. ’ ’ 

It will be seen that to be eligible as a Senator of the United States, a person, in addi¬ 
tion to other qualifications, must be an inhabitant of the State for which he is chosen, 
and he must be such an inhabitant 11 when elected. ’ ’ 

The election in this instance occurred on the 18th day of January, 1870. 

At this time Mr. Ames was a military officer, stationed in Mississippi by order of 
superior military authority, and acting as provisional governor by appointment from 
General McDowell, as already stated. His presence in these two characters comprises 
everything bearing upon the question of his residence in Mississippi down to the time 
when he became a candidate for the Senate. The precise date cannot be fixed, but not 
long before the election General Ames determined to allow his name to be submitted to 
the legislature as one of those from which the choice of Senators might be made. 

Having reached this determination, and in connection with it, General Ames declared, 
as far as he did declare it, his intention in regard to his future residence. His language 
as delivered to the committee touching his declarations and acts is as follows: 

“ Upon the success of the Republican ticket in Mississippi I was repeatedly approached 
to become a candidate for the United States Senate. For a long time I declined—I 
wrote letters declining. A number of persons in Mississippi visited this city to find 
arguments by which I might be influenced to become a candidate. I hesitated because 
it would necessitate the abandonment of my whole military life. Finally, for personal 
and public reasons, I decided to become a candidate and leave the Army. My intentions 
were publicly declared and sincere. (The intentions thus declared were not only to 
become a candidate for the Senate, but to remain and reside in Mississippi.) I even 
made arrangements, almost final and permanent, with a person to manage property I 
intended to buy. This was before I left Mississippi. My resignation was accepted by 
the President before he signed the bill to admit the State.’’ 

The conclusion of the committee upon these facts is that General Ames was not, when 
elected, an inhabitant of the State for which he was chosen, and that he is not entitled 
to take his seat. 

The committee therefore recommend the adoption of the following resolution: 

Resolved , That Adelbert Ames is not eligible to the seat in the Senate of the United 
States to which he has been appointed. 

Monday, March 21, 1870. 

[A motion was made by Mr. Morton that the Senate proceed to the consideration of 
the resolution reported by the committee. After debate, the motion was withdrawn. 
The debate is found on pages 2087, 2088 of the Congressional Globe referred to in the 
head-note. This motion does not appear in the Senate Journal.] 

Tuesday, March 22, 1870. 

The Senate proceeded to consider the resolution reported by Mr. Conkling from the 
Committee on the Judiciary on the credentials of Adelbert Ames, claiming to be a 
Senator-elect from the State of Mississippi, viz: 

u Resolved, That Adelbert Ames is not eligible to the seat in the Senate of the United 
States to which he has been appointed. ’ ’ 

After debate, 

On motion by Mr. Hamlin, the Senate adjourned. 

[The debate is found on pages 2122, 2123, 2125-2135 of the Congressional Globe re¬ 
ferred to in the head-note. ] 

Wednesday, March 23, 1870. 

The Senate resumed, &c., and 

After debate, 

On motion by Mr. Thurman (at five minutes before 5 o’clock p. m.) that the Senate 
adjourn, it was determined in the affirmative—yeas 28, nays 25. 

[The debate is found on pages 2156-2169 of the Congressional Globe referred to in the 
head-note.] 


ADELBERT AMES. 


377 


The Senate resumed, &c. 
[No debate took place.] 

The Senate resumed, &c. 
[No debate took place. ] 

The Senate resumed, &c. 
[No debate took place.] 


Monday, March 28, 1870. 
Tuesday, March 29, 1870. 
Wednesday, March 30, 1870. 


_ Thursday, March 31, 1870. 

The Senate resumed, &c. 

Pending debate thereon, 

Mr. Morrill, of Maine, presented a resolution adopted by the legislature of the State 
ot Mississippi to facilitate the admission of Adelbert Ames to a seat in the Senate ot 
the United States; which was read. 

Ordered, That it lie on the table. 

After further debate, 

On motion by Mr. Hamlin (at 5 o’clock p. m.), the Senate adjourned. 

[The debate is found on pages 2303-2316 of the Congressional Globe referred to in the 
head-note. 


Friday, April 1, 1870. 

The Senate resumed the consideration of the following resolution, reported by the 
Committee on the Judiciary, on the credentials of Adelbert Ames, claiming to be a 
Senator-elect from the State of Mississippi, viz: 

“ Resolved , That Adelbert Ames is not eligible to the seat in the Senate of the United 
States to which he has been appointed.” 

After debate, 

On motion by Mr. Sumner to amend the resolution by striking out the word “not,” 

After further debate, 

On the question to agree to the amendment proposed by Mr. Sumner, it was deter¬ 
mined in the affirmative—yeas 40, nays 12. 

On motion by Mr. Pomeroy, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Abbott, Brownlow, Cameron, Cattell, 
Chandler, Cole, Corbett, Cragin, Drake, Fenton, Flanagan, Gilbert, Hamilton of Texas, 
Hamlin, Harris, Howard, Howe, Howell, McDonald, Morrill of Maine, Morrill of Ver¬ 
mont, Nye, Osborn, Patterson, Pomeroy, Pool, Ramsey, Revels, Rice, Ross, Scott, Sher¬ 
man, Spencer, Stewart, Sumner, Thayer, Tipton, Warner, Williams, and Wilson. 

Those who voted in the negative are Messrs. Bayard, Carpenter, Casserly, Conkling, 
Davis, Edmunds, McCreery, Norton, Pratt, Schurz, Trumbull, and Vickers. 

So the amendment was agreed to; and, 

On the question to agree to the resolution as amended, it was determined in the 
affirmative. 

So it was 

Resolved, That Adelbert Ames is eligible to the seat in the Senate of the United States 
to which he has been appointed. 

And thereupon the oaths prescribed by law were administered to Mr. Ames by the 
Vice-President, and he took his seat in the Senate. 

Mr. Drake submitted the following resolution; which was considered, by unanimous 
consent, and agreed to: 

11 Resolved, That the Secretary of the Senate be directed to pay the Senators from the 
State of Mississippi the compensation allowed by law, from the 23d day of February, 
1870, and the Senators from the State of Texas from the 30th day of March, 1870, the 
dates of the acts declaring said States, respectively, entitled to representation in the 
Congress of the United States.” 

After the consideration of executive business, the Senate adjourned. 

[The debate is found on pages 2335-2349 of the Congressional Globe referred to in the 

bsad-note.] 


378 


SENATE ELECTION CASES. 


[Forty-first Congress—Second session.] 

OSSIAN B. HART vs. ABIJAH GILBERT, 
of Florida. 

April 1,1870, the petition of Mr. Hart, claiming to be entitled to a seat in the Senate for the term 
beginning March 4,1869, and held by Abijah Gilbert, was presented and referred to the Committee 
on the Judiciary. The facts in regard to the elections were as follows: Florida had been without 
representation in Congress from 1861 to 1868. After the passage of the reconstruction acts, but before 
the passage of the act declaring Florida entitled to representation in Congres-s, the legislature of 
Florida, on the second Tuesday after its organization, proceeded, in accordance with the act of Con¬ 
gress of July 25, 1866, “regulating the times and manner ©f holding elections for Senators in Con¬ 
gress,” to the election of two Senators tolfill vacancies in the terms ending March 3,1869, and March 3, 
1873. At the end of three days these two elections had been made. On the fourth day the legislature 
proceeded to the election of a Senator for the term beginning March 4,1869, and Mr. Gilbert was 
elected. In January, 1870, the same legislature held a new election and elected the petitioner for the 
term to which it had previously elected Mr. Gilbert. The petitioner claimed that the election of Mr. 
Gilbert was void because he had been elected before the passage of the act declaring Florida entitled 
to representation, and because he had not been elected in accordance with the act of July 25,1866, in¬ 
asmuch as the legislature had failed to take action on the “second Tuesday after its organization” 
in regard to the third Senator who was to be elected, but only in regard to the two Senators who 
were to fill the existing vacancies, and had taken no action in regard to the election of the third 
Senator until the third day after the “second Tuesday.” April 13,1870, the committee reported in 
regard to the first objection that the subsequent recognition of the State government made valid, by 
relation, its acts from the time of its organization; and in regard to the second objection, that the 
object of the act of Congress was to fix a time when proceedings for the election of Senators should 
be commenced and continued till the elections were effected, and that this legislature bad acted in 
conformity therewith. They recommended the adoption of a resolution that Abijah Gilbert was 
duly elected and entitled to hold the seat, which was agreed to without a division April 28,1870. Mr. 
Hart was allowed mileage and compensation. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journal, 2d sess. 41st Cong., and the report of the committee from Senate Reports, 
2d sess. 41st Cong., No. 101. 

Special references to the debates, which are found in parts 3 and 4 of the Congressional Globe, 2d 
sess. 41st Cong., are inserted below. 


Friday, April 1, 1870. 

Mr. Osborn presented the petition* of Ossian B. Hart, of Florida, claiming to be en¬ 
titled to a seat in the Senate as a Senator duly elected by the legislature of the State of 
Florida, and asking that his claim to said seat may be investigated by the Senate; which 
was referred to the Committee on the Judiciary and ordered to be printed. 

[Remarks accompanying the presentation of the petition are found on pages 2330, 
2331 of part 3 of the Congressional Globe referred to in the head-note. ] 

Wednesday, April 13, 1870. 

Mr. Trumbull, from the Committee on the Judiciary, to whom was referred the peti¬ 
tion of Ossian B. Hart, claiming to be entitled to the seat in the Senate now held by the 
Hon. Abijah Gilbert, as a Senator in Congress from the State of Florida, submitted a 
report (No. 101), accompanied by the following resolution. [Resolution found at end of 
report. ] 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Trumbull (chairman), Stewart, Edmunds, Conk- 
ling, Rice, Carpenter, and Thurman.] 

In the Senate of the United States. 

April 13, 1870.—Ordered to be printed. 

Mr. Trumbull, from the Committee on the Judiciary, submitted the following report: 

The Committee on the Judiciary, to whom was referred the petition of Ossian B. Hart, 
of Florida, claiming a seat in the Senate from the State of Florida for the term which 
commenced March 4, 1869, report as follows: 

In consequence of the rebellion the State of Florida was without representation in the 


* Found in Senate Miscellaneous, 2d sess. 41st Cong., No. 102. 



HART VS. GILBERT. 


379 


Senate of the United States from 1861 till 1868. In pursuance of a constitution framed 
and adopted under what are known as the reconstruction acts, a legislature convened 
in Florida, Monday, June 8, 1868, the members of the assembly and half of the senate 
having been elected for two years, and the other half of the senate for four years. 

This legislature, on the 16th day of June, 1868, being the second Tuesday after its 
meeting and organization, proceeded in accordance with the act of Congress of July 25, 
1866, “regulating the times and manner of holding elections for Senators in Congress, ” 
to take action for the election of two United States Senators to fill the then existing 
vacancies for the terms expiring on the 3d of March, 1869, and the 3d of March, 1873. 
On Wednesday, the day following that on which each house had separately but without 
result voted for Senators to fill the two existing vacancies, the members of the two 
houses convened in joint assembly, elected a Senator to fill the vacancy expiring March 
3, 1869, and adjourned till the next day, when they again assembled and elected a Sen¬ 
ator for the term expiring March 3, 1873, and adjourned without date. 

The next day (Friday) the members of the two houses, each house having previously 
concurred in a resolution to that effect, assembled again in joint convention for the elec¬ 
tion of a Senator to succeed the one whose term would expire on the 3d of March, 1869, 
when Abijah Gilbert, the present sitting member, was elected. 

The petitioner was chosen by the same legislature in January, 1870, to represent the 
State in the Senate for the term commencing March 4, 1869, and now claims the seat 
occupied by Mr. Gilbert. 

The elections of 1868 all took place before the passage of the act of June 25, 1868, 
which declared Florida entitled to representation in Congress. 

Two objections are taken to the election of the sitting member: 

1. That he was chosen by the legislature of a State not at the time recognized as en¬ 
titled to representation in Congress. 

2. That he was not elected in conformity with the act of July 25, 1866. 

The first objection is answered by the fact that the subsequent recognition of the 
State as entitled to representation under the Constitution, in pursuance of which the 
legislature was elected and organized, related back to and made valid its acts from the 
time of its organization. Senators and Representatives from several of the reconstructed 
States have been chosen before the States were declared entitled to representation, and 
no one has ever questioned their right to seats when Congress subsequently recognized 
the government under which they were chosen as entitled to representation. 

The only ground for the other objection arises from the fact that the legislature failed 
to take action on the ‘ ‘ second Tuesday after its organization ’ ’ in regard to the third 
Senator who was to be elected, but it took action on the subject of electing Senators, and 
actually voted, though unsuccessfully, on that day for persons to fill the two existing 
vacancies. 

The object of the act of Congress was to insure the election of Senators by the proper 
legislature, and to fix a time when proceedings for that purpose should be commenced 
and continued till the elections were effected. 

The legislature by which the sitting member was elected was the one chosen next 
preceding the term which would commence on the 4th of March, 1869, and was, there¬ 
fore, the proper legislature to elect. ‘ ‘ The second Tuesday after the meeting and organ¬ 
ization of the legislature ” was the time prescribed by the act of Congress for initiating 
the election of Senators, and that was the time when the legislature proceeded to that 
business. There being three Senators to elect, it took action on that day only in refer¬ 
ence to two of them. Did its failure to take action on that day, and the two subsequent 
days (which were occupied in electing the first two Senators), in reference to the third 
Senator, render his election, in all other respects regular, invalid? The committee 
think not. 

The language of the law is: “In case no person shall receive such majority on the 
first day, the joint assembly shall meet at 12 o’clock, meridian, of each succeeding day 
during the session of the legislature, and take at least one vote till a Senator shall be 
elected.” No formal adjournment from day to day by vote of the joint assembly was 
necessary, but it was the duty of the members of each house to meet in joint assembly 
at noon of each day and vote at least once till all the Senators whom the legislature had 
the right to elect were chosen. This is exactly what the legislature did. 

In no view which the committee can take would the petitioner be entitled to a seat 
in the Senate, for if the election of the sitting Senator was irregular, that of the peti¬ 
tioner, by the same legislature at a subsequent session, was equally so. 

The committee recommend for adoption the following resolution: 

Resolved , That Abijah Gilbert was duly elected a Senator from the State of Florida foi 
the term commencing March 4, 1869, and is entitled to hold his seat as such. 


880 


SENATE ELECTION CASES. 


Friday, April 15, 1870. 

Mr. Trumbull presented the memorial* of Ossian B. Hart, praying that he may he 
allowed to be heard in argument before the Senate in support of his claim to a seat in 
the Senate as a Senator duly elected by the legislature of the State of Florida. 

Ordered , That it lie on the table. 

[The debate is found on pages 2705, 2706 of part 3 of the Congressional Globe referred 
to in the head-note. ] 

Thursday, April 28, 1870. 

On motion by Mr. Trumbull, the Senate proceeded to consider the resolution reported 
from the Committee on the Judiciary, declaring that Abijah Gilbert was duly elected a 
Senator from the State of Florida for the term commencing March 4,1869, and is entitled 
to hold his seat as such; and the resolution was agreed to. 

[The debate is found on pages 3053, 3054 of part 4 of the Congressional Globe referred 
to in the head-note. ] 

Monday, May 2, 1870. 

Mr. Howe submitted the following resolution; which was read the first and second 
times, by unanimous consent, and referred to the Committee to Audit and Control the 
Contingent Expenses of the Senate: 

“ Resolved, That the Secretary of the Senate be directed to pay out of the contingent 
fund of the Senate to O. B. Hart, claimant of a seat in the Senate from the State of Flor¬ 
ida, the usual mileage of a Senator and the monthly pay from the date of presenting his 
credentials until the passage of the resolution declaring him not entitled to a seat. ’ ’ 

Tuesday, May 10, 1870. 

Mr. Ferry, from the Committee to Audit and Control the Contingent Expenses of the 
Senate, to whom was referred the resolution of May 2,1870, to pay O. B. Hart the usual 
mileage of a Senator for ohe session and pay from the date of presenting his credentials 
until the passage of the resolution declaring him not entitled to a seat, reported it with¬ 
out amendment. 


Wednesday, May 11, 1870. 

The Senate proceeded to consider, as in Committee of the Whole, the resolution to pay 
O. B. Hart the usual mileage of a Senator for one session and the monthly pay of a Sen¬ 
ator from the date of presenting his credentials until the adoption of the resolution by 
the Senate declaring him not entitled to a seat in the Senate of the United States as a 
Senator from the State of Florida; and no amendment being made, it was reported to the 
Senate. 

Ordered , That it be engrossed and read the third time. 

The said resolution was read the third time. 

Resolved, That it pass. 


* Found on page 2705 of part 3 of the Congressional Globe referred to in the head-note. 



REYNOLDS VS. HAMILTON. 


381 


\ 

["Forty-second Congress—First session.] 

JOSEPH J. REYNOLDS vs. MORGAN 0. HAMILTON, 

of Texas. 

July 13,1870, the credentials of Mr. Hamilton, elected for the term beginning March 4,1871, were 
presented. March 3,1871, the credentials of Mr. Reynolds, elected for the same term, were presented. 
March 4, both credentials were referred to the Committee on Privileges and Elections. The facts 
in regard to the elections were as follows: Texas had been without representation in Congress from 
1861 to 1870. After the passage of the several acts for the reconstruction of Texas, but before the pas¬ 
sage of the act declaring her entitled to representation in Congress, the legislature of Texas, in Feb¬ 
ruary, 1870, proceeded, in accordance with the act of Congress of July 25,1866, “ regulating the times 
and manner of holding elections for Senators in Congress,” to the election of Senators to fill vacan¬ 
cies in the terms ending March 3,1871, and March 3,1875. At the same time the legislature elected Mr. 
Hamilton for the term beginning March 4,1871. The Senators elected to fill the vacancies were ad- 
mitte< l to their seats. By the constitution of Texas there was another session of the same legislature 
after the elections referred to, and before March4,1871. The legislature at this second session passed 
a resolution declaring the election of Mr. Hamilton illegal, and on the second Tuesday after its 
organization elected Mr. Reynolds. Mr. Reynolds claimed the seat on the ground that the election 
of Mr. Hamilton was void, because he had been elected before the passage of the act declaring 
Texas entitled to representation, and because there was another session of the legislature after the 
election of Mr. Hamilton, and before the commencement of the term for which he was elected. 
March 18, the committee reported the facts as above, and the conclusions that the case was precisely 
like that of Hart and Gilbert (see page320); that the election of Mr. Hamilton had been in accordance 
with the act referred to, which declares ‘‘that the legislature of each State which shall be chosen 
next preceding the expiration of the time for which any Senator was elected to represent said State 
in Congress shall, on the second Tuesday after the meeting and organization thereof, proceed to 
elect a Senator,” &c.; and that the subsequent recognition of the State government of Texas had 
made valid, by relation, its acts from the time of its organization, so that the fact that the State was 
not admitted to representation when Mr. Hamilton was elected was immaterial. They recom¬ 
mended that Mr. Hamilton be admitted to his seat. He was admitted without debate. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journals, 41st Cong, and 1st sess. 42d Cong.; and the report of the committee from 
Senate Reports, 1st sess.42d Cong., No.2. 

There were no debates. 


[Forty-first Congress.] 


Wednesday, July 13, 1870. 

Mr. Nye presented the credentials of Morgan C. Hamilton, elected a Senator in Con¬ 
gress by the legislature of the State of Texas for the term of six years commencing on 
the 4 th day of March, 1871. 

The credentials were read. 

Ordered , That they lie on the table. 

Friday, March 3, 1871. 

Mr. Morton presented the credentials of Joseph J. Reynolds, elected a Senator in Con¬ 
gress by the legislature of the State of Texas for the term of six years commencing on 
the 4th day of March, 1871. 

The credentials were read. 


[First session of the Forty-second Congress. ] 

Saturday, March 4, 1871. 

Mr. Flanagan here submitted a motion that the oaths prescribed by law be adminis¬ 
tered by the Vice-President to Morgan C. Hamilton, whose credentials as Senator-elect 
from the State of Texas were presented on the 13th of July, 1870. 

Mr. Morton presented a certified copy of a joint resolution of the legislature of the 
State of Texas, approved January 26,1871, providing for the election of a United States 
Senator from that State on the 24th day of January, 1871, for the term of six years com¬ 
mencing on the 4th day of March, 1871, and declaring the election of Morgan C. Ham¬ 
ilton, on the 22d of February, 1870, as Senator for said term, illegal; which was read. 

On motion by Mr. Morton, 

Ordered , That the resolution of the legislature of the State of Texas and the creden¬ 
tials of Mr. Morgan C. Hamilton and Mr. Joseph J. Reynolds lie on the table. 


382 


SENATE ELECTION CASES. 


Monday, March 13, 1871. 

On motion by Mr. Anthony, 

Ordered , That the credentials of Joseph J. Reynolds, and the credentials of Morgan 
C. Hamilton, with the resolution of the legislature of Texas, declaring the election of 
said Hamilton on the 22d of February, 1870, as Senator from that State for six years 
from March 4, 1871, illegal, be referred to the Committee on Privileges and Elections. 

Wednesday, March 15, 1871. 

The Vice-President laid before the Senate the credentials of J. J. Reynolds, elected a 
Senator in Congress by the legislature of the State of Texas for the term of six years, 
commencing on the 4th day of March, 1871. 

The credentials were read. 

[The letter accompanying the credentials states that inadvertently the governor had 
not signed the credentials presented March 3. ] 

SATURDAY, March 18, 1871. 

Mr. Stewart, from the Committee on Privileges and Elections, to whom was reierred 
the credentials of Morgan C. Hamilton, the credentials of Joseph J. Reynolds, and the 
resolution of the legislature of the State of Texas declaring the election of Morgtin C. 
Hamilton illegal, submitted a report (No. 2) thereon, accompanied by the following res¬ 
olution: 

“ Resolved , That Morgan C. Hamilton was duly elected a Senator from the State of 
Texas for the term commencing March 4, 1871, and is entitled to take his seat as such 
upon taking the required oaths. ’ ’ 

The Senate, by unanimous consent, proceeded to consider the said resolution; and the 
resolution was agreed to. 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Stewart, Morton, Rice, Hamlin, Hill, and Thur¬ 
man.] 


In the Senate of the United States. 

March 18, 1871.— Ordered to be printed. 

Mr. Stewart, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

The Committee on Privileges and Elections, to whom was referred the credentials of 
the Hon. Morgan C. Hamilton, Senator-elect from the State of Texas, submit the fol¬ 
lowing report: 

That in pursuance of the several acts of Congress for the reconstruction of the State 
of Texas, the legislature convened on the 8th and completed its organization on the 
10th of February, 1870. On the 22d of February, 1870, second Tuesday after its organ¬ 
ization, the legislature elected the Hon. Morgan C. Hamilton a Senator of the United 
States for the term commencing on the 4th of March, 1871. 

The same legislature on the same day elected the Hon. J. W. Flanagan a Senator of 
the United States for the term ending March 3, 1875, and the Hon. Morgan C. Hamilton 
for the term ending March 3, 1871. These last two elections were to fill vacancies then 
existing, and both of these Senators were admitted to their seats. 

By the constitution of Texas there was another session of the same legislature held in 
Texas, after the election of Mr. Hamilton, and before the expiration of his term. This 
session commenced on the 10th of January, 1871, and on the second Tuesday after its 
organization proceeded to the election of a Senator for the term commencing on the 4th 
of March, 1871, the same term for which Mr. Hamilton had been elected at the pre¬ 
ceding session. 

General J. J. Reynolds is represented to have been elected, although the certificate 
referred to the committee is not signed by the governor. 

The reasons assigned for the election of General Reynolds are that the legislature 
had no authority to elect Mr. Hamilton at the time of his election, first, because the 
State had not at that time been recognized as entitled to representation in Congress; and, 
secondly, because there was another session of the legislature after the election of Mr. 
Hamilton, and before the commencement of the term for which he was elected. 

The case of Hon. Abijah Gilbert, Senator from Florida, is precisely in point upon 
both of these questions. 

The act of Congress of July 25, 1866, declares “that the legislature of each State 
which shall be chosen next preceding the expiration of the time for which any Senator 


REYNOLDS YS. HAMILTON. 


383 


was elected to represent said State in Congress shall, on the second Tuesday after the 
meeting and organization thereof, proceed to elect a Senator in Congress in the place of 
such Senator so going out of office, in the following manner.’ ’ 

The fact that the State was not admitted to representation until after the election of 
Mr. Hamilton is immaterial. The act admitting Texas to representation related back 
to the organization, and ratified the proceedings of the legislature. 

The committee therefore recommend that Mr. Hamilton be permitted to take his seat 
on taking the oath prescribed by the Constitution and the laws. 

Monday, March 20, 1871. 

Mr. Morgan C. Hamilton, from the State of Texas, attended, and the oaths prescribed 
by law were administered to him by the Vice-President, and he took his seat in the 
Senate. 


384 


SENATE ELECTION CASES, 


[Forty-second Congress—First and second sessions.] 

GEORGE GOLI)THWAITE, 

Senator from Alabama from January 15, 1872, till March 3,1877. 


February 6,1871, the credentials of Mr. Goldthwaite, elected for the term beginning March 4,1871, 
were presented. March 4, a protest of members of the legislature of Alabama against his admission 
to a seat in the Senate was presented; which, with the credentials, was ordered to lie on the table. 
March 13, the credentials and protest were referred to the Committee on Privileges and Elections. 
March 20, the committee reported that there would not be time at that session of Congress fully to 
consider the grounds upon which his right to a seat was contested, and reported a resolution that he 
be permitted to take his seat, and that the committee proceed thereafter to consider the grounds of 
the protest and report to the Senate thereon. This report and resolution included-the case of Foster 
Blodgett, of Georgia, it being unanimous as to Mr. Goldthwaite, two dissenting as to Mr. Blodg¬ 
ett. A motion was made to amend the resolution by striking out the name of Foster Blodgett, but 
after debate it was ordered that the resolution lie on the table. January 9,1872, in the next session 
of Congress, the case of Mr. Blodgett having been disposed of, the Senate resolved “ that George 
Goldthwaite be permitted to take a seat in this body as a Senator from the State of Alabama upon 
taking the proper oath; and that the Committee on Privileges and Elections proceed hereafter to 
consider the grounds on which his right to a seat in the Senate is contested, and hereafter make re¬ 
port to the Senate thereon.” January 15, Mr. Goldthwaite took his seat. No further report was 
made on the case, and the Senate took no further action in regard to it. The chief grounds of the 
protest (given below) were that some of the members of the legislature voting for Mr. Gold¬ 
thwaite were not legally elected, having been either defeated at the polls or having procured their 
elections through fraud; that one member voting for Mr. Goldthwaite had no certificate of election 
to the legislature; that some members voting for him were under political disabilities. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journals, 3d sess.41st Cong., and 1st and 2d sess. 42d Cong.; the report of the 
committee from Senate Reports, 42d Cong., 1st sess., No. 3; and a copy of the protest above referred 
to from the Congressional Globe, parti, 1st sess. 42d Cong., pages 1,2. 

Special references to the debates of each day are inserted below. 


[Third session of the Forty-first Congress.] 

Monday, February 6, 1871. 

Mr. Spencer presented the credentials of George Goldthwaite, elected a Senator by 
the legislature of the State of Alabama for the term of six years commencing on the 4th 
of March, 1871. 

The credentials were read. 


[First session of the Forty-second Congress.] 

Monday, March 4, 1871. 

Mr. George Goldthwaite, whose credentials were presented on the 6th day of February 
last, appeared to take the oaths prescribed by law, when 
Mr. Sherman presented a protest signed by forty-five members of the senate and 
house of representatives of the legislature of the State of Alabama against the admission 
of George Goldthwaite to a seat in the Senate as a Senator from said State; which was 
read. 

After debate, 

On motion by Mr. Sherman, 

Ordered , That the protest, with the credentials of Mr. Goldthwaite, lie upon the 
table. 

[The debate is found on pages 1-4 of the Congressional Globe, part 1, 1st sess. 42d 
Cong.] 

Protest of members of the Alabama legislature against the admission of Mr. Goldthwaite to 

a seat in the Senate. 

Montgomery, Ala., January 26, 1871. 

To the Senate of the United States: 

The subscribers, members of the senate and house of representatives of the State ot 
Alabama, respectfully represent: 

That they protest against the admission of Hon. George Goldthwaite to the Senate of 


GEORGE GOLDTHWAITE. 


385 


the United States as a Senator from Alabama, on the grounds that he was not elected by 
a majority of the legal votes of the joint meeting of the legislature. He was declared 
elected by the following vote: For George Goldth vaite, 65 votes; for Willard Warner, 50; 
for William J. Haralson, 14 votes. It will be seen that 65 votes constitute a majority 
of the votes cast, and that number of legal votes are necessary to an election. 

We represent that Hon. George Goldthwaite did not receive that number of legal votes, 
as B. M. Henry, claiming to be a representative from Russell County, in said State, who 
voted for Hon. George Goldthwaite, was not elected by the people of said county, did not 
have a certificate of his election, as is required by our laws, but was defeated at the polls 
by several hundred, and was not legally entitled to vote for a United States Senator in 
said joint meeting of the legislature, which, if said illegal votes had been rejected, would 
have been sufficient to prevent the announcement of the election of Hon. George Gold¬ 
thwaite to a seat in your honorable body. 

Saul Bradford, of Talladega county, who had been rejected by the people at the ballot- 
box, was permitted to vote for said Hon. George Goldthwaite, when in our opinion his 
vote should have been rejected, as he had never been legally elected a member of the 
legislature. 

In the counties of Greene, Sumter, Lee, and other counties, the representatives of 
which all voted for Hon. George Goldthwaite, we have every reason to believe that the 
elections of said representatives were procured by intimidating the voters, and in several 
instances fraud added thereto, and that the gentlemen claiming to be representatives of 
these counties were not legally elected by the people of said counties, are not their legal 
representatives, and were not entitled to vote for United States Senator at the joint meet¬ 
ing of the general assembly. 

We are informed that some of the members of the legislature who voted for Hon. 
George Goldthwaite are laboring under political disabilities imposed by the fourteenth 
amendment of the Constitution of the United States, and it is an inquiry worthy the 
consideration of the Senate of the United States whether Hon. George Goldthwaite is not 
laboring under the same disabilities for his actions during the recent rebellion of the 
Southern States. 

Believing, therefore, that Hon. George Goldthwaite is not legally elected Senator fronc 
Alabama, we respectfully pray that the Senate of the United States may so decide, and 
declare his seat vacant. 

[The names of the signers are here omitted.] 


Monday, March 13, 1871. 

On motion by Mr. Anthony, 

Ordered , That the credentials of George Goldthwaite, and the protest of members of 
the legislature of the State of Alabama against the election of said Goldthwaite as a Sen¬ 
ator of the United States by the legislature of said State, be referred to the Committee 
on Privileges and Elections. 

Monday, March 2®, 1871. 

Mr. Stewart, from the Committee on Privileges and Elections, to whom were referred 
the credentials of Foster Blodgett, with the memorial of members of the legislature of 
the State of Georgia, protesting i gainst the admission of said Blodgett to a seat in the 
Senate of the United States as a Senator from that State, and the credentials of George 
Goldthwaite, with the protest of Sunday members of the legislature of the State of Ala¬ 
bama against the election of said Goldthwaite, submitted a report (No. 3) thereon, ac¬ 
companied by the following resolution. [Resolution found at end of report.] 

EEPOBT OF COMMITTEE. 

In the Senate of the United States. 

Maech 20, 1871.—Ordered to be printed. 

Mr. Stewart, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

The Committee on Privileges and Elections, to whom were referred the credentials of 
George Goldthwaite, claiming a seat in this body as a Senator from the State of Alabama, 
and the credentials of Foster Blodgett, claiming a seat in this body as a Senator from 
the State of Georgia, report: 

That said credentials are in due form, and prima facie entitle said Goldthwaite and 
Blodgett to their seats upon taking the oath prescribed by the Constitution and laws, 
neither of them being under any disability. 

The grounds on which their right to seats are contested have not been fully considered 
by the committee for want of time, nor will there be sufficient time at this session to 

S. Doc. 11-25 



386 


SENATE ELECTION CASES. 


consider them. In the opinion of your committee it would be unjust to those States and 
gentlemen to keep the latter out of their seats until such investigation can be had. 

The committee therefore report the following resolution: 

Resolved ,, That George Goldthwaite and Foster Blodgett be permitted to take seats in 
this body upon taking the proper oath; and that the Committee on Privileges and Elec¬ 
tions proceed hereafter to consider the grounds on which their rights to seats, respect¬ 
ively, are contested, and hereafter make reports to the Senate thereon. 

WM. M. STEWART. 

O. P. MORTON. 

H. HAMLIN. 

B. F. RICE. 

We concur in the foregoing as to Goldthwaite, but not as to Blodgett. 

JOSHUA HILL. 

A. G. THURMAN. 

Wednesday, March 22, 1871. 

On motion by Mr. Stewart, the Senate proceeded to consider the resolution reported 
by the Committee on Privileges and Elections to admit George Goldthwaite and Foster 
Blodgett to seats in the Senate of the United States as Senators, respectively, from the 
States of Alabama and Georgia; when 

Mr. Thurman called for a division of the question, so that it shall be taken first upon 
the admission of George Goldthwaite to his seat in the Senate as a Senator from the State 
of Alabama. 

Pending debate, 

Ordered , That the further consideration of the said resolution be postponed to to¬ 
morrow. 

[The debate is found on pages 218, 219 of the Congressional Globe, part 1, 1st sess. 
42d Cong.] 

Saturday, March 25, 1871. 

On motion by Mr. Stewart, the Senate resumed, &c. 

[The debate is found on pages 271-274 of the Congressional Globe, part 1, 1st sess. 
42d Cong.] 

Thursday, April 6, 1871. 

On motion by Mr. Stewart, the Senate resumed the consideration of the resolution re¬ 
ported by the Committee on Privileges and Elections to permit George Goldthwaite and 
Foster Blodgett to take seats in the Senate of the United States, upon taking the proper 
oaths, as Senators respectively from the States of Alabama and Georgia; and 

A division of the question having heretofore been called for by Mr. Thurman, so that 
a separate vote be taken on the admission of each person named in the resolution, 

The Vice-President decided that the question on the resolution was not susceptible of a 
division, as desired by Mr. Thurman, but that the end desired by him could be attained by 
amendment. 

On motion by Mr. Hill to amend the resolution by striking out the words “and Fos¬ 
ter Blodgett,” 

After debate, 

Ordered , That the further consideration of the resolution be postponed to to-morrow. 

[The debate is found on pages 494-498 of the Congressional Globe, part 1, 1st sess. 
42d Cong. ] 

******* 

On motion by Mr. Stewart, the Senate resumed the consideration of the resolution re¬ 
ported by the Committee on Privileges and Elections to permit George Goldthwaite and 
Foster Blodgett to take seats in the Senate of the United States, upon taking the proper 
oaths, as Senators respectively from the States of Alabama and Georgia. 

On motion by Mr. Edmunds, the Senate proceeded to the consideration of executive 
business. 

[The debate is found on pages 506, 507 of the Congressional Globe, part 1, 1st sess. 
42d Cong.] 

Friday, April 7, 1871. 

The Senate resumed the consideration of the resolution reported by the Committee on 
Privileges and Elections to permit George Goldthwaite and Foster Blodgett to take seats 
in the Senate of the United States, upon taking the proper oaths, as Senators respectively 
from the States of Alabama and Georgia; and 

The question being on the amendment proposed by Mr. Hill, 

On motion by Mr. Anthony, and by unanimous consent, the further consideration was 
informally passed over. 

******* 

The Senate then again resumed the consideration of the resolution reported by the 


GEORGE GOLDTHWAITE. 


387 


Committee on Privileges and Elections to permit George Goldthwaite and Foster Blodgett 
to take seats in the Senate of the United States, upon taking the proper oaths, as Sena¬ 
tors respectively from the States of Alabama and Georgia; and 

The question being on the amendment proposed by Mr. Hill to the resolution to 
strike out the words “and Foster Blodgett,” 

On motion by Mr. Edmunds, the Senate proceeded to the consideration of executive 
business. 

[No debate took place.] 

Monday, April 10, 1871. 

The Senate resumed the consideration of the resolution reported by the Committee on 
Privileges and Elections to permit George Goldth waite and Foster Blodgett to take seats 
in the Senate of the United States, upon taking the proper oaths, as Senators respectively 
from the States of Alabama and Georgia; and 

The question being on the amendment proposed by Mr. Hill to the resolution to strike 
out the words “and Foster Blodgett,” 

After debate, 

On motion by Mr. Edmunds that the resolution lie on the table, it was determined 
in the negative—yeas 25, nays 26. 

On motion by Mr. Stewart, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Ames, Anthony, Boreman, Bucking¬ 
ham, Carpenter, Chandler, Cole, Conkling, Corbett, Edmunds, Ferry of Michigan, Freling- 
huysen, Harlan, Hill, Hitchcock, Howe, Morrill of Vermont, Patterson, Pratt, Sawyer, 
Scott, Sherman, Tipton, Trumbull, and Windom. 

Those who voted in the negative are Messrs. Bayard, Brownlow, Cameron, Casserly, 
Clayton, Cooper, Cragin, Davis, Gilbert, Hamlin, Johnston, Kelly, Morton, Nye, Osborn, 
Ramsey, Saulsbury, Schurz, Spencer, Stevenson, Stewart, Stockton, Sumner, Thurman, 
West, and Wright. 

So the motion to lay the resolution on the table was not agreed to; and 

Pending further debate, 

Mr. Thurman raised a question of order, namely: That in discussing the question 
before the Senate debate upon the question whether Foster Blodgett or Joshua Hill had 
or had not committed perjury was not in order. 

The Vice-President sustained the point of order raised by Mr. Thurman, and ruled 
the debate on that question out of order; and 

After further debate, 

On motion by Mr. Trumbull (at 5 o’clock p. m.), the Senate adjourned. 

[The debate which took place, pages 540-558 of the Congressional Globe, part 1, 1st 
sess. 42d Cong., was wholly on the case of Mr. Blodgett.] 


Tuesday, April 11, 1871. 

The Senate resumed the consideration of the resolution reported by the Committee 
on Privileges and Elections to permit George Goldthwaite and Foster Blodgett to take 
seats in the Senate of the United States, upon taking the proper oaths, as Senators, re- 
respectively, from the States of Alabama and Georgia; and 

The question being on the amendment proposed by Mr. Hill to the resolution to strike 
out the words “and Foster Blodgett, ” 

On motion by Mr. Edmunds that the resolution lie on the table, it was determined 
in the affirmative—yeas 19, nays 17. 

On motion by Mr. Robertson, the yeas and nays being desired by one-fifth of the 
Senators present, 

Those who voted in the affirmative are Messrs. Ames, Anthony, Boreman, Carpenter, 
Chandler, Cole, Conkling, Davis of West Virginia, Edmunds, Harlan, Hill, Kelly, Mor¬ 
rill of Maine, Pratt, Scott, Sherman, Tipton, Wilson, and Wright. 

Those who voted in the negative are Messrs. Bayard, Blair, Casserly, Cooper, Davis of 
Kentucky, Gilbert, Hamilton of Maryland, Hamlin, Johnston, Morton, Rice, Robertson, 
Saulsbury, Schurz, Stevenson, Stockton, and Wickers. 

So the resolution was ordered to lie on the table. 

[No debate took place.] 

[Second session of the Forty-second Congress.] 

Thursday, December 21, 1871. 

Mr. Thurman submitted the following resolution for consideration: 

“ Resolved , That George Goldthwaite be permitted to take a seat in this body as a 
Senator from the State of Alabama, upon taking the oath, and that the Committee on 


388 


SENATE ELECTION CASES. 


Privileges and Elections proceed hereafter to consider the grounds on which his right to 
a seat is contested, and hereafter make report to the Senate thereon.” 

[The debate is found on pages 261, 262 of the Congressional Globe, part 1, 2d sess. 
42d Cong.] 

Tuesday, January 9, 1872. 

On motion by Mr. Thurman that the Senate proceed to the consideration of the reso¬ 
lution reported from the Committee on Privileges and Elections on the 20th of March 
last, to admit George Goldth waite and Foster Blodgett to seats in the Senate as Senators, 
respectively, from the States of Alabama and Georgia, it was determined in the affirm¬ 
ative, and the Senate resumed the consideration of the said resolution. 

On the question to agree to the resolution, which is in the following words: 

11 Resolved, That George Goldthwaite and Foster Blodgett be permitted to take seats 
in this body upon taking the proper oath; and that the Committee on Privileges and 
Elections proceed hereafter to consider the grounds on which their rights to seats, 
respectively, are contested, and hereafter make reports to the Senate thereon,” 

On motion by Mr. Thurman to amend the resolution by striking out all after the word 
“resolved,” and in lieu thereof inserting: 

‘ ‘ That George Goldthwaite be permitted to take a seat in this body as a Senator from 
the State of Alabama upon taking the proper oath; and that the Committee on Privi¬ 
leges and Elections proceed hereafter to consider the grounds on which his right to a 
seat is contested, and hereafter make report to the Senate thereon,” 

It was determined in the affirmative; and 

On the question to agree to the resolution as amended, it was determined in the 
affirmative. 

So the resolution as amended was agreed to. 

[The debate is found on pages 319, 320 of the Congressional Globe, part 1,2d sess. 42d 
Cong.] 

Monday, January 15,1872. 

Mr. George Goldthwaite, from the State of Alabama, attended, and the oaths pre¬ 
scribed by law were administered to him by the Vice-President, and he took his seat 
in the Senate. 


NORWOOD VS BLODGETT. 


389 


[Forty-second Congress—First and second sessions.] 

THOMAS M. NORWOOD vs. FOSTER BLODGETT, 

of Georgia. 


Januai-y 20,1871, the credentials of Mr. Blodgett, elected for the term beginning March 4,1871, were 
presented. March 2, a memorial of members of the last general assembly of Georgia, remonstrat¬ 
ing against his admission to a seat in the Senate, was presented. March 13, the credentials and 
memorial were referred to the Committee on Privileges and Elections. March 20, the committee 
reported that there would not be time at that session of Congress fully to consider the grounds upon 
which his right to a seat was contested, and reported a resolution that he be permitted to take his 
seat and that the committee proceed thereafter to consider the grounds of the remonstrance and 
report to the Senate thereon. This report and resolution included the<case of George Goldthwaite, 
of Alabama. After debate it was ordered that the resolution lie on the table. December 4,1871, in 
the next session of Congress, the credentials of Mr. hi or wood, elected for the same term, were pre¬ 
sented. December 11, they were referred to the Committee on Privileges and Elections. Decem¬ 
ber 18, the committee reported in favor of Mr. Norwood. It appears that the legislature electing 
Mr. Blodgett was elected in April, 1868. By the laws of Georgia then in force it was provided that 
another legislature should be elected in November, 1870, and should meet and organize in January, 
1871. The legislature electing Mr. Blodgett, subsequently to his election, provided by law that the 
legislature which was to be elected in November, 1870, and organized in January, 1871, should not 
be elected until December, 1870, and should not meet and organize until November, 1871. This sec¬ 
ond legislature was the one electing Mr. Norwood. The question to be decided was, which was 
the legislature “ chosen next preceding the expiration of the time for which any Senator was 
elected to represent said State in Congress?” (Act of July 25,1866.) It was claimed by Mr. Blodg¬ 
ett that chosen and elected mean different things; that the legislators are elected by the people, but 
that the legislature is not chosen until the members elected assemble and organize as a legislature; 
that the legislature electing Mr. Norwood did not assemble until after March 4,1871, and so could 
not be the one “ chosen next precedingthe expiration,” &c. The committee reported that the mean¬ 
ing of the act referred to was that “ the legislature whose members should be elected next preced¬ 
ing the expiration of the Senatorial term should elect the successor”; that the words c/iose/uand 
elected were synonymous. They reported a resolution that Mr. Norwood was entitled to the seat, 
which was agreed to December 19, and Mr. Norwood took the oath of office. 

Mr. Blodgett was allowed compensation and mileage. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journals, 3d sess.41st Cong., and 1st and 2d ses§.42d Cong., and the reports of the 
committee from Senate Reports, 42d Cong., 1st sess.,No. 3, and 42d Cong., 2d sess., vol. 1, No. 10. 

Special references to the debates of each day are inserted below. 


[Third session of the Forty-first Congress. ] 

Friday, January 20, 1871. 

Mr. Morton presented the credentials of Mr. Foster Blodgett, elected a Senator from 
the State of Georgia for the term of six years commencing on the 4th day of March, 1871. 
The credentials were read. 

Ordered , That they lie on the table. 

Thursday, March 2, 1871. 

Mr. Hill presented a memorial of members of the last general assembly of the State of 
Georgia, remonstrating against the admission of Foster Blodgett to a seat in the Senate 
of the United States. 

Ordered , That it lie on the table. 


[First session of the Forty-second Congress.] 

Saturday, March 4, 1871. 

On motion by Mr. Morton, 

Ordered , That the credentials of Mr. Foster Blodgett, as Senator-elect from the State 
of Georgia, and the protest of members of the general assembly of the State of Georgia 
against his election, on the files of the last Congress, be taken from the files and laid on 
the table. 

[The debate is found on pages 4, 5 of the Congressional Globe, part 1, 1st sess. 42d 
Cong.] 

Monday, March 13, 1871. 

On motion by Mr. Anthony, 

Ordered , That the credentials of Foster Blodgett aiid the memorial of members of the 
general assembly of the State of Georgia against the admission of said Blodgett to a seat 


390 


SENATE ELECTION CASES. 


in the Senate of the United States as a Senator from that State be referred to the Com¬ 
mittee on Privileges and Elections. 

Monday, March 20, 1871. 

Mr. Stewart, from the Committee on Privileges and Elections, to whom were referred 
the credentials of Foster Blodgett, with the memorial of members of the legislature of 
the State of Georgia, protesting against the admission of said Blodgett to a seat in the 
Senate of the United States as a Senator from that State, and the credentials of George 
Goldthwaite, with the protest of sundry members of the legislature of the State of Ala¬ 
bama against the election of said Goldthwaite, submitted a report (No. 3) thereon, ac¬ 
companied by the following resolution: 

“ Resolved , That George Goldthwaite and Foster Blodgett be permitted to take seats in 
this body upon taking the proper oath; and that the Committee on Privileges and Elec¬ 
tions proceed hereafter to consider the grounds on which their rights to seats, respect¬ 
ively, are contested, and hereafter make reports to the Senate thereon. ’ ’ 

Mr. Hill presented a brief* of the memorial of members of the legislature of the State 
of G eorgia, protesting against the admission of Foster Blodgett to a seat in the Senate of 
the United States as a Senator from that State. 

Ordered , That it lie on the table and be printed. 

REPORT OF COMMITTEE. 

In the Senate of the United States. 

March 20, 1871. —Ordered to be printed. 

Mr. Stewart, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

The Committee on Privileges and Elections, to whom were referred the credentials of 
George Goldthwaite, claiming a seat in this body as a Senator from the State of Alabama, 
and the credentials of Foster Blodgett, claiming a seat in this body as a Senator from the 
State of Georgia, report: 

That said credentials are in due form, and prima facie entitle said Goldthwaite and 
Blodgett to their seats upon taking the oath prescribed by the Constitution and laws, 
neither of them being under any disability. 

The grounds on which their rights to seats are contested have not been fully considered 
by the committee for want of time, nor will there be sufficient time at this session to 
consider them. In the opinion of your committee it would be unjust to those States 
and gentlemen to keep the latter out of their seats until such investigation can be had. 

The committee therefore report the following resolution: 

Resolved , That George Goldthwaite and Foster Blodgett be permitted to take seats in 
this body upon taking the proper oath; and that the Committee on Privileges and Elec¬ 
tions proceed hereafter to consider the grounds on which their rights to seats, respect¬ 
ively, are contested, and hereafter make reports to the Senate thereon. 

WM. M. STEWART. 

O. P. MORTON. 

H. HAMLIN. 

B. F. RICE. 

We concur in the foregoing as to Goldthwaite, but not as to Blodgett. 

JOSHUA HILL. 

A. G. THURMAN. 

Tuesday, March 21, 1871. 

Mr. Hill presented the memorial f of John E. Bryant, of Georgia, remonstrating 
against the admission of Foster Blodgett to a seat in the Senate as a Senator from the 
State of Georgia. 

Ordered , That it lie on the table and be printed. 


Wednesday, March 22, 1871. 

On motion by Mr. Stewart, the Senate proceeded to consider the resolution reported 
by the Committee on Privileges and Elections to admit George Goldthwaite and Foster 
Blodgett to seats in the Senate of the United States as Senators, respectively, from the 
States of Alabama and Georgia; when 


* Found in Senate Miscellaneous, 1st sess. 42d Cong., No. 24. 
f Found in Senate Miscellaneoua, 1st sess. 42d Cong., No. 30. 




NORWOOD VS. BLODGETT. 


391 


Mr. Thurman called for a division of the question, so that it shall be taken first upon 
the admission of George Goldthwaite to his seat in the Senate as a Senator from the 
State of Alabama. 

Pending debate, 

Ordered, That the further consideration of the said resolution be postponed to to-mor¬ 
row. 

[The debate is found on pages 218, 219 of the Congressional Globe, part 1, 1st sess. 
42dCong.] 


Saturday, March 25,1871. 

On motion by Mr. Stewart, the Senate resumed, &c. 

[The debate is found on pages 271-274 of the Congressional Globe, part 1, 1st sess. 
42d Cong. ] 


Thursday, April 6, 1871. 

On motion by Mr. Stewart, the Senate resumed the consideration of the resolution re¬ 
ported by the Committee on Privileges and Elections to permit George Goldthwaite and 
Foster Blodgett to take seats in the Senate of the United States, upon taking the proper 
oaths, as Senators, respectively, from the States of Alabama and Georgia; and 

A division of the question having heretofore been called for by Mr. Thurman, so that a 
separate vote be taken on the admission of each person named in the resolution, 

The Vice-President decided that the question on the resolution was not susceptible of 
a division, as desired by Mr. Thurman, but that the end desired by him could be 
attained by amendment. 

On motion by Mr. Hill to amend the resolution by striking out the words “and 
Foster Blodgett,” 

After debate, 

Ordered , That the further consideration of the resolution be postponed to to-morrow. 

[The debate is found on pages 494-498 of the Congressional Globe, part 1,1st sess. 42d 
Cong.] 

* * * * * * * 

On motion by Mr. Stewart, the Senate resumed the consideration of the resolution re¬ 
ported by the Committee on Privileges and Elections to permit George Goldthwaite and 
Foster Blodgett to take seats in the Senate of the United States, upon taking the proper 
oaths, as Senators, respectively, from the States of Alabama and Georgia. 

On motion by Mr. Edmunds, the Senate proceeded to the consideration of executive 
business. 

[The debate is found on pages 506, 507 of the Congressional Globe, part 1, 1st sess. 
42d Cong.] 


Friday, April 7, 1871. 

The Senate resumed the consideration of the resolution reported by the Committee 
on Privileges and Elections to permit George Goldthwaite and Foster Blodgett to take 
seats in the Senate of the United States, upon taking the proper oaths, as Senators, re¬ 
spectively, from the States of Alabama and Georgia; and 

The question being on the amendment proposed by Mr. Hill, 

On motion by Mr. Anthony, and by unanimous consent, the further consideration was 
informally passed over. 

* * * * * * * 

The Senate then again resumed the consideration of the resolution reported by the 
Committee on Privileges and Elections to permit George Goldthwaite and Foster Blod¬ 
gett to take seats in the Senate of the United States, upon taking the proper oaths, as 
Senators, respectively, from the States of Alabama and Georgia; and 

The question being on the amendment proposed by Mr. Hill to the resolution to strike 
out the words “and Foster Blodgett,” 

On motion by Mr. Edmunds, the Senate proceeded to the consideration of executive 
business. 

[No debate took place.] 


Monday, April 10, 1871. 

The Senate resumed the consideration of the resolution reported by the Committee 
on Privileges and Elections to permit George Goldthwaite and Foster Blodgett to take 
seats in the Senate of the United States, upon taking the proper oaths, as Senators, re¬ 
spectively, from the States of Alabama and Georgia; and 

The question being on the amendment proposed by Mr, Hill to the resolution to 
8trike out the words “ and Foster Blodgett,” 

After debate, 


392 


SENATE ELECTION CASES. 


On motion by Mr. Edmunds that the resolution lie on the table, it was determined 
in the negative—yeas 25, nays 26. 

On motion by Mr. Stewart, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Ames, Anthony, Boreman, Bucking¬ 
ham, Carpenter, Chandler, Cole, Conkling, Corbett, Edmunds, Ferry of Michigan, Fre- 
linghuysen, Harlan, Hill, Hitchcock, Howe, Morrill of Vermont, Patterson, Pratt, Saw¬ 
yer, Scott, Sherman, Tipton, Trumbull, and Windom. 

Those who voted in the negative are Messrs. Bayard, Brownlow, Cameron, Casserly, 
Clayton, Cooper, Cragin, Davis, Gilbert, Hamlin, Johnston, Kelly, Morton, Nye, Osborn, 
Ramsey, Saulsbury, Schurz, Spencer, Stevenson, Stewart, Stockton, Sumner, Thurman, 
West, and Wright. 

So the motion to lay the resolution on the table was not agreed to; and 

Pending further debate, 

Mr. Thurman raised a question of order, viz: That in discussing the question before 
the Senate debate upon the question whether Foster Blodgett or Joshua Hill had or 
had not committed perjury was not in order. 

The Vice-President sustained the point of order raised by Mr. Thurman, and ruled 
the debate on that question out of order; and 

After further debate, 

On motion by Mr. Trumbull (at 5 o’clock p. m.), the Senate adjourned. 

[The debate, which was wholly on the credentials of Mr. Blodgett, is found on pages 
540-558 of the Congressional Globe, part 1, 1st sess. 42d Cong.] 

Tuesday, April 11, 1871. 

The Senate resumed the consideration of the resolution reported by the Committee 
on Privileges and Elections, to permit George Goldthwaite and Foster Blodgett to take 
seats in the Senate of the United States, upon taking the proper oaths, as Senators, re¬ 
spectively, from the States of Alabama and Georgia; and 

The question being on the amendment proposed by Mr. Hill to the resolution to strike 
out the words “ and Foster Blodgett,” 

On motion by Mr. Edmunds that the resolution lie on the table, it was determined in 
the affirmative—yeas 19, nays 17. 

On motion by Mr. Robertson, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Ames, Anthony, Boreman, Carpenter, 
Chandler, Cole, Conkling, Davis of West Virginia, Edmunds, Harlan, Hill, Kelly, Mor¬ 
rill of Maine, Pratt, Scott, Sherman, Tipton, Wilson, and Wright. 

Those who voted in the negative are Messrs. Bayard, Blair, Casserly, Cooper, Davis of 
Kentucky, Gilbert, Hamilton of Maryland, Hamlin, Johnston, Morton, Rice, Robertson, 
Saulsbury, Schurz, Stevenson, Stockton, and Vickers. 

So the resolution was ordered to lie on the table. 

[No debate took place.] 


[Second session of the Forty-second Congress.] 

Monday, December 4,1871. 

Mr. Thurman presented the credentials of Thomas M . Norwood, elected a Senator by 
the general assembly of the State of Georgia for the term of six years commencing March 
4, 1871; which were read. 

Ordered , That they lie on the table. 


Monday, December 11, 1871. 

On motion by Mr. Thurman, 

Ordered , That the credentials of Thomas M. Norwood, claiming a seat in the Senate 
as a Senator from the State of Georgia, be referred to the Committee on Privileges and 
Elections. 


Monday, December 18, 1871. 

Mr. Carpenter, from the Committee on Privileges and Elections, to whom were re¬ 
ferred the credentials of Thomas M. Norwood, claiming a seat in the Senate as a Senator 
from the State of Georgia, submitted a report (No. 10) thereon, accompanied by the fol¬ 
lowing resolution. (Resolution found at end of report.) 


NORWOOD VS. BLODGETT. 


393 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Morton (chairman), Rice, Carpenter, Logan, Hill, 
Thurman, and Anthony.] 

In the Senate of the United States. 

December 18,1871.—Ordered to be printed. 

Mr. Carpenter, from the Committee on Privileges and Elections, submitted the fol¬ 
lowing report: 

The Committee on Privileges and Elections, to whom were referred the credentials ol 
Foster Blodgett and Thomas M. Norwood, each claiming a seat as Senator from the State 
of Georgia for the term which commenced March 4, 1871, respectlully submit the fol¬ 
lowing report: 

The Senate being a branch of the Government of the United States, the right to elect 
a Senator is conferred and its exercise regulated by the Constitution of the United 
States, and no law or regulation of a State touching such election has any validity 
beyond the authority conferred upon the State by the Constitution of the United States. 

The Constitution, Article I, section 3, provides that Senators shall be chosen by the 
legislatures of the respective States. Section 4 of the same article provides: 

‘ ‘ The times, places, and manner of holding elections for Senators and Representatives 
shall be prescribed in each State by the legislature thereof; but the Congress may at 
any time, by law, make or alter such regulations, except as to the places of choosing; 
Senators. ’ ’ 

The first clause of this section commits to the legislatures of the States primarily 
the whole subject of electing Senators and Representatives, and authorizes themtomakt 
such regulations upon the subject as they may deem proper. The phrase “ the times, 
places, and manner of holding such elections for Senators and Representatives ’ ’ em¬ 
braces the whole subject of election of Senator except that the election must be made 
by the legislature of the State, as provided in the third section. The legislature maj 
therefore provide that a Senator shall be elected by the legislature to be chosen nexl 
before the expiration of a term or next after its commencement. The second clause, 
quoted from the fourth section, confers upon Congress the same power and absolute con 
trol over the subject, to be exercised in the discretion of Congress, except that Congress 
cannot fix a place for holding the election different from that fixed by the State legisla¬ 
ture. 

J n the exercise of this undoubted constitutional power Congress passed an act regu 
latvng the election of Senators, approved July 25, 1866 (14 Stat. at Large, page 243), 
which provides: 

“The legislature of each State which shall be chosen next preceding the expiration ol 
the time for which any Senator was elected to represent said State in Congress shall, on 
the second Tuesday after the meeting and organization thereof, proceed to elect a Sena¬ 
tor in Congress in place of such Senator so going out of office. ’ ’ 

Foster Blodgett claims to have been elected on the 15th day of February, A. D. 1870, 
by the legislature then existing and in session. He received the requisite number of 
votes, and his credentials are in due form. The question, therefore, is whether it was 
competent for that legislature to elect a Senator to serve during the term before men¬ 
tioned. If this question can be answered in the affirmative, Mr. Blodgett is entitled to 
the seat; if not, his pretended election was an absolute nullity. The answer to this 
question depends upon the true construction of the act of Congress before quoted. It 
is claimed by Mr. Blodgett that chosen and elected mean different things; that legisla¬ 
tors are elected by the people, but that legislators are not the legislature, and that the 
legislature is not chosen until the members elected assemble as provided by law and 
organize as a legislature by determining what persons elected or claiming to be elected 
are entitled to seats. That is, the people elect the legislators, and the legislators after 
their election choose the legislature, and hence the legislature which was in fact organ¬ 
ized next preceding the expiration of the term of office is the one authorized to elect a 
successor without regard to the time when the members of such legislature were elected 
by the people. 

This refinement of reasoning does not meet the approbation of your committee. The 
question is, what was the intention of Congress in passing this act ? The legislature 
designated by the act is the one “which shall be chosen next preceding the expiration 
of the time, ’ 1 &c. There is no such thing as choosing a legislature except by choosing 
its members. The Constitution declares that Senators shall be elected by the legislature 
of each State. Hence the act of Congress employs the same phrase. But your committee 
cannot doubt that it was the intention of Congress to provide that the legislature whose 
members should be elected next preceding the expiration of the Senatorial term should 


394 


SENATE ELECTION CASES. 


elect the successor. The distinction sought to be established between the words elected 
and chosen derives no support from popular or legal lexicography. Elected is defined 
chosen and chosen is defined elected , and the words are used as synonymous in the Con¬ 
stitution of the United States, the constitution of every State, in all our statutes, and 
in all popular literature. It is a universal rule of construction, applicable to constitu¬ 
tions and statutes, that words are to be understood in their popular, commonly received 
meaning, and to force upon this statute so unnatural a construction would defeat the 
intention of Congress, manifest in the act itself, and violate the fundamental princi¬ 
ple of free governm»ent which doubtless inspired the passage of the act. 

The legislature which was in session on the 15th day of February, 1870, when Mr. 
Blodgett claims to have been elected, was chosen in April, 1868. By the constitution 
and laws of Georgia then in force it was provided that another legislature should be 
elected on Tuesday after the fiist Monday in November, 1870, and that the legislature 
so to be elected should meet and organize on the second Wednesday in January, 1871. 
Thus it will be seen that at the time Mr. Blodgett claims to have been elected there was 
to be another legislature elected and organized prior to the expiration of the term for 
which Mr. Blodgett claims to have been elected to serve. Therefore, as the case then 
stood, the action of that legislature in the premises was without authority and directly 
in contravention of the act of Congress upon that subject. It is not claimed that Mr. 
Blodgett was elected at any other time or by any other legislature. The validity of his 
election must depend upon the state of case then existing. If the legislature had no 
authority to elect him at that time, their pretending to do so conferred upon him no right 
to claim this seat. I f he has any rights they vested by that election, and were perfect 
as soon as the election was completed. His election was either valid or void; if valid, 
no subsequent action of the legislature could impair his rights; if void, no subsequent 
action of the legislature, short of another election, could entitle him to this seat. 

Subsequently to Mr. Blodgett’s pretended election the legislature provided by law, as 
it was authorized to do by the constitution of the State, that the legislature which was 
to be elected in November, 1870, and organized in January, 1871, as required by law at 
the time of Blodgett’s pretended election, should not be elected until December, 1870, 
and should not convene and organize until November, 1871. But if your committee are 
right in their construction of the act of Congress, the legislature which convened in No¬ 
vember, 1871, was the legislature chosen next preceding the expiration of the Senatorial 
term, and, consequently, that legislature was the one which was authorized to elect the 
successor; and this legislature did, in fact, elect Mr. Norwood. The fact that the State 
for months after the expiration of the former term, March 4,1871, was without full rep¬ 
resentation in the Senate is not the fault of the act of Congress. The legislature author¬ 
ized under the act of Congress to make this election would have been elected in November, 
1870, and convened in January, 1871, and might have elected a Senator prior to the 
expiration of the former term but for the action of the State in postponing the election 
and organization of the legislature authorized to elect the successor. The State cannot 
complain of its own act, nor ask the Senate to disregard the act of Congress, because the 
State has intentionally omitted to comply with the aet of Congress and avail itself of its 
provisions. 

Therefore, Mr. Norwood having been duly elected at the first session of the legislature 
which was chosen prior to the expiration of the former term, your committee respectfully 
recommend the adoption of the following resolution: 

Resolved , That Thomas M. Norwood is entitled to a seat in the Senate as a Senator 
from the State of Georgia for the term commencing March 4, 1871, and that he be ad¬ 
mitted to the same. 

Tuesday, December 19, 1871. 

The Senate proceeded to consider the resolution reported from the Committee on the 
Judiciary, to admit Thomas M. Norwood to a seat in the Senate as a Senator from the 
State of Georgia; and, 

On the question to agree thereto, it was determined in the affirmative. 

So it was 

Resolved , That Thomas M. Norwood is entitled to a seat in the Senate, as a Senator 
from the State of Georgia, for the term commencing March 4, 1871, and that he be ad¬ 
mitted to the same. 

Whereupon 

Mr. Norwood appeared, and the oaths prescribed by law having been administered to 
him by the Vice-President, he took his seat in the Senate. 

COMPENSATION OF ME. BLODGETT. 

Mr. Morton submitted the following resolution for consideration: 

11 Resolved, That the Secretary of the Senate be directed to pay, out of the pay and 
mileage account, to Foster Blodgett, claiming a seat as Senator-elect from the State of 


NORWOOD VS. BLODGETT. 395 

Georgia, the pay and mileage of a Senator, commencing March 4,1871, to the passage of 
this resolution.” 


TUESDAY, January 9, 1872. 

On motion by Mr. Morton that the Senate proceed to the consideration of the resolu¬ 
tion submitted by him on the 19th December last, to pay Foster Blodgett the pay and 
mileage of a Senator for the period therein named, it was determined in the affirmative; 
and 

Mr. Morton having modified the said resolution, 

After debate, 

On the question to agree to the resolution, in the following words: 

“ Resolved, That the Secretary of the Senate be directed to pay, out of the pay and 
mileage account, to Foster Blodgett, claiming a seat as Senator-elect from the State of 
Georgia, the pay and mileage of a Senator from March 4, 1871, to the 19th of December, 
1871, when the question of his right to his seat was determined by the Senate,” 

It was determined in the affirmative. 

So the resolution as modified was agreed to. 


396 


SENATE ELECTION CASES, 


[Forty-second Congress—Second session. ] 

MATT W. RANSOM vs. JOSEPH 0. ABBOTT, 
of North Carolina. 

Mr. Abbott’s term expired March 3,1871. March 7, a memorial of Mr. Abbott was presented, claim 
ing that he had been legally elected for the succeeding term. March 13, the memorial was referred 
to the Committee on Privileges and Elections. February 28,1872, the committee reported as follows: 
At the election held in November, 1870, Zebulon B. Vance received “ a majority of the whole num¬ 
ber of votes cast in each house,” and Mr. Abbott received the next highest number of votes. On the 
day following the election Mr. Vance was declared duly elected. Mr. Vance at the date of the elec¬ 
tion was under the political disabilities imposed by the fourteenth amendment of the Constitution. 
Mr. Abbott rested his claim on what he assumed to be the legal result of the conceded ineligibility 
of Mr. Vance. He assumed that it was a conclusion of law that if the candidate receiving the highest 
number of votes was ineligible, and that ineligibility was known to the electors, the votes so cast for 
him were void, and should be considered mere nullities, and, consequently, that the candidate re¬ 
ceiving the next highest number of votes was elected. The committee were of opinion that, while 
that might be the English rule, it was directly at variance with our theory of government; and that 
the English rule was not applicable in this case for the reason also that the amendment imposing 
the disabilities also provided for the removal of them by Congress, and that consequently the elec¬ 
tion of Mr. Vance was not void but voidable only; that the removals of these disabilities after election 
in several previous cases by acts of Congress were decisions that such votes were not mere nullities. 
The committee were furthermore of opinion that the facts in this case would not bring it within the 
English rule, supposing it to be admitted that that rule was applicable here. The committee recom¬ 
mended the adoption of a resolution that Mr. Abbott, not having received a majority of the votes 
cast, was not entitled to a seat. There was a minority report in support of Mr. Abbott’s claim. 
April 23,1872, the Senate agreed to the resolution reported by the committee. 

The credentials of Mr. Vance were not presented, and no claim was made to the seat by him. 

February 5,1872, pending the action of the committee on Mr. Abbott’s memorial, the credentials of 
Mr. Ransom were presented and referred to the committee. They certified that he had been elected 
January 30,1872, to fill a vacancy existing by reason of the resignation of Zebulon B. Vance. April 
24, the day after the Senate resolved that Mr. Abbott was not entitled to the seat, the committee 
reported that Mr. Ransom’s credentials appeared to be in due form, and recommended that he be 
admitted to his seat. He was admitted the same day. 

The Senate resolved that Mr. Abbott be allowed compensation, and that Mr. Ransom’s pay com¬ 
mence on the first day of the term.* 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journals, 42d Cong., 1st and 2d sess., and the report of the committee from Senate 
Reports, 2d sess. 42d Cong., No. 58. 

Special references to the debates of each day, which are found in the Congressional Globe, 2d sess. 
42d Cong., part 3,and in the Appendix,are inserted below. 


[First session of the Forty-second Congress.] 

Tuesday, March 7, 1871. 

Mr. Pool presented the memorial f of Joseph C. Abbott, claiming to have been legally 
elected a Senator of the United States by the legislature of the State of North Carolina 
for the term of six years commencing on the 4th day of March, 1871. 

Ordered , That it lie on the table and be printed. 

Monday, March 13, 1871. 

On motion by Mr. Pool, 

Ordered , That the memorial of Joseph C. Abbott, claiming to be duly elected a Sena¬ 
tor of the United States by the legal votes of the members of the legislature of the State 
of North Carolina, for the term of six years commencing on the 4th day of March, 1871, 
be referred to the Committee on Privileges and Elections. 


[Second session of the Forty-second Congress.] 

Wednesday, February 28, 1872. 

Mr. Logan, from the Committee on Privileges and Elections, to whom was referred 
the memorial of Joseph C. Abbott, claiming a seat in the Senate as a Senator from the 
State of North Carolina, submitted a report (No. 58), accompanied by the following 
resolution: 

“ Resolved , That Joseph C. Abbott, not having received a majority of the votes cast by 

* The Senate passed a similar resolution June 8,1872, in regard to the pay of George Vickers of 
Maryland, who was elected March 7,1868, for the term beginning March 4,1867. Philip F. Thomas 
hod been elected for this term and was not admitted. For report on Mr. Vickers’s nav see renorl 
No.231,42d Cong., 2d sess. v p 

tThe memorial is found in Senate Miscellaneous, 1st sess. 42d Cong., No. 1. 





RANSOM VS. ABBOTT. 


397 


the North Carolina legislature on the second Tuesday in November, 1870, for the office 
of Senator of the United States, is not entitled to a seat in said United States Senate as 
such Senator. ’ ’ 

Mr. Carpenter asked and obtained leave to present the views of the minority of the 
committee on the memorial of Mr. Abbott; w hich were ordered to be printed, to accom¬ 
pany the foregoing report. 


REPORT OF COMMITTEE, AND VIEWS OF MINORITY. 


In the Senate of the United States. 

February 28, 1872.—Ordered to be printed. 

Mr. Logan, from the Committee on Privileges and Elections, submitted the following 
report: 

The Committee on Privileges and Elections, to whom was referred the memorial of 
Joseph C. Abbott, claiming to be entitled to a seat in this body as a Senator from North 
Carolina, for the term commencing on the 4th day of March, A. D. 1871, respectfully 
submit the following report: 

Article I, section 5, of the Constitution of the United States provides that— 

“Each House shall be the judge Of the elections, returns, and qualifications of its own 
members.” 

The duty which devolves upon the Senate in deciding cases that arise under this clause 
of the Constitution is in the nature of a judicial proceeding, and the cases must be decided 
upon the evidence presented, and in accordance with legal principles, as established by 
former parliamentary and judicial precedents and decisions. 

The only evidence which is before the committee in relation to the claim of the me¬ 
morialist Abbott to a seat in the Senate of the United States is as follows: 

That, on the second 'Tuesday of November, 1870, the day prescribed by law, the two 
houses of the legislature of North Carolina proceeded to the election of a Senator from 
that State for the term of six years commencing on the 4th day of March, 1871, with 
the following results: 

In the house of representatives: 

Votes. 

Zebulon B. Vance received- 63 

Joseph C. Abbott received_ 32 

Scattering_ 10 


Members present-105 

In the senate: 

Zebulon B. Vance received_ 32 

Joseph C. Abbott received_ 11 

Scattering- 5 


Members present- 48 

That the number of members present at the time and so voting constituted a quorum of 
each house of the legislature; the constitution of North Carolina providing that “neither 
house shall proceed upon public business unless a majority of all the members are actually 
present,” the numbers so present amounting to a majority of all the members. 

On the following day the two houses, in the usual form, declared that Vance had re¬ 
ceived a majority of the votes cast in both houses, and that he was duly elected as such 
Senator for said term of six years commencing on the 4th day of March, 1871. 

It is also further in evidence that said Vance was not on said second Tuesday of No¬ 
vember, 1870, and at no time since has been, qualified to serve as such Senator, owing to 
disability imposed by the fourteenth article of amendment of the Constitution. 

It is averred that the members of the legislature of North Carolina so voting for Vance, 
at the time their votes were cast, had notice of the ineligibility of Vance, but no evidence 
on this point has been presented to the committee, the memorialist relying upon the 
assumption that this was a matter of public notoriety. 

It appears, therefore, that Abbott rests his claim to the seat solely upon what he 
assumes to be the legal result of the conceded ineligibility of Vance, who, although re¬ 
ceiving a majority of the votes, is not entitled to take the oath of office or hold the seat. 
He assumes that it is a conclusion of law that if the candidate who has received the highest 
number of votes is ineligible, and that ineligibility was known to those who voted for 
him before casting their votes, that the votes so cast for him are void, and should be 










398 


SENATE ELECTION CASES. 


considered as nullities, and as though they never had been cast; and, consequently, tne 
candidate receiving the next highest number of votes is elected. 

In support of this view of the case the memorialist has called the attention of the com¬ 
mittee to a large number of English authorities hearing on this question. While the 
committee make no question as to the general tenor of the decisions to which attention 
has been called, yet it is evident that these are based upon a very different rule from 
that adopted in our country. To show that this rule is different, the committee would 
refer to the following authorities, which are cited in the very able report of Mr. Dawes 
from the Committee on Elections, in the case of Smith vs. J. Y. Brown (Report of Com¬ 
mittees, No. 11, 2d sess. 40th Cong.). 

Haywood on County Elections, 535: 

“ If, before the election comes on, or a majority has polled, sufficient notice has been 
publicly given of his ineligibility, the unsuccessful candidate next to him on the poll 
must ultimately be the sitting member.” 

Male on Elections, 336: 

“If an election is made of a person or persons ineligible, such election is void, where 
the ineligibility is clear and pointed out to the electors at the poll. ’ ’ 

In the case of King vs. Hawkins (10 East., 210), Lord Ellenborough states that such is 
the law in England, ‘ ‘ after notice of ineligibility. ’ 1 

In the case of Claridge vs. Evelyn (5 B. and A., 8), Abbott, C. J., remarks: 

‘ ‘ I am of the opinion, therefore, that he (the infant) was ineligible, and due notice of 
his incapacity having been given to the electors at the time of the election, their votes 
are thrown away.” 

Clerke on Election Committees, 156: 

‘ ‘ Whenever a candidate is disqualified from sitting in Parliament, and notice thereof 
is publicly given to the electors, all votes given to such disqualified candidate will be 
considered as thrown away. ’ ’ 

This notice, in order to bring the case within the rule, was required to be strictly 
formal, and was generally given at the polls. And the reason for this is apparent, as by 
their theory a voter who, after due notice of the ineligibility of a candidate, persisted in 
voting for him, was deemed guilty of a crime. Therefore, as all crimes are committed 
with an intention to commit the offense, it was necessary that the knowledge of the fact 
by the voter should be clear. 

Roe on Elections, 256: 

“It will be seen that the latter proposition is that which constitutes the law in cases 
where misapplication of the franchise by the electors was willful, and therefore made in 
their own wrong.” 

But is such a principle applicable in a government based upon the theory that the 
power emanates from the people ? In the British Government the case is exactly the 
reverse, as there the theory is that the power originates with the monarch, and the privi¬ 
leges allowed the people to select representatives are, under that theory, considered as con¬ 
ceded and not as inherent rights. But this Government rests upon an entirely different 
basis. Here the power originates with the people, and that which the Government is au¬ 
thorized to exercise is conceded by the people. The right to designate who shall exercise 
this power has never been delegated. The method by which this choice shall be made 
known consistent with this theory can never be otherwise than by giving the majority 
or plurality the right to decide. Any attempt to restrict the right of the voter is an 
attempt to invade that right; therefore the theory that casting a vote knowingly for an 
ineligible candidate is in the nature of a crime which may be punished by ignoring 
the act of the majority and recognizing the act of the minority is in direct conflict with 
that most sacred right which the people of this Government have always guarded with 
jealous care. Such a rule is consistent with the theory of the British Government, as it 
affords one means of preventing the power from passing into the hands of the people; 
but it is directly at variance with the theory of our Government, as it affords one means 
by which that right which the people have of selecting their representatives may be 
abridged. 

While, therefore, the general tenor of the English authorities to which he refers us is 
admitted to be as claimed by the memorialist, yet we do not conceive such a rule to be 
applicable to and consistent with the political institutions of the United States, where 
the right of the majority to govern and the Government is based upon the consent of 
the governed is one of the first political lessons to be learned. 

There is also another very strong reason why the English authorities relied upon by 
the memorialist are not applicable in the present case, even if the spirit and funda¬ 
mental idea of our institutions were insufficient to show this. 

The third section of the fourteenth amendment of the Constitution, which imposes the 
disabilities in question, also contemplates and provides for the removal thereof by Con¬ 
gress. There is no such feature in the English law. The English cases are therefore 


RANSOM VS. ABBOTT. 399 

based upon a very different state of facts from those that exist in this country, and are 
not precedents for this case. 

It is difficult to conceive how the Constitution could grant authority to Congress to 
remove the disabilities under which an individual who has been elected is laboring, 
and allow him to take his seat as a member, and yet at the same time embrace the 
idea that such an election is wholly void and the votes cast for him nullities. Yet Con¬ 
gress by its action in numerous instances has given the first construction to this clause 
of the Constitution, and if the memorialist in this case shall be admitted to his seat the 
Senate will have to give the second construction. 

The English law in question does not obtain in the United States, as is clearly shown 
from the following considerations: 

First. The judicial decisions are against it, there being but one decision which sus¬ 
tains it, namely, the Indiana case of 14 Ind., page 927; while on the other hand are the 
decisions in Maine, New Jersey, Pennsylvania, Wisconsin, and California, to which your 
committee would refer, and from which the following quotations are made: 

1795. The State vs. Anderson (1 Cox, N. J. Rep., 318): 

1 ‘Anderson was elected sheriff of Hunterdon. He had not been three years a freeholder, 
and was therefore absolutely disqualified, the statute of 1788 having declared that no 
person shall hereafter be eligible to the office of sheriff in any county in this State unless 
he shall be and hath been an inhabitant thereof and possessing a freehold estate in his 
own right in fee-simple in the same county for three years previous to his election. ’ ’— 
(324.) 

Held by the court— 

‘‘ That Anderson was disqualified, but that his election was not void. The election 
of an unqualified person as sheriff is not ipso facto void; it is only voidable.—(Syllabus, 
318). Still, however, we think the election not ipso facto void.”—(Opinion, 327.) 

1849. State vs. Giles, ex rel. Dunning, &c. (1 Chand., Wis. Rep., 112): 

“ Two questions arose in this case: 

4 ‘ First. Whether the person holding the office of sheriff at the time of the adoption of 
the constitution was eligible to that office at the next ensuing election. 

‘ ‘ Second. If the then sheriff was ineligible, whether the person who at that elec¬ 
tion received the next highest number of votes could be considered as entitled to the 
office.—(13.) 

“ 4 The mere ineligibility of a person to hold a particular office, and who receives the 
greatest number of votes, such votes are not a mere nullity, but should be counted by 
the canvassers. A contestant for the same office, and receiving a lesser number of votes, 
though eligible, cannot be regarded as elected, and does not thereby become invested 
with the right to the office.’—(Syllabus, 112.) 

“ It is proper to say that we are all of the opinion that the mere ineligibility of a candi • 
date does not, as the law now is, render void the votes cast for him; that such votes should 
not be rejected, but should be counted by the canvassers, and that in the event of such 
ineligible person having the highest number of votes, the person having the next highest 
number is not thereby elected. If any public embarrassment is apprehended from this, 
such as that an office may remain indefinitely vacant by reason of a majority of the elect¬ 
ors obstinately persisting in voting for an ineligible person, it is within the undoubted 
power of the legislature to prevent it by enacting that all such votes shall be deemed 
void and not be counted.”—(Opinion, 117.) 

And this remedy is so reasonable and practical that we may well ask, if it is intended 
that the English rale shall prevail in this country, why has it not been resorted to ? Our 
answer is that such an idea is contrary to the spirit of our institutions and opposed to 
the principle that all power granted is by the consent of the governed. When we decide 
that a minority of votes may elect we strike a blow at the very heart of this republican 
principle. 

1855. 38 Maine Rep., 597: 

A majority of the votes at the election in Sagadahoc County were cast for Abel C. 
Dinslow for county commissioner. There was no such person in being. The governor 
submitted to the judges the question whether it was competent “to throw out the 
votes for Abel C. Dinslow and issue a new commission to such person who is eligible to 
said office as shall appear to have the highest number of votes?” 

The judges answered in the negative. 

They were further asked whether the office was vacant. 

The judges answered it was. 

1861. State cxrel. Off. vs. Smith (14 Wis., 497): 

“ The remaining questions are: First. Whether the defendant, being an alien and not 
a qualified elector at the time of his election, was eligible to the office. Second. If he 
was ineligible, whether the relator, who received the next highest number of votes cast 
is entitled to the office. 


400 


SENATE ELECTION CASES. 


“ Tlie last question has been already settled in this State by the case of the State vs. 
Giles (1 Chand., 112.) It was there held by the unanimous judgment of the court that 
in the absence of a statute declaring it so, the mere ineligibility of a candidate does not 
render void the votes cast for him; that such votes should not be rejected, but should 
be counted by the canvassers; and that in the event of such ineligible person having the 
highest number of votes, the person having the next highest number would not be 
thereby elected.”—(Opinion, 498.) 

1867. Commonwealth vs. Cluley (56 Penna., 270) : 

‘ 1 The votes cast at an election for a person who is disqualified from holding an office 
are not nullities. They cannot be rejected by the inspectors, or thrown out of the count 
by the return judges. The disqualified person is a person still, and every vote thrown 
for him is formal. Even in England it has been held that votes for a disqualified person 
are not lost or thrown away so as to justify the presiding officers in returning as elected 
another candidate having a less number of votes, and if they do so a quo warranto in¬ 
formation will be granted against the person so declared to be elected, on his accepting 
the office. (See Cole on Quo Warranto, 141-2; Regina vs. Hiorns, 7 Ad. & E., 960; 3 
Nev. & Perry, 184; Rex vs. Bridge, 1 M. & S., 76.) Under institutions such as ours are 
there is even greater reason for holding that a minority candidate is not entitled to the 
office if he who received the largest number is disqualified. We are not informed that 
there has been any decision strictly judicial upon the subject, but in our legislative 
bodies the question has been determined. It was determined against a minority candi¬ 
date in the legislature of Kentucky, in a case in which Mr. Clay made an elaborate re¬ 
port and was sustained. In 1793 Albert Gallatin, elected a Senator from this State, was 
declared by the Senate of the United States disqualified because he had not been a cit¬ 
izen of the United States nine years, and his election was declared void for that reason, 
but his seat was not given to his competitor. Nobody supposed the minority candidate 
was elected. There have been several other cases of contested elections in which the 
successful candidates were decided to have been disqualified, and denied their offices. 
John Bailey’s case is one of them. He was elected to Congress from Massachusetts, and 
refused his seat in 1824. But neither in his case, nor in any other with which we are 
acquainted, were the votes given to the successful candidate treated as nullities, so as 
to entitle one who had received a less number of votes to the office. There is a class of 
cases in England apparently, but not really, asserting otherwise. ”—(Opinion of the court 
by Strong, J.) 

Tins able opinion by Judge Strong, now on the Supreme Bench of the United States, 
is well worth careful consideration. Your committee would call special attention to that 
sentence where it is stated that “the disqualified person is a person still, and every vote 
thrown for him is formal. ” The act of Congress prescribing the time and manner of 
electing Senators specifies what the vote shall be for in order to make it available in the 
count; for it says “each house shall openly, by a viva voce vote of each member present, 
name one person for Senator. ’ ’ The vote must be for a person, not a blank in fact, not 
for a myth, but for a person. But if the vote is cast for a person for Senator in Congress 
from that State, this statute has been formally complied with, and no construction can 
change the fact. Yance is a person; 63 viva voce votes in the House and 32 viva voce 
votes in the Senate were given for him for Senator in Congress from North Carolina on 
the day and at the place required. Then the provisions of the act of July 25, 1866, have 
been strictly and formally complied with. What power, then, has the Senate of the 
United States, or any court, to declare these votes were never cast for a person ? For this, 
it seems to your committee, must be said before the memorialist could be entitled to the 
seat he claims. But even this conclusion must result in a decision adverse to his claim; 
for if these votes are declared nullities, then no quorum voted. (Also Saunders vs. 
Hayes, 13Col., pages 145, 156; 10 Col., Whitman vs. Maloney.) 

Secondly. The legislative decisions are against the idea that the English law obtains 
in this country. So far as any action has been taken in the Senate which bears upon the 
question, it has been decidedly against the English law. 

In the case of Mr. Gallatin, from Pennsylvania, in 1793, although deciding him to be 
ineligible and his election void, yet, by resolution, the governor of that Commonwealth 
was simply notified of this action.—(Cont. El., 3d Cong., 1st sess., page 859.) 

The case of Mr. Shields, of Illinois.—(Cont. El. Cong., from 1834 to 1865, page 606.) 

The case of Yulee vs. Mallory, of Florida, where blank votes were taken into the 
count.—(Cont. El., page 608, 32d Cong.) 

The cases of Mr. Thomas, of Maryland, and Miller, of Georgia, where the oath of office 
was modified, is a declaration on the part of the Senate of the American rule. 

In the House of Representatives the same rule has so far prevailed. 

The case of Mr. Bailey, of Massachusetts, 1824, where the candidate receiving the 
highest vote was declared ineligible, yet the votes given to him, as Judge Strong remarks 
in the case of Cluley, “were not treated as nullities.”—(Cont. El. from 1789 to 1834 naee 
254.) 


RANSOM YS. ABBOTT 


401 


The case of Smith vs. J. Y. Brown, 1868, where the present question is ably discussed 
in the report by Mr. Dawes from the Committee on Elections, and it is decided that a 
minority cannot elect.—(Cont. El. from 1865 to 1871, page 395.) 

In the case of McKee vs. J. D. Young, 1868, although the claim of the contestant was 
decided on other grounds, yet the opinion is reaffirmed that a minority cannot elect.— 
(Cont. El. from 1865 to 1871, page 422.) 

The case of Christy vs. Wimpy is of a similar character.—(Cont. El., 1865 to 1871, 
page 464.) 

Also the case of Jones vs. Mann, 1869.—(Cont. El., 1865 to 1871, page 471.) 

The case of Wallaces. Simpson, 1870, has been referred to as sustaining the English rule. 
But an examination of that case shows that it was decided on wholly different grounds. 
That the proposition ‘ ‘ that when one of two candidates is ineligible the votes given for 
him are of no effect, and the other candidate is elected, ’* was maintained by but one 
member of the subcommittee, Mr. Cessna, while it is expressly stated that the other 
two members, Mr. Hale and Mr. Randall, dissented from the proposition.—(Cont. El., 
1865 to 1871, page 731.) 

In the case of Zeigler vs. Rice, of Kentucky, 1870, it is decided that even where there 
is notice of ineligibility of the successful candidate this does not entitle the minority 
candidate to take his seat. The majority report of the committee in this case states: 

11 The committee are well satisfied that the acts of the contestee were well understood 
by the voters of said district at the time contestee was voted for, but do not agree with 
contestant that as contestee was ineligible, the candidate who was eligible is entitled to 
the seat.”—(Cont. El., 1865 to 1871, page 884.) 

The removal of disabilities by the action of Congress, of the same nature as these un¬ 
der which Vance labored, is a decision in the strongest possible terms that such votes are 
not nullities; that the election of such candidate is not void but voidable only. For 
if they were nullities, and the election of such candidate void, then Congress, by such 
action as it has taken, has elected members to one of its own houses without reference 
to the action of the people. As an example, we may refer to the case of R. R. Butler, of 
Tennessee (Contested Election Cases, 1855- , 71, page 464); also case of Young, of Georgia. 

But suppose that it is admitted that the English rule is applicable here, do the facts in 
this case bring it within that rule? Were the votes for Vance cast in willful obstinacy 
for a candidate the voters knew, or had good reason to believe, would not be entitled 
to take his seat ? The memorialist avers that the fact that Vance was known to be 
ineligible is not controverted. That his ineligibility was a matter of public notoriety in 
North Carolina is doubtless true, and that it was known to most if not all of the mem¬ 
bers of the legislature is quite probable; yet no evidence has been presented to the 
committee proving this fact, or that notice of his disqualification was given at the time 
the vote was taken. 

Let us even go one step further, and suppose that the evidence on this point was clear 
and explicit; are we not justified in believing that those who voted for Vance did so in 
good faith, believing that his disabilities would be removed after the election by the 
action of Congress, basing this presumption on the precedents which had recently been 
set in similar cases? Nor is this by any means an improbable hypothesis, but accords 
much better with the facts presented to the committee than the hypothesis that the 
votes given for Vance were cast in “willful obstinacy” for a candidate they knew 
would not be admitted to his seat. If they were given under the impression that these 
disabilities would be removed, then, although unavailing, they cannot be rejected from 
the count. And the committee would again refer to the report of the committee in the 
case of Yulee vs. Mallory, of Florida, 1852, where the following language is used which 
is applicable to this view of this case: 

“If blank votes are beyond a doubt a nullity; if the resolution is to be regarded of 
no effect, and we are brought to the question, under these circumstances, whether Mr. 
Yulee is duly elected, it seems to us difficult to maintain the affirmative of that prepo¬ 
sition upon the facts before us. If the members were misled on both these material 
points by assuming that their previous doings afforded safe and certain rules of action, 
then they were misguided by what they had a right to consider as authority, and must 
have acted under a misconception of right, which stood, as they supposed, unques¬ 
tioned. If this be so, they stand substantially in the condition of an elector who votes 
for a person disqualified, believing him to be qualified. The vote in such case, though 
unavailing, is not rejected from the count.”—(Contested Election Cases, 1864-’65, page 
610.) 

Under the English rule, it is the fact that the voters knowingly and purposely throw 
away their votes that lays the foundation for saying they assent to the election of the 
minority man. But no such purpose can be predicated of the legislature of North Car¬ 
olina. They did not know that their votes for Vance would be thrown away. They 
did not purposely throw them away, because Congress had in numerous cases previously 

S. Doc. 11-26 



402 


SENATE ELECTION CASES. 


removed disabilities of a similar character from those elected and allowed them to hold 
their offices. Nearly all of the officers elected in this State in 1868 had their disabilities 
removed by the act of June, 1868, and were allowed by virtue thereof to enter upon and 
discharge the functions of their respective offices. 

’ The same act removed the disabilities of a large number of persons elected in Alabama 
in February, 1868, and at the close of the section contains this sweeping clause: 

“And also all officers-elect at the election commenced the 4th day of February, 1868, 
in said State of Alabama, and who have not publicly declined to accept the offices to 
which they were elected. ”—(15 Stat. at Large, 366, 2.) 

These were certainly sufficient to raise in the minds of the members of the legislature 
of North Carolina who voted for Yance the belief that his disabilities would be removed 
and that he would be allowed to take his seat. In fact, they had good right to believe 
that this was the rule, and the opposite the exception, especially where the persons so 
elected were known to favor the restoration of order and obedience to law. 

Again, it may be fairly argued that the fourteenth amendment to the Constitution did 
not disqualify Yance to be elected, but only to hold the office of Senator in case his disa¬ 
bility should not be removed. Upon this interpretation his election was voidable only, 
and not void, and, as a consequence, Abbott was not elected. But even if this interpre¬ 
tation is erroneous, it is one the legislature of North Carolina might (and as nothing to 
the contrary is shown, we are to presume did) honestly entertain (especially in view of 
the action of Congress above referred to), and if they elected Yance under a mistake in 
law, his election was not void, but only voidable. 

Although the committee have referred to the decisions of the courts and legislative 
bodies of this country bearing upon this case, the tenor of which is believed to be de¬ 
cidedly adverse to the claim of the memorialist, yet this appears unnecessary, as a care¬ 
ful examination of the act of Congress of July 25, 1866 (which has already been alluded 
to on one point), when applied to the facts in this case, would seem to be an effectual 
bar to the claim of the memorialist. 

The first section of this act is as follows: 

‘ ‘ That the legislature of each State which shall be chosen next preceding the expira¬ 
tion of the time for which any Senator was elected to represent said State in Congress 
shall, on the second Tuesday after the meeting and organization thereof, proceed to 
elect a Senator in Congress, in the place of such Senator so going out of office, in the 
following manner: Each house shall openly, by a viva voce vote of each member present, 
name one person for Senator in Congress from said State, and the name of the person 
so voted for who shall have a majority of the whole number of votes cast in each house 
shall be entered on the journals of each house by the clerk or secretary thereof; but if 
either house shall fail to give such majority to any person on said day, that fact shall 
be entered on the journal. At 12 o’clock meridian of the day following that on which 
proceedings are required to take place as aforesaid the members of the two houses shall 
convene in joint assembly, and the journal of each house shall then be read, and if the 
same person shall have received a majority of all the votes in each house, such person 
shall be declared duly elected Senator to represent said State in the Congress of the 
United States; but if the same person shall not have received a majority of the votes in 
each house, or if either house shall have failed to take proceedings as required by this 
act, the joint assembly shall then proceed to choose, by a viva voce vote of each member 
present, a person for the purpose aforesaid, and a person having a majority of all the 
votes of the said joint assembly, a majority of all the members elected to both houses 
being present and voting, shall be declared duly elected; and incase no person shall 
receive such majority on the first day, the joint assembly shall meet at 12 o’clock me¬ 
ridian of each succeeding day during the session of the legislature, and take at least 
one vote until a Senator shall be elected.” 

The passage of this act was evidently intended to be an exercise of that authority 
conferred upon Congress by Article I, section 4, of the Constitution, so far as the same 
relates to the election of Senator. This section provides that— 

‘ ‘ The times, places, and manner of holding elections for Senators and Representatives 
shall be prescribed by each State by the legislature thereof; but the Congress may at 
any time by law make or alter such regulations, except as to the places of choosing 
Senators.” 

The words “such regulations” in the latter clause refer to “the times and manner of 
holding elections” in the first clause (“places” being expressly excluded); therefore, 
by virtue of this provision, Congress has power—so far as the election of Senators is 
concerned—to prescribe the times and manner of holding elections. The act of July 25 
1866, is evidently intended to do this, and therefore has taken it out of the power of the 
legislatures of the States to determine either the times or manner of holding these elec¬ 
tions so long as this act remains unrepealed. 

In regard to the time fixed there is no difference of opinion. What then is piescribed 


RANSOM VS. ABBOTT. 


403 


in regard to the manner of holding the election in the first provision of the section ? 
‘‘Each house shall openly” do what? “Name one person for Senator in Congress from 
said State.” How? “By a viva voce vote of each member present.” If we give to 
each word of this clause its full force and effect, consistent with the other portions of 
the provision, what are we to understand by “each member present?” Does it signify 
those voting only, or has it some other meaning? If we refer to the second provision of 
the section we find the words “present” and “voting” both used in the same clause, 
showing clearly that the two are intended to have different significations. But it is 
insisted that if we give this construction to the provision of the act in relation to the 
election by the two houses, it is equivalent to saying that to obtain an election every 
member present must vote, thus placing it in the power of a single member so present 
to defeat an election on that day. If, on the other hand, it only applies to those voting, 
what force and effect do we give to these words? 

It is manifest that the second provision of this section was intended to take it out of 
the power of a small majority in one house, by preventing an election, to defeat the 
election of a candidate in favor of whom there is a majority of the aggregate of the two 
houses, and as the usual method of proceeding is changed by this provision, it was neces¬ 
sary to prescribe what should constitute a quorum. A majority of all the members 
elected to both houses are required to be present to constitute this quorum, and the 
person elected is required to have a majority of all the votes of said joint assembly. 

What shall constitute a quorum in each house on the day the vote is taken separately 
is left to the constitution and laws of the State. The constitution of North Carolina 
requires a majority of each house to be present; it follows that the provisions of the two 
parts of the section are substantially the same. For upon what grounds can we suppose 
that Congress would require a majority of a quorum on the second day to elect, and not 
on the first? 

Your committee is therefore satisfied that Congress, in the passage of this act, contem¬ 
plated and intended that in the election of Senators, whether under the first or second 
provisions of this section, to be valid, it should appear that a quorum was present and 
voting. 

It is, moreover, evident from the very wording of this act that Congress did not even 
contemplate the possibility of an election by a minority under any circumstances, but 
by this act imply the opposite; for in the provision relating to the election by the two 
houses, separately, it is required that “the name of the person so voted for, who shall 
have a majority of the whole number of votes cast in each house, shall be entered on 
the journal of each house.” This language is plain and easily understood. If any 
person receives a majority of the votes cast his name is to be entered on the journal; 
nothing is said of those in the minority; no evidence is to be preserved of the fact that 
they were known in the election; nothing is required to be said about the number of 
votes that even the successful candidate receives; the simple fact that Mr. A. received 
a majority of all the votes cast is all that is required. The next day the two houses 
shall convene in joint asssembly and compare journals, and if the same name and same 
fact in regard to him is on each, he is to be declared duly elected. But if neither can¬ 
didate receives a majority the first day, the fact is to be entered on the journal; nothing 
more is required; no person has received a majority, and there is no use to preserve upon 
the record anything but that fact; yet it is possible that one out of three candidates may 
be known to be ineligible by those voting for him. If the second out of three candi¬ 
dates was disqualified, and those voting for him knew it, the case would be much more 
plausible than the present one. Yet this act contemplates no such contingency. Your 
committee is aware that this inference has no binding force; it is only alluded to to 
show that the idea of a minority candidate being entitled to his seat under any circum¬ 
stances is at war with the very spirit of our laws and institutions, and that the principle 
involved in this case is at variance with the spirit of the law upon which the memorial¬ 
ist founds his claim to a seat. 

It has been suggested that there is a distinction in respect to the operation of the rule 
insisted on by the memorialist, between a popular election, under our liberal system of 
suffrage, for a member to the House of Representatives by ballot and an election of a 
Senator by viva voce vote of the members of a legislature. 

Your committee are inclined to think this is correct, but that the distinction bears 
against the claim of the memorialist instead of in favor of it. 

The number of persons entitled to vote at a popular election is not fixed and definite, 
and hence it is impossible to have a quorum or anything answering thereto. There is 
no power to compel attendance. This is, and necessarily must be, wholly voluntary; 
therefore it is necessary that those attending should have the right to elect, where the 
election is free, and are prevented from attending by force, intimidation, or fraud. If 
a candidate receiving the majority is disqualified, and the votes cast for him are declared 
nullities (as claimed by the memorialist), the remaining votes are as effectual to elect 
as if every voter of the district had been present; and if those who voted for the can- 


404 


SENATE ELECTION CASES. 


didate receiving the majority had not been present at all, the election nevertheless 
would have been valid. But the rule is wholly different in legislative bodies. The 
number is fixed and definite, a quorum can be and is required to act, and the presence 
of a less number is not effectual. Had but the thirty-two who voted for Abbott been 
present in the house at the time the vote was cast, we do not suppose any one would 
contend that he had even a shadow to base his claim upon; yet this number would be 
sufficient to elect in a district of a thousand voters if no others voted. We therefore 
coincide in the view that there is a difference, and that, even if the English rule was ap¬ 
plicable in the case of an election of a member to the House of Representatives, it 
would by no means follow that it was applicable to the election of a Senator where the 
number voting, of the votes counted, is less than a quorum. 

Your committee, therefore, after a full hearing of the case and examination of the 
authorities, come to the conclusion that the Hon. Joseph C. Abbott, of North Carolina, 
is not entitled to a seat in the United States Senate, and recommend the adoption of the 
following resolution: 

Resolved , That Joseph C. Abbott, not having received a majority of the votes cast by 
the North Carolina legislature on the second Tuesday in November, 1870, for the office 
of Senator of the United States, is not entitled to a seat in said United States Senate as 
such Senator. 

O. P. MORTON. 

JOHN A. LQGAN. 

A. G. THURMAN. 

JOSHUA HILL. 

The following statement of Mr. Ransom, of North Carolina, is herewith presented 
with the report of your committee: 

“ Immediately after the election in North Carolina in 1870, which resulted in the tri¬ 
umph of the Democratic-Conservative party, the question of the election of a United 
States Senator became one of great, exciting interest throughout the State, and very 
soon assumed a sectional (State) character. Governor Vance, Governor Graham, and 
Judge Merrimon were the persons most prominently brought forward by the western 
gentlemen and papers. The “west” (of the State of North Carolina) insisted most 
earnestly that their section, of right, ought to have the Senator. Article after article 
was written in the western papers, claiming the Senator for the west, and there was 
great feeling on the question when, in November, 1870, the legislature met. 

“Immediately on its meeting Mr. Jarvis, an eastern member, was elected speaker of 
the house, and this event gave western gentlemen still further ground to claim the Sen¬ 
ator. Mr. Jarvis, in caucus, beat Mr. Welch and Colonel McAfee, both western gentle¬ 
men. 

‘ ‘ The Democratic caucus met. 

“Vance’s, Merrimon’s, Graham’s, Warren’s, and Ransom’s names were before the 
caucus. 

‘ ‘ The balloting at first was entirely indecisive. 

“While the Democratic strength in the legislature was from 105 to 110, only 94 mem¬ 
bers attended caucus. 

“On the eighth ballot Merrimon was ahead, receiving 35 votes; Vance and Ransom 
about 25 each, and Graham some 9 or 10. 

‘‘ Merrimon’s vote then declined and Graham’s vote went up; when Ransom’s strength 
was developed and his vote began to go up. 

“The balloting continued, and finally, Ransom being ahead, Vance’s vote went upon 
the twenty-sixth ballot, Ransom then having 42, Vance 39, about 10 for Graham, and 3 
scattering, when Graham’s friends, western men, went to Vance, and the last ballot was— 
for Vance, 48; Ransom, 46. Vance was nominated, the vote standing 48 for Vance and 
46 for Ransom. 

“After the twelfth ballot Ransom had been ahead of Vance until the twenty-sixth 
ballot, and on the twenty-seventh the Graham men went to Vance and elected him. 

“There were about 35 Democrats from east of Raleigh, and about 70 or 75 west; but 
only 94 at caucus. 

“ Vance’s great personal popularity accounts for his running ahead of Graham and 
Merrimon, both western men; and his popularity and position in the west, he living in 
the stronghold of the'western Democracy, beat Ransom. 

“Had Vance’s disability been removed he would have beaten all his opponents with¬ 
out a struggle; while it is simple candor to say that Ransom would beat any other man 
except Vance. The last election proves this. 

“Vance’s nomination was then owing to his being a western man and his great personal 
popularity, both causes contributing to his nomination; his popularity beating Graham 
and Merrimon, and his position and popularity together beating Ransom. 

“Merrimon had no disabilities. 

“Graham was laboring under disabilities. 


RANSOM VS. ABBOTT. 


,405 


“disabilities. 

“Before the caucus met, and at the caucus, it was generally stated that Vance’s disa¬ 
bilities would be removed and that he would be admitted. It was generally argued and 
believed that many influential Republicans of the North had assured Vance that his 
disabilities would be removed, and Vance himself expressed no doubt of it. His friends, 
by authority, stated in caucus that Vance would resign unless admitted. 

“removal of disabilities. 

“On the 20tli of April, 1868, an election took place in North Carolina for all the State 
officers—governor, lieutenant-governor, secretary of state, treasurer, judges of the supreme 
court, judges of the superior courts, the probate judges, members of the legislature, and 
all county officers, sheriffs, &c. 

“On the 25th June, 1868, two months after this election, Congress removed the polit¬ 
ical disabilities of most of these officers, nearly all of whom were under disability when 
elected. 

“Governor W. W. Holden and Mr. Thomas Ashe and Mr. D. R. Goodloc were the can¬ 
didates for governor—Holden, Republican; Ashe, Democrat, and Goodloe, Republican. 
Goodloe was eligible, and he received only 300 out of 170,000 votes. The fact that he 
(Goodloe) only was eligible, and the others not, was fully discussed in the papers and 
canvass. 

“On the 25th of June, as aforesaid, Todd R. Caldwell, lieutenant-governor, was also 
relieved. 

“And so were Richmond Pearson, chief-justice; Robert P. Dick, associate justice; 
Thomas Settle, associate justice; Edwin G. Read, associate justice supreme court. And 
so with many of the judges of the superior courts: Daniel L. Russell, Anderson Mitchell, 
C. R. Thomas (now member of Congress), Judge Logan, &c. 

“ The superintendent of public works, C. L. Harris; W. L. Adams, auditor of public 
accounts; Joseph W. Holden, speaker of the house of representatives, and nearly every 
white member of the legislature of 1868, which actually elected Mr. Abbott to the Senate 
when he was admitted, and, as before said, nearly if not all of the county officers in 
the State—all, all had their disabilities removed after the election. 

“And in the same act of June 25,1868, it is declared in section 2, page 581 (Congres¬ 
sional Globe, part 5, 2d sess. 40th Cong.): 

“ ‘ * * * And also all officers-elect at the election commenced the 4th day of Feb¬ 
ruary, 1868, in said State of Alabama, and who have not publicly declined to accept the 
offices to which they were elected. ’ 

‘ ‘ This is the concluding sentence after the enumeration of a long list of persons in 
Alabama. 


“GOVERNOR VANCE AND SENATOR POOL. 

“About the 4th of March, 1871, great anxiety was felt by the legislature as to Vance’s 
prospects, and Mr. Martin, member of the legislature from Carteret, introduced a reso¬ 
lution looking to Vance’s resignation and another election. There was great interest on 
this question, and a caucus of the Democrats called with a view to settle the matter, 
when, on the 17th of March, 1871, Mr. Cowles, a senator in the North Carolina legisla¬ 
ture, read from his place in the senate this letter from Hon. John Pool, now Senator in 
Congress, and this assurance quieted the legislature, and no action was taken. 

“This letter is herewith presented. 

“A. C. Cowles, esq., the senator from Yadkin County, recently wrote to Hon. John 
Pool at Washington in regard to the prospect of Governor Vance obtaining his seat, and 
received the following answer: 

“ ‘Senate Chamber, 

“ ‘ Washington City , March 17, 1871. 

“ ‘ My Dear Sir: You ask me as an old friend to tell you candidly if Governor Vance 
is likely to be relieved. The Senate committee has just reported a bill for his relief, and 
it will pass next December, if not before. In the present state of things here it may not 
be acted upon this session, as Congress refuses to take up any business except some few 
special matters. But even at this disadvantage Vance stands a good chance of being 
relieved before we adjourn. Many Senators heretofore opposed will vote for him now. 
If Congress remains in session two weeks he will be relieved at this session. The House 
would pass the bill by an immense majority. I hardly have a doubt as to his final relief 
early in the next session. 

“ ‘ I have not time to write more fully. 

“ ‘Very truly, &c., 


“‘JOHN POOL.’” 


406 


SENATE ELECTION CASES. 


VIEWS OF THE MINORITY OF THE COMMITTEE ON PRIVILEGES AND ELECTIONS. 


February 28, 1872.—Ordered to be printed. 


Mr. Carpenter asked and obtained leave of the Senate to present the following as the 
views of the minority: 

A minority of the Committee on Privileges and Elections, to whom was referred the 
memorial of Joseph C. Abbott, who claims to be entitled to a seat in this body as Sen¬ 
ator from North Carolina, for the term commencing on the 4th day of March, A. D 
1871, respectfully submit the following report: 

The gravity of the question now for the first time directly presented to the Senate, and 
the fact that the decision which shall be made in this case will be a precedent, render it 
desirable that the question should be fully considered; and believing that the conclusion 
arrived at by the committee is erroneous in law, we present to the Senate the reasons 
which have compelled us to dissent. 

The Constitution of the United States, Article I, section 5, provides: 

“Each House shall be the judge of the elections, returns, and qualifications of its 
own members.” 

The duty cast upon the Senate by this provision of the Constitution is judicial in char¬ 
acter. We may not inquire or consider what party interests demand; whether it would 
appear impartial to decide against a political friend, or whether a decision in his favor 
would be condemned in political circles. The question to be determined is one of strict 
right, depending upon legal principles, as settled by former decisions, parliamentary and 
judicial; and we have no more right than a judge upon the bench to turn away from the 
law to consider the political or partisan interests involved in the case or to be affected 
by the decision. 

The case is this: On the 4th of March, 1871, the term of service of Joseph C. Abbott 
as Senator from North Carolina expired. On the second Tuesday of its session, in No¬ 
vember, 1870, the day prescribed by law, the two houses of the legislature of North Caro¬ 
lina proceeded to the election of a Senator from that State for the succeeding term of six 
years, commencing on the 4th day of March, 1871, with the following result: 

In the house of representatives: 


Votes. 


Zebulon B. Vance received_ 63 

Joseph C. Abbott received_ 32 

Scattering_ 10 


Members present_ 105 

In the senate: 

Zebulon B. Vance received_ 32 

Joseph C. Abbott received_ 11 

Scattering_ 5 


Members present_ 48 

these numbers constituting a quorum of each house of the legislature respectively. 

On the following day the two houses, in the usual form, declared that Vance had re¬ 
ceived a majority of the votes in both houses, and was duly elected for the said term. 

Had Vance been qualified to serve, there would be no question as to his right. But 
he was disqualified by the fourteenth amendment to the Constitution of the United States, 
for the reason that he had been a member of the Congress prior to the rebellion, and, as • 
such member, had taken an oath to support the Constitution of the United States, and 
during the rebellion he had acted as colonel in the rebel army, and taken an oath of alle¬ 
giance to the so-called Confederate States of America; and he had acted as governor of 
the rebel State of North Carolina from August, 1862, to April, 1865; and this disquali¬ 
fication was notorious—known to all the members of the legislature at the time of his 
election, and to all the people of that State. The fact that Vance was known to the 
members of the legislature who voted for him for Senator to be disqualified is not contro¬ 
verted. On the contrary, General Ransom, who claims to have been subsequently 
elected, upon the resignation of Vance, was heard before your committee, and frankly 
admitted that the fact that Vance was disqualified was well known to all the members 
of both houses of the legislature at the time of his pretended election. 

It is admitted on all hands that the election which was held, as before stated, conferred 
no right upon Vance to a seat in this body; but Abbott, who was qualified, and who re¬ 
ceived the next highest number of votes cast, and a majority of all the votes cast for 
qualified candidates in both houses, insists that he was elected at said election, and is 
now entitled to the seat; and this is the question to be determined. 

The Constitution, Article I, section 4, provides: 

The times, places, and manner of holding elections for Senators and Representatives 












RANSOM VS. ABBOTT. 


407 


shall be prescribed in each State by the legislature thereof, but Congress may at any 
time, by law, make and alter such regulations, except as to the places of choosing Sen¬ 
ators. ’ ’ 

The election of Senators is thus, by the Constitution, committed to the regulation of 
the respective States, except so far as Congress, under this provision, may legislate upon 
the subject. The only act of Congress applicable is that of July 25, 1866, as follows: 

11 That the legislature of each State which shall be chosen next preceding the expira¬ 
tion of the time for which any Senator was elected to represent said State in Congress 
shall, on the second Tuesday after the meeting and organization thereof, proceed to elect 
a Senator in Congress in place of such Senator so going out of office, in the following 
manner: Each house shall openly, by a viva voce vote of each member present, name one 
person for Senator in Congress from said State, and the name of the person so voted for 
who shall have a majority of the whole number of votes cast in each house shall be en¬ 
tered on the journal of each house by the clerk or secretary thereof; but if either house 
shall fail to give such majority to any person on said day, that fact shall be entered on 
the journal. At 12 o’clock meridian of the day following that on which proceedings are 
required to take place, as aforesaid, the members of the two houses shall convene in joint 
assembly, and the journal of each house shall then be read, and if the same person shall 
have received a majority of all the votes in each house, such person shall be declared 
duly elected Senator to represent said State in the Congress of the United States; but if 
the same person shall not have received a majority of the votes cast in each house, or if 
either house shall have failed to take proceedings as required by this act, the joint 
assembly shall then proceed to choose, by a viva voce vote of each member present, a per¬ 
son lor the purpose aforesaid, and a person having a majority of all the votes of the said 
joint assembly, a majority of all the members elected to both houses being present and 
voting, shall be declared duly elected; and in case no person shall receive such majority 
on the first day, the joint assembly shall meet at 12 o’clock meridian of each succeeding 
day during the session of the legislature, and take at least one vote until a Senator shall 
be elected.”—(U. S. Laws, vol. 14, page 253.) 

This act was intended to assure the election of a Senator by the action of the two 
houses separately, or in case of a failure to elect in that mode, then by joint assembly of 
the two houses commencing on the following day and continuing day after day until a 
result should be reached. This act deserves a careful consideration, because it is insisted 
that the conclusions herein arrived at are in conflict with its provisions. In regard to 
election by the houses separately it is provided: 

‘ ‘ Each house shall openly, by a viva voce vote of each member present, name one person 
for Senator in Congress from said State, and the name of the person so voted for who shall 
have a majority of the whole number of votes cast in each house shall be entered on the 
journal of each house by the clerk or secretary thereof.” 

It will be perceived that this act does not attempt to determine what shall be a quorum 
of each house, but leaves that question to be determined by the constitution and laws of 
the State. By the constitution of North Carolina it is provided: 

“Neither house shall proceed upon public business unless a majority of all the mem¬ 
bers are actually present.” 

It is not necessary that all the members should participate in the transaction of public 
business by either house, but merely that a majority of all the members should actually 
be present in each house. But in providing for an election by the joint assembly of the 
two houses the act of Congress does provide that in such election— 

“The person having a majority of all the votes of the said joint assembly, a majority 
of all the members elected to both houses being present and voting, shall be declared duly 
elected.” 

The difference in these two provisions is not one of phraseology merely, but of sub¬ 
stance. In the election by the two houses separately in North Carolina, if a majority of 
the members elected to each house are actually present, the person who shall receive the 
highest number of votes cast, though that may be less than half of a constitutional quo¬ 
rum, is to be declared elected; but in the election by the joint assembly it is not enough 
that a candidate should receive a majority of all the votes cast, but he must receive a 
majority of “all the votes of the said joint assembly—a majority of all the members 
elected to both houses being present and voting. ” These provisions are so materially 
different that the variation cannot be regarded as accidental, and the reason for the dis¬ 
tinction is, no doubt, that the act intended to leave the matters of a quorum and the 
proceedings ol the houses acting separately to be regulated by the constitution and laws 
of the State, but the act intended to provide what should be necessary to constitute a 
quorum and make an election in the joint assembly—a body created by the act, and 
whose proceedings might not be regulated by the constitution of the State. 

It is only necessary in this case to consider the effect of the proceedings in the two 
houses on the first day, because it is upon those proceedings Mr. Abbott founds his claim. 


408 


SENATE ELECTION* CASES. 


If he was legally elected on that day the subsequent proceedings Ivy the joint assembly 
could not affect his right, nor can such claim be affected by any subsequent proceedings 
of the legislature. His claim depends upon the legal effect of what took place in the 
two houses on the first day of the election. 

It is insisted that the provisions of the act in relation to election by the two houses 
and by the joint assembly are substantially the same, because it is provided by the act 
that— 

‘ ‘ Each house shall openly, by a viva voce vote of each member present, name one person 
for Senator, &c., and the name of the person so voted for who shall have a majority of 
the whole number of votes cast in each house shall be entered on the journal,” &c. 

And hence it results that to be elected on the first day the person must have a major¬ 
ity of all the members present. But this construction, which is equivalent to saying 
that, to make an election, every member must vote, would put it in the power of a single 
member of the legislature to defeat an election on that day. This could not have been 
intended, and that clause must be regarded as relating merely to the manner of voting; 
and if a number of votes are cast for a qualified candidate, and the other members refuse 
to vote at all, then the person “who shall have a majority of the whole number of votes 
gast ’ ’ must be deemed elected. 

The provision concerning the joint assembly is materially different. There it is pro¬ 
vided: 

“The joint assembly shall then proceed to choose, by a viva voce vote of each member 
present, a person for the purpose aforesaid, and a person having a majority of all the votes 
Df the said joint assembly, a majority of all the members elected to both houses being 
present and voting, shall be declared duly elected.” 

The clause “a person having a majority of all the votes of the said joint assembly, a ma¬ 
jority of all the members elected to both houses being present and voting,” undoubtedly 
requires that to make an election a candidate must receive a number of votes greater 
than half of the majority of both houses. The difference bet ween the two provisions is 
this: if a majority or quorum of each house are actually present when each house proceeds 
to the election on the first day, the person receiving the highest number of votes cast is 
elected, though receiving less than half of a majority. But in the joint assembly it is 
necessary to an election that a candidate should receive the votes of more than half of a 
majority of both houses. 

It is a well-established rule for construing statutes that every clause, phrase, and word 
must be deemed to have been added to the statute for the purpose of accomplishing some 
end that would not be accomplished without it. 

Dwarris on Statutes (Potter’s edition, 1871), 198, says: 

“ It is a safe method of interpreting statutes to give effect to the particular words of 
the enacting clauses. For when the legislature in the same sentence uses different 
words the courts of law will presume that they were used in order to express different 
ideas. So, if there be a material alteration in the language used in the different clauses, 
it is to be inferred that the legislature knew how to use terms applicable to the subject- 
matter. ‘The several inditing and penning of the different branches,’ said the judges 
in Edrick’s case, ‘ doth argue that the maker did intend a difference of the purviews and 
remedies. ’ ’ ’ 

To the same effect, see Eex vs. Bolton (5 Barn, and Ores., 74). 

Applying this familiar precept to the statute before us, it must be held that the pro¬ 
vision in regard to an election by the joint assembly requiring a person to receive “ a 
majority of all the votes of the said joint assembly,” which is not found in the act in 
relation to an election by the two houses acting separately, was added for the purpose 
of requiring in one case what was not necessary in the other. It may be said that the 
same thing ought to be required in the one case as in the other, and that the act of 
Congress ought not to be so construed as to permit an election by the minority in one 
case and to iorbid it in the other. But the answer to this is obvious. Before the passage 
of this act the States elected Senators by various methods; some by a joint assembly of 
both houses and some by the action of the two houses separately. In those States which 
elected by the latter method the houses might sometimes disagree, and thus defeat an 
election. It was the manifest intention of the act of Congress to afford to a legislature 
the opportunity of electing a Senator by the separate action of the houses, and in doing 
60 to leave the whole detail of the election to be regulated by the parliamentary usage 
of the State. But in providing for an election by the joint assembly, a method not in 
use in some ol the States, it was necessary to provide what should be a quorum, and 
fvfiat should be necessary to an election. 

As the act of Congress does not affect the question under consideration, resort must be 
had to the precedents and authorities, English and American. 

It is admitted that when the electors vote for a disqualified candidate, in ignorance of 
his disqualification, the election is void, and must be remitted to the elective body. 


RANSOM VS. ABBOTT. 


409 


But it is insisted that where, as in this case, the electors (the members of the two houses) 
had full knowledge of the disqualification, votes cast for such person are considered as 
thrown away, and the qualified candidate receiving the next highest number of votes, 
and a majority of all votes cast for qualified candidates, is elected. If this proposition 
is well grounded, Mr. Abbott is entitled to a seat; and this is the precise question upon 
which we are to consult the authorities. 

Mr. Abbott furnished to your committee a printed brief containing references to and 
quotations frorn the decisions upon this question from the earliest times, which quota¬ 
tions are embodied in this report. 

Rogers on Elections (ed. 1847, ch. 7) says: 

“The principle upon which courts of law have acted in such cases is broad and uni¬ 
form, and is thus laid down, and the authorities all cited by Lord Ellenborough in 
pronouncing the judgment of the Court of King’s Bench in the case of Rex vs. Hawkins 
(A. D. 1808), 10 East, 211, which judgment was affirmed upon appeal to the House of 
Lords (2 Dow, 124). 

“The general proposition that votes given for a candidate after notice of his being 
ineligible are to be considered the same as if the person had not voted at all is supported 
by the cases of The Queen vs. Boscawen, E. T., 13 Anne, 1713; The King vs. Withers, E. 
T., 8 Geo. II, 1835; Taylor vs. Mayor of Bath, M., 15 Geo. II, 1742, all of which are . 
cited in Cowper, 537, in King vs. Monday (A. D. 1777). In the first, Boscawen and 
Roberts, the two candidates, had an equal number of votes, but because Boscawen was 
incapable, the votes given for him were considered as thrown away, and the other duly 
elected. In the second case, Withers had five votes out of eleven, and the other six 
refusing to vote at all, the court held Withers duly elected, and the six who refused to 
vote were virtually consenting to the election of Withers. In the third case, Taylor, 
Biggs, and Kingston were candidates. Biggs was objected to as a disqualified person, 
notwithstanding which Biggs had 14 votes, Taylor 13, and Kingston only 1. Then Lord 
Chief-Justice Lee, at nisi prius, directed the jury that if they were satisfied that the 
electors had notice of Biggs’s want of qualification they should find for the plaintiff 
(Taylor), because Biggs, not being qualified, was to be considered as a person not in 
esse, and the voting for him a mere nullity. The jury found for the plaintiff, and the 
court, on a motion for a new trial, agreed with the law as laid down by Lord Chief-Justice 
Lee, and refused a new trial. The same principle has been acted on in the case of 
Claridge vs. Evelyn (1821), 5 B. and A., 81, where an infant, having been elected to the 
office of clerk of a court of requests, notice was given at the time of his election of his 
ineligibility on the ground of nonage. An action was brought for a false return by the 
unsuccessful candidate, and a verdict given for the plaintiff, subject to the opinion of the 
Court of King’s Bench. At the close of his j udgment, after argument, Abbott, C. J., said: 
‘lam of opinion, therefore, that he (the infant) was ineligible; and due notice of his inca¬ 
pacity having been given to the electors at the time of his election, their votes were 
thrown away, and consequently there must be judgment for the plaintiff.’ (Vide also 
R. vs. Coe., Haywood on County Elections. 538; R. vs. Parry & Phillips (1787), 14 East, 
549; R. vs. Bridge (1811), 1 M. & S, 76.) 

“Fife, 1 Luders, 435 (A. D. 1785-’90): General Skene was elected. Mr. H. gave 
notice at the poll that General Skene was incapacitated by reason of holding the offices 
of baggage-master to the forces and inspector of the roads, and petitioned upon those 
objections. The committee seated Mr. Henderson, on the ground that the novel crea¬ 
tion of one of the offices was notorious and within Anne, c. 7, s. 625 (a). 

“Cockermouth (1717), 18 Journ., 673: The votes were, for Sir Wilfred Lawson 90, for 
Lord Percy Seymore 84. The former had been proved at the election to be under twenty- 
one years of age. The House seated Lord Percy Seymour. 

‘ ‘ Flintshire, 1 Peck, 526 (1802-1806): The facts and decisions the same as in the case 
of Cockermouth. 

“Second Southwark (Clifford, 130, 1796): The former committee having resolved, 
‘that at the last election for the borough of Southwark G. W. Thellusson, esq., did act 
in violation of the statute of the 7 W. Ill, c. 4. whereby he is incapacitated to serve in 
Parliament upon such election, ’ and notice having been given of this resolution, the 
petitioner was seated with a minority of votes. 

“Second Canterbury (Clifford, 353): The first committee merely declared that neither 
of the sitting members was duly elected, and that the election was void. The second 
committee found specially that the first election was declared void for bribery and cor¬ 
rupt practices only; and having heard evidence that notice was given at the election of 
the ineligibility of the sitting members on account of bribery and corrnption at the 
former election, and that copies of the opinions of three counsel, all stating that the sitting 
members were ineligible, were read, seated the petitioners with the minority of votes. 
(Kirkcudbright, 1 Luders, 72 ante, 72 et seq.; Radnorshire, 1 Peck, 496; Leominster, 1 C. 

& D., 12; and 2 Dungarvon case K. & Ambl., 6). 

“Leominster (1827), C. & D., 1: Objection made that the candidate had declined to 


SENATE ELECTION CASES. 


41Q 

take the qualification oath when requested so to do. His return declared void and the 
petitioner seated.’’ 

Haywood on County Elections, 535, says: 

“ It must be remembered, however, that in case a candidate laboring under disabili¬ 
ties should be returned, the election will be avoided on petition; and that if, before the 
election comes on, or a majority has polled, sufficient notice has been publicly given of 
his disability, the unsuccessful candidate next to him on the poll must ultimately be 
the sitting member. * * * When the disability of the candidate is notorious, it 
should seem that it was not necessary to give notice to the electors.” 

Roe on Elections (ed. 1818), page 256, says: 

“ If there be no other candidate than the person incapacitated, the election will neces¬ 
sarily be void; but if, besides such incapacitated person, there be also one or more can¬ 
didates, it is a very important question whether, in consequence of the incapacity of 
the former, the electors are to be called upon to reconsider their choice, or whether they 
are to be represented by the second in number upon the poll, he in reality being regarded 
the first by reason of the nullity of the franchise given to the other candidates. It will 
be seen that the latter proposition is that which constitutes the law in cases where 
misapplication of the franchise by the electors was willful, and therefore made in their 
own wrong.” 

Male on Elections, 336, says: 

‘ ‘ If the election is made of a person or persons ineligible, such election is void either 
in toto or of one only, according as the ineligibility applies to all or one only, where 
that ineligibility is clear and pointed out to the electors at the poll. It has been held 
that the votes given to such ineligible candidate, after notice, are thrown away, and a 
competitor, though chosen by a smaller number of electors, has in such case been held 
duly elected. 

“ But such ineligibility ought to be clear, and grounded upon some known and settled 
rule of law. The same doctrine holds at law in the election to offices in which, after 
notice of the ineligibility of any particular candidate, the votes given to him are held to 
be thrown away. ’ ’ 

Clerk on Elections, page 156, says: 

“ Whenever a candidate is disqualified from sitting in Parliament, and notice thereof 
is publicly given to the electors, all the votes given for such disqualified candidate will 
be considered as thrown away, and the other candidate, with a minority of votes, will 
be in position to claim the seat on proof of the existence of the disqualification, and that 
sufficient notice has been given of it to the electors.” 

2 Kyd on Corporations, 12, says: 

“Two requisites are necessary to make a good election: 1. A capacity in the electors. 
2. A capacity in the elected. And unless both concur the election is a nullity. With 
respect to the capacity of the electors, their right is this: They cannot say there shall 
be no election, but they are to elect; therefore, though they may vote and prefer one 
to fill an office, they cannot say such a one shall not be preferred; or by merely saying 
we dissent to every one proposed, prevent any election at all. Their rights consist in 
an affirmative, not a negative declaration. Consequently, there is no effectual means 
of voting against one man but by voting for another; and even then, if such other per¬ 
son be unqualified, and the elector has notice of his incapacity, his vote will be thrown 
away.” 

Grant on Corporations, 109, says: 

“When the ineligibility of a candidate arises from his holding or having held a public 
office, the people within the jurisdiction of such office are held in law to know and are 
chargeable with notice of such ineligibility.” 

And on page 208 he says: 

“A disqualification, patent or notorious, at once causes the votes given for the candi¬ 
date laboring under it to be thrown away. ’ ’ 

Arnold on Corporations, 141, says: 

“The general rule may be stated thus: If a candidate for an office is ineligible at the 
time of the election by reason of any disqualification, and public notice of such disquali¬ 
fication is given at the election, all votes given for that candidate after such notice are 
thrown away; and if there are other eligible candidates, the one who has the largest 
number of votes will be duly elected.”—( Vide R. vs. Hawkins, &c.) 

In King vs. Parry (in 1811), 14 East., 559, it was ruled: 

‘ ‘ When a candidate is disqualified for sitting in Parliament, and notice thereof is given 
to the electors, all votes given for such candidate will be considered thrown away, and 
the other candidate, with a mi nority of votes, will be in a position to claim the seat on 
proof of the existence of the disqualifications. ’ ’ 

In Rex vs. Blissell, upon a motion for a new trial, Lord Mansfield, interrupting coun¬ 
sel for the Crown, who was arguing that the disqualification was not notorious, said: 

“ Do you doubt that, if he is really disqualified, whether such disqualification is noto- 


RANSOM VS. ABBOTT. 


411 


rious or not, the votes given for him axe thrown away? In another jurisdiction, if the 
disqualification is notorious, it does more—it elects the other party; and of the law in 
this case you can have no doubt.”— (Vide Heywood on Elections, 533-537.) 

In confirmation of this rule, we have a decision that to vote knowingly for a disquali¬ 
fied candidate is equivalent to not voting at all. In the case of Taylor vs. Mayor of Bath, 
quoted above— 

“All the judges held that the verdict was right. They held that, as the fourteen 
electors who voted for Biggs had notice that he was not qualified, their votes were thrown 
away; that when electors vote for a person not qualified it is the same thing as if they 
had given no votes at all, in which case it was not disputed that silence was a construct¬ 
ive consent.” 

In Queen vs. Coaks (1855), 28 Eng. L. and E., 307, Lord C. J. Campbell said: 

“Now, it is the law—both the common law and parliamentary law—and it seems to 
me also common sense, that if an elector will vote for a man who he knows is ineligible, 
it is as if he did not vote at all, or voted for a non-existent person; as it has been said, 
as if he gave his vote for the man in the moon. ’ ’ 

In Oldknow vs. Wainwright (2 Burr., 1017), it was held that if a majority dissent from 
an election, but vote for nobody else, the election by the minority is good. This case 
related to an election of town clerk by mayor, aldermen, and common council. Whole 
number of electors 25, of whom, after due notice, 21 assembled. Nine electors voted for 
Seagraves, while 11, protesting against any election at that time, refused to vote. As to 
the election of Seagraves, Lord Mansfield held: 

“Whenever electors are present and do not vote at all, they virtually acquiesce in the 
election made by those who do.” 

In King vs. Monday (2 Cowp., 538), Lord Mansfield said: 

“Upon the election of a member of Parliament, or a verderor, where the electors must 
proceed to an election, because they cannot stop for that day or defer it to another time, 
there must be a candidate or candidates; and in that case there - is no way of defeating 
the election of one candidate proposed but by voting for another.” 

In Southwark (Elections, 259), it is said— 

‘ ‘ That it is willful obstinacy and misconduct in a voter to give his vote for a person 
laboring under a known incapacity.”—(See also Willcock, Cor., 215, 1827.) 

See also Regina vs. Hiomes, 3 Nevill and Perry, 48,1839; S. C., 7 Adolph, and E., 960; 
and Regina vs. Pancras, 1857, 7 Ellis and B., 954. 

In Gosling vs. Veley, decided in 1848, 7 Q. B. R., 437, Lord Dunnan, C. J., delivering 
the judgment of the court, after citing cases, said: 

“ Where an elector, before voting, receives due notice that a particular candidate is dis¬ 
qualified, and yet will do nothing but tender his vote for him, he must be taken volun¬ 
tarily to abstain from exercising his franchise; and, therefore, however strongly he may 
in fact dissent, and in however strong terms he may disclose his dissent, he must be taken 
in law to assent to the election of the opposing and qualified candidate, for he will not 
take the only course by which it can be resisted; that is, the helping to the election of 
some other person. He is present as an elector; his presence counting as such to make 
up the requisite number of electors where a certain number is necessary; but he attends 
only as an elector, to perform the duty which is cast on him by the franchise he enjoys 
as elector; he can speak only in a particular language; he can do only certain acts; any 
other language means nothing; any other act is null; his duty is to assist in making an 
election. If he dissents from the choice of A, who is qualified, he must say so by voting 
for some other also qualified; he has no right to employ his franchise merely in prevent¬ 
ing an election, and so defeating the object for which he is empowered and bound to 
attend. And this is a wise and just rule in the law. It is necessary that an election 
should be duly made, and at the lawful time; the electoral meeting is held for that pur¬ 
pose only; and but for this rule the interest of the public and the purpose of the meeting 
might both be defeated by the perverseness or corruption of electors who may seek some 
unfair advantage by postponement. If, then, the elector will not oppose the election of 
A in the only legal way, he throws away his vote by directing it where it has no legal 
force; and in so doing he voluntarily leaves unopposed, i. e., assents to the voices of the 
other electors. * * * It follows from these observations that the true ground of the 
decision is that stated by Lord Mansfield in the case first cited: * Whenever electors are 
present and do not vote at all they virtually acquiesce in the election made by those who 
do.’ * * * In case of Taylor vs. Mayor of Bath, the counsel, in argument, took the 
distinction between not voting at all and voting for the disqualified candidate. They 
admitted that silence might well be held to give consent, but that voting for the other 
candidate was an express negative; it was the only way, they said, of voting against one 
to vote for the other. But the court overruled the distinction. To vote for a person not 
qualified, they said, was the same thing as not to vote at all, which, it was admitted, 
would have been a constructive assent. It will not escape observation that, in all these 


412 


SENATE ELECTION CASES. 


cases, the law required the concurrence of a majority of the electors present to make the 
election good. In none of them could it be stated as a tenable proposition that the mi¬ 
nority could hind the majority, or make a good election against their votes. In all of 
them, too, the numerical majority were de facto opposed to the election made. Yet this 
fact was never considered as rendering the election in law other than by an actual ma¬ 
jority. ” 

Cushing’s LexParliamentaria states the rule as follows: 

“Section 111. Of elections of, and votes given for, disqualified persons. 

“175. If an election is made of a person who is ineligible, that is, incapable of being 
elected, the election of such person is absolutely void, even though he is voted for at the 
same time with others who are eligible and who are accordingly elected (see Male on 
Elections, 336) ; and this is equally true whether the disability is known to the electors 
or not; whether a majority of all the votes or a plurality only is necessary to the election; 
and whether the votes are given orally or by ballot. 

“ 176. The principle above applies equally where the constitution or law points out, 
among other eligible persons, the particular candidates to be voted for; in which case 
votes given for other persons are void. Thus the constitutions of Maine and Massachu¬ 
setts, providing that, in case of a failure to elect senators at the general election, the 
deficiency shall be supplied on the day of the meeting of the legislature by such senators 
as shall be elected and the members of the other branch from among the persons voted 
for and not elected as senators. All votes given on such occasions for any other than the 
candidate designated by law, though otherwise eligible, are thrown away. 

“ 177. In England, where a plurality only is necessary to an election, and where the 
votes are given orally, it is also held that if electors have notice of the disqualification 
of a candidate, every vote given for him afterward will be thrown away and considered 
as not having been given at all. (King vs. Monday, Cowper’s Reports, 537; Rex vs. 
Hawkins, 10 East’s Rep., 211, and ..cases there cited; 2 Dow’s Rep., 124; Claridge vs. 
Evelyn, 5 Barnewall and Aid. Rep., 81; Rexes. Coe, Hey wood on County Elections, 538; 
Douglas’s Rep., 398, n.; Rex vs. Blissell, Heywood, 537; Rex vs. Parry, 14 East, 549; 
Rex vs. Bridge, 1 Maule and Selwyn’s Rep., 76.) The effect of this rule is that not only 
will the election of a disqualified person be held void, but if such election takes place 
after notice of the disqualification is given to the electors, the candidate having the 
next highest number of votes will be elected. (Fife, 1 Luders, 455; Cockermouth, 18 
Commons Jour., 672; Flintshire, 1 Peckwell, 526; Southwark, 2 Clifford, 130; Canter¬ 
bury, 2 Clifford, 353; Kirkcudbright, 1 Luders, 72; Radnorshire, 1 Peckwell, 496; Leo¬ 
minster, Corbet, and Daniel, 1; Leominster, Rogers, App. IX; Cork County, Knapp and 
Ambler, 406; Belfast, Falconer, and Fitzherbert, 603; Rogers on Elections, 224. See 
also Male on Elections, 336; and Abington, 1 Douglas, 419.) This doctrine, however 
hard it may seem, is founded in the familiar principle that every man is bound to know 
the law with reference to any act which he undertakes to do; and consequently that 
when an elector is apprised of the fact of disqualification of a candidate, and notwith¬ 
standing gives his vote for him, the elector takes upon himself the risk of losing his 
vote, if his construction of the law turns out to be wrong. (Rogers on Elections, 226.) 

“178. In this country it is equally true that the election of a disqualified person is 
absolutely void; and in those States where a plurality elects and where the votes are 
given orally, as in England, votes given for a candidate after notice of his disqualifica¬ 
tion are thrown away, and the candidate having the next highest number of votes is 
elected. 

“179. In reference to elections by ballot, in which secrecy is the distinguishing feat¬ 
ure, and in which, consequently, neither the returning officers nor the electors them¬ 
selves are supposed to know for whom the votes are given until the result is declared, 
it seems not unreasonable to consider the votes for ineligible candidates to be thrown 
away in all cases, and the opposing candidate elected, where the electors know, or must 
be presumed to know, the disability; and in all cases where there is no such actual or 
presumed knowledge to hold the whole proceeding merely void. 

“180. In reference to elections in which an absolute majority is requisite to a choice, 
and in which, consequently, the whole number of votes received is first to be ascer¬ 
tained, votes given for ineligible persons must of course be excluded from the enumer¬ 
ation, for the reason that as the whole balloting would be void and all the votes excluded 
if they were all for such candidates, it would be preposterous to enumerate such votes 
where they constitute a part only of the votes given in. If, in consequence of such 
exclusion, the result of the election would be different from what it would otherwise 
be, the whole proceeding must perhaps be held void or valid according as the electors 
have actual or personal knowledge of the ineligibility of the persons for whom the 
excluded votes are given.” 

To the same effect see Wilson’s Digest of Parliamentary Law, pages 107-114. 

Angell and Ames on Corporations, page 98, n. 3, say: 

“If the assembly be duly convened, and the majority vote for an unqualified person, 


RANSOM VS. ABBOTT. 


413 


after notice that he is not qualified, their votes are thrown away, and the person having 
the next majority, and not appearing to be disqualified, is duly elected.’’ 

This subject has been discussed at different times in the legislature of Massachusetts, 
and it has been uniformly decided that votes given for candidates constitutionally ineli¬ 
gible should be regarded the same as blank votes. In 1843 an effort was made to change 
this parliamentary rule, and a majority of the committee submitted a report, accom¬ 
panied by a resolution, to the effect that it was ‘ ‘ not in accordance with the constitution 
and laws for the two branches of the legislature to reject in making up the count the 
ballots cast for ineligible candidates.” A minority of the committee submitted an 
adverse report, saying: 

“The fact that the votes given for ineligible candidates, when the two houses have 
met in convention for the purpose of filling vacancies in certain offices, have been rejected 
from the count, is of long standing; and that no evil has resulted from such practice is 
of itself a sufficient reason why a different rule should not be established. It is time 
enough to provide a remedy when an evil is found to exist, and not in anticipation of 
an evil. This it is believed is a safe course in all cases. * * * The practice of reject¬ 
ing blank pieces of paper, although they may have the form and shape of the actual 
votes which are cast, is believed to be uniform everywhere. The reason for the rejection 
of such paper is that it is not a voice given and numbered; that no one is designated 
who can be elected. 

‘ ‘ It is, however, no less an expression of dissatisfaction to the candidate voted for by 
other persons, on one side or the other, than it would be if it bore the name of an imag¬ 
inary being or a person ineligible. In both cases it is not a vote and should not so be 
treated. So far as precedents can be found, the practice of rejecting from the count 
votes cast for an ineligible candidate is not peculiar to the convention of the two houses 
in the Massachusetts legislature. It has obtained more or less in the House of Repre¬ 
sentatives of the United States and in the House of Commons in Great Britain. * * * 
Inasmuch as the custom has obtained, for aught that appears, from time immemorial 
to reject such votes, the undersigned take leave to submit that the proposed resolution 
of the majority of the committee is uncalled for, and that no further action be had on 
such order. ’ ’ 

The house laid the resolution of the majority on the table, thus in effect adopting the 
report of the minority.—(Cushing’s Reports of Contested Elections in Massachusetts, 
page 499.) 

The subject was again discussed, and the decision reaffirmed, that votes cast for in¬ 
eligible candidates should be thrown away. In 1849 Mr. Slade was returned as the 
duly elected representative of the town of Somerset, and his seat was contested for the 
reason, among others, that a ballot for Nathaniel Morton, of Taunton, for member of 
Congress, was thrown out by the judges of election. 

The committee, in their report declaring Mr. Slade lawfully entitled, discussed this 
question as follows: 

‘ ‘ The policy of the law requires that such a construction should be put upon all 
proceedings at elections as to make such proceedings valid rather than nugatory. An 
election is always attended with trouble, inconvenience, and expense, and should not 
be set aside for light or frivolous causes. If votes cast by mistake for persons not eli¬ 
gible are to be counted, then the intention and will of the voter is defeated; if, on the 
other hand, such votes are willfully put into the ballot-box, the person who thus votes 
indicates so clearly his disregard of the value of the elective franchise that it is only a 
deserved punishment for his delinquency to deprive his vote of all weight and influence 
at such election. By so doing a voter is not deprived of any legitimate exercise of his 
right, because he can always manifest his opposition to any one candidate by voting for 
some other.—(Rex vs. Monday, Cowper, Lord Mansfield said the only way of voting 
against one was to vote for another.) 

“Finally, it seems to the committee that there is no reason why a person who votes 
for an ineligible candidate should not be put upon the same footing with one who does 
not vote at all, as in both cases the parties show a disposition to prevent an election, 
and both of them show an unwillingness to perform their duty by aiding to promote 
those elections which are absolutely essential to the existence of the government. For 
if every voter refrained wholly from voting, or voted for an ineligible candidate, the 
result would be the same—no choice; and although it is true that no penalty is attached 
by law to a neglect of this obligation of voting, yet the obligation is not the less plain 
for that; and the committee believe it to be a duty too important to be neglected and 
too sacred to be trifled with by voting for fictitious persons or ineligible candidates. 
* * * The voter who puts into the ballot-box a blank piece of paper as clearly indi¬ 
cates his opposition to all the candidates as he who puts in a vote for an ineligible can¬ 
didate; and there seems to be no reason why the opinion of the one should not be 
entitled to consideration as well as that of the other.”—(Report agreed to April 10, 
1849. See Cushing, Reports Contested Election Cases, Mass., page 576.) 


414 


SENATE ELECTION CASES. 


In Indiana the same doctrine has been established by two decisions of the supreme 
court in the cases Gulick vs. New (14 Ind., 927) and Carson vs. McPhetridge (15 Ind., 
327). In the former case the court say: 

“It being conceded that the votes cast for Wallace were powerless and fruitless in 
effecting the main end arrived at—that is, in electing him—we are still asked to decide 
that they were so far effective as to prevent the election of any other person; that they 
were, so far as affirmative results were involved, thrown away, but that negatively they 
were operative. We are reminded that in our form of government the majority should 
rule, and that if the course indicated is not followed a majority of the voters may be 
disfranchised, their voice disregarded, and their rights trampled under foot and the 
choice of a minority listened to. True, by the constitution and laws of this State the 
voice of a majority controls our elections, but that voice must be constitutionally and 
legally expressed. 

“ Even a majority should not nullify a provision of the constitution, or be permitted 
at will to disregard the law. Iii this are the strength and beauty of our institutions. Sup¬ 
pose a majority should persist in voting for a man totally ineligible to take the office of 
sheriff; what would be the result? As he could not hold the office, either the one capable 
of holding, receiving the next highest vote, would, as contended by the appellant, be 
entitled to the office, or there would be a vacancy, as insisted by the appellee. Suppose 
the proceedings should result in creating a vacancy; then it would remain, greatly to the 
detriment of public and private interests, or it would, under the statute, have to be 
filled by the action and choice of perhaps two men, which might be, possibly, in direct 
conflict with the choice of that majority in every respect. Then, while it is true that 
the votes of a majority should rule, the tenable ground appears to be that if the majority 
should vote for one wholly incapable of taking the office, having notice of such inca¬ 
pacity, or should perversely refuse, or negligently fail to express their choice, those, 
although a minority, who should legitimately choose one eligible to the position should 
be heeded. Suppose that eight years ago, at the first election under our new constitu¬ 
tion, when nearly all the offices in the State were to be filled, a majority of the voters in 
the State, and in the several districts and counties, had voted for persons wholly ineli¬ 
gible to fill the several offices, would those offices have thereby remained vacant? Could 
that majority, by persevering in that course, have continued the anarchy which might 
have resulted from such action ? Or, rather, is it not the true theory that those who act 
in accordance with the constitution and the law should control even a majority who may 
fail so to act? Whether the same reasoning should hold good where the ineligibility 
should arise out of some cause other than a constitutional prohibition is a question we 
are not now called upon to decide. ’ ’ 

The majority of the court held that the voter must take notice of the disqualification 
of the candidate, and that votes cast for a candidate in fact disqualified must be thrown 
out, whether the voters knew of the disqualification or not. Judge Perkins dissented 
upon this point, but affirmed the general doctrine, as follows: 

“1. Where, at an election, there are opposing candidates for an office, and the candi¬ 
date receiving the highest number of votes is ineligible, but, from a fact or cause which 
the voters did not and were not bound to know, the result is a failure, and gives no 
candidate a right to the office, and should be followed by another election. 

“Probable examples, under this proposition, of cases where the voters might not have 
knowledge, viz, infancy of candidate, non-residency, want of naturalization, not of male 
sex, not of requisite degree of white blood, not in existence. This last was the fact in 
the case cited from 38 Maine R., app. There a portion of the people by mistake voted 
for a person not in being. The case of the State vs. Swearinger (12 Ga. R., 23) was a 
case of non-residency. 

“2. Where the voters at the election do know, or are legally bound to know, so that, in 
law, they are held to know of the ineligibility of a candidate, the election does not result 
in a failure; but, in such case, the eligible candidate receiving the highest number of 
votes is legally elected and entitled to the office. 

‘ ‘ Against this proposition we have not found a single authority. Those relied on as 
such by the court below were the cases in 38 Maine R. and 12 Ga., supra, and The State 
vs. Giles (1 Chand. Wis. R., 112.) 

‘ ‘ Of the case in Maine, we have said enough above. 

“ Of the cases in Georgia and Wisconsin, it may be remarked that neither of them in¬ 
volved the point now under consideration, and what is said upon it is mere dicta, and 
neither of the cases cites a single authority. 

“The point involved in the Georgia case was whether a certain corporate town in that 
State could elect to office in it a person not residing within the corporate limits, and it 
was held that it could. This closed the case. 

“The point involved in the Wisconsin case was this: The constitution, article 6, sec¬ 
tion i, provided that sheriffs should be ineligible for two years next succeeding the 


RANSOM VS. ABBOTT. 


415 


termination of their offices. A sheriff, in office at the time the constitution was adopted, 
was elected his own successor under the constitution; and it was held that he was legally 
elected; and that the disability imposed by the constitution related only to elections and 
terms held under the constitution. The decision of this point disposed of the case; and 
what is said beyond it, as in the Georgia case, if not improperly, but still is very loosely 
and carelessly said, and is not binding as authority. 

‘ 1 But while there are no authorities adverse to the second proposition above laid down, 
there is a cloud of them vindicating its correctness. As the attention of the court below 
does not appear to have been called to them, we shall here indicate where they may be 
found and examined. 

“Mr. Grant, a late accurate English writer on corporations, at page 208, says: ‘As 
has been stated, a disqualification, patent or notorious, at once causes the votes given for 
the candidate laboring under it to be thrown away; the same would probably be held to 
be the case where the electors had the means of knowledge of the candidates’ qualifica¬ 
tion, or the contrary, and might have ascertained the facts if they had pleased. ’ Numer¬ 
ous cases are cited to sustain these positions. 

“Judge Cushing, in his American work on the Law of Legislative Assemblies, at pages 
66, 67, lays down the same doctrine as deducible from the decided cases. 

‘ ‘ Where the same ineligibility of a candidate arises from his holding or having held a 
public office, the people within the jurisdiction of such office are held in law to know— 
are chargeable with notice—of such ineligibility; the votes given for such candidate are 
of no effect, and his highest eligible competitor is elected.”—(Grant on Corp., supra, 
page 107; Biddle vs. Willard, 10 Ind. R., 62, on page 68.) 

It is assumed that in general a certain number of persons less than a majority of a 
legislature, or any other legal elective body, is competent for the transaction of business. 
Speaking upon this point, Cushing’s Lex Parliamentarian section 247, says: 

“ This number may be precisely fixed in the first instance, or some proportional part 
established, leaving the particular number to be afterward ascertained, with reference to 
each assembly; and this may be done either by usage or by positive regulation; and if 
not so determined, it is supposed that a majority of the members composing the assembly 
constitute a quorum.” 

And we have before seen that, by the constitution of North Carolina, either house of 
the legislature may proceed to the transaction of public business, if a majority of the 
members-elect are present. And if a quorum are present there may be an election by 
such members as choose to vote. This point was decided in England in the case of Old- 
know vs. Wainwright (2 Burr., 1017), and in this country in Commowealth vs. Green (4 
Wharton, 531), where the court charge the jury as follows: 

‘ ‘ When there is a quorum of members present, the moderator can only notice those 
who actually vote, and not those who do not choose to exercise their privilege of voting. 

‘ Whenever, ’ says Lord Mansfield, ‘ electors are present and do not vote at all, they vir¬ 
tually acquiesce in the election of those who do. ’ And with this principle agrees one of 
the rules of the general assembly itself, which must be familiar to every member: ‘ Mem¬ 
bers (thirtieth rule) ought not, without weighty reasons, to decline voting, as this practice 
might leave the decision of very interesting questions to a small proportion of the judi¬ 
catory. Silent members, unless excused from voting, must be considered as acquiescing 
with the majority.’ 

‘ ‘ This is not only the doctrine of the common law, of the written law, as you have 
seen, but it is the doctrine of common sense; for without the benefit of this rule it would 
be almost impossible, certainly very inconvenient, to transact business in a large delib¬ 
erative assembly. * * * This, gentlemen, has been stigmatized as a technical rule 
of law, a fiction, andintendment of law. Itis sufficient for us thatit is a ruleof law. We 
must not be wiser than the law. * * * Nor can we know anything of any fancied 
equity as contradistinguished from the law. The law is the equity of the case, and it 
must be so considered under the most awful responsibility by the court and the jury. In 
my opinion, a court and a jury can never be better employed than when they are vindi¬ 
cating the safe and salutary principles of the common law.” 

To the same effect, in the act of Congress before quoted, which declares that the per¬ 
son who shall receive a “majority of all the votes cast” shall be declared elected. Does 
this rule hold good in case of votes for a disqualified candidate, as well as in the case of 
members not actually voting? The unanimous opinion of the court in the case of Tay¬ 
lor vs. Mayor of Bath, before quoted, was that— 

“When electors vote for a person not qualified, it is the same thing as if they had 
given no votes at all; in which case it ds not disputed that silence was a constructive 
consent.” 

In Regina vs. Coaks, before cited, Lord C. J. Campbell said: 

“Now, it is 1 he law, both the common law and parliamentary law, * * * that if 

an elector will vote for a man who he knows is ineligible, it is as if he did not vote at 
all” 


416 


SENATE ELECTION CASES. 


This question is also answered in the affirmative by an American work of standard 
authority, as follows: 

“After an election has been properly proposed, whoever has a majority of those who 
vote, the assembly being sufficient, is elected, although a majority of the entire assem¬ 
bly altogether abstains from voting; because their presence suffices to constitute the 
elective body, and if they neglect to vote it is their own fault, and shall not invalidate 
the act of the others, but be construed an assent to the determination of the majority 
of those who do vote. And' such an election is valid, though the majority of those 
whose presence is necessary to the assembly protest against any election at that time, 
or even the election of the individual who has the majority of votes; the only manner 
in which they can effectually prevent his election is by voting lor some other qualified 
person.”—(Angell & Ames on Corporations, ch. 4, sec. 6, and cases there cited; Brooks 
vs. Young, 12 Grattan, 303; State vs. Lehre, 7 Rich., 234; King vs. Monday, 2 Cowper, 
537; Oldknow vs. Wainwright, 2 Burr., 1017; and Crawfords. Powell, 2 Burr., 1016). 

This is also in harmony with the act of Congress before quoted. 

Inquiry has been suggested on the point whether, in the cases supposed, the person 
having the legal votes may be deemed elected, although the number of votes cast for 
him be less than the majority of a quorum. 

To what has been above stated, and which may be applied to this question, the follow¬ 
ing additional reasons may be given to show that in law there is no sufficient ground 
for this objection: 

First, in* no one of the cases cited, either in argument of counsel or opinion of the 
judge, do we find that this point has been raised or suggested, as it seems probable it would 
have been had it been valid; or, second, we find at least two cases (King vs. Blisselland 
King vs. Monday) where, if this objection had been raised and sustained, it would have 
determined the case, but the point was not made. Third, in two cases the judges inci¬ 
dentally, but unequivocally, deny the truth of this objection. 

In 14 East’s Reports, page 599, note “ d,” on the case of Taylor vs. Mayor of Bath (M. 
15, Geo. II.), it is said: 

‘ ‘ Taylor moved a mandamus to be admitted into the office of a common councilman of 
the corporation of Bath. 

“ The defendant returned non fuit electus. * * * It appeared in evidence at the 
trial that, by the charter, the election of common councilmen is to be by the mayor, re¬ 
corder, and aldermen, or the major part of them then present, and the mayor and twenty- 
seven aldermen being assembled for this purpose—Biggs had 14 votes, Taylor 13, and 
Kingston 1.” 

In 2 Cowper, 537, in reference to the above case, it is stated: 

“Twenty-eight electors assembled; 14 voted for A (Biggs), 13 for B (Taylor), and 1 
for C (Kingston). A was unqualified, and his incapacity known to the electors at the 
time. ’ ’ 

Lee, chief-justice, in his directions to the jury said: 

“ That the votes given to A, with notice of his incapacity, were thrown away.” 

It afterwards came before the court (on motion for new trial), when Lee, C. J., compared 
it to voting for a dead man, and held that B, who had the 13 votes, was duly elected. 
And Justice Page (one of the court) said: 

That in such a case a minority of 2 only would have been sufficient to elect the 
other candidate. ’ ’ 

And this where the “majority of a quorum ” was 8. 

The case of King vs. Blissell was a motion for a new trial on an information in the 
nature of a quo warranto against the defendant for acting as alderman at Portsmouth, 
and a verdict had been given for the Crown on two material issues. Pike and Blissell 
were adverse candidates. At the election the mayor only voted for Blissell, while three 
aldermen voted for Pike; but the mayor gave notice to the aldermen that Pike was inca¬ 
pacitated to be elected because he held the office of chamberlain, which was incompatible. 
Lord Mansfield, addressing the counsel for the Crown, who was arguing that the disquali¬ 
fication was not notorious, said: 

“Do you doubt that, if he is really disqualified, whether such disqualification is noto¬ 
rious or not, that the votes given for him are thrown away? In another jurisdiction, 
if the disqualification is notorious, it does more—it elects the other party; but of the 
law in this case you can have no doubt.”—(Heywood on Elections, page 533, and Wil¬ 
son’s Digest of Parliamentary Law, page 111.) 

In this case 2 was a majority of a quorum, yet Lord Mansfield said if Pike was noto¬ 
riously disqualified, Blissell, who received 1 vote, was elected, and “of the law in this 
case you can have no doubt. ’ ’ 

An examination of the opinion of the judges in 25 Maine Rep., 567, throws light upon 
the above opinion. There the governor submitted the following questions: 

1. Whether the governor and council in counting votes for county officers, under the 


RANSOM VS. ABBOTT. 


417 


statutes of that State, had power to receive from the town canvassers evidence to contra¬ 
dict the return made by them ? 

2. Whether the governor and council could receive an amended return from the town 
canvassers ? 

The judges, after citing the statutory provisions, answered as follows: 

“ The powers conferred upon the governor and council are specific and precise; and it 
is believed that it would be irregular to go beyond them, or in any manner to deviate 
from them. If they could receive evidence that the certificates were erroneous in one 
particular they might with equal propriety do so in another, and so exercise the powers 
oi judges of those elections generally, and without restriction.” 

In other words the duty cast upon the governor and council was purely ministerial. 
They were to canvass the election from the returns and had no power to inquire beyond 
them. This was the ground upon which the opinion in the 38 Maine Rep. rested, as is 
evident from the fact that in the opinion in the 38th the judges refer to the opinion in 
the 25th Maine Rep. as conclusive of the questions then presented. In the opinion in 
38 Maine the judges say the only duty cast upon the governor and council is to “ open 
and compare ’ ’ the copies of the records of the votes given, and from such comparison 
to ascertain and determine who had been elected. In other words, the statute did not 
make the governor and council the judges of the election, but merely cast upon them a 
specific ministerial duty, which performed, their power was at an end. This act had 
been performed by the former governor and council, who had declared that Abel C. Dins- 
low was elected. Consequently the then governor and council had no power to revise such 
former determination and declare that another was elected. And the precise and express 
ground upon which the opinion was given was that Dinslow having been elected, and 
there being no such man in existence, the office was vacant. It is evident that these 
opinions have no application to a case like the one under consideration, where the Sen¬ 
ate is “ the judge” of the election and is not restricted, as the governor and council in 
the Maine cases were, to a performance of the mere ministerial duty of declaring who 
appeared by the certificate to be elected. 

Saunders vs. Haynes (13 Cal., 145), was a proceeding to contest the election of the 
defendant Haynes as judge of the district court for the eighth district in California. 

The facts were these: Turner and Haynes were competing candidates at the election, 
and Turner received the larger number of votes, but the certificate was delivered to 
Haynes upon the assumption that Turner was ineligible because of his holding a lucra¬ 
tive office under the United States. The court held that Turner was not ineligible, and 
that, of course, ended the case and entitled Turner to the office. In the opinion of the 
court, it is said, obiter dictum , that if Turner had in fact been ineligible Haynes would 
not have been elected; and the case of State vs. Giles ( i Chand. Wis., 112) is cited as 
sustaining that principle. With the opinion and decision in Saunders vs. Haynes we 
fully concur. But the question involved in Mr. Abbott’s claim to avseat, viz, that the 
electors knew the candidate to be disqualified, was not averred, and was not involved, 
because the fact did not exist in that case. The court held that Turner was not ineligi¬ 
ble. Of course, the electors did not know a fact that did not exist. 

Commonwealth vs. Cluley (56 Penn. St., 270), was a rule on the relation of McLaugh¬ 
lin against Cluley to show cause why a quo warranto should not issue against Cluley, to 
test his right to the office of sheriff of Allegheny County. At the election, October 
9, 1866, Cluley received 19,915 votes and McLaughlin 12,925 votes for the office of 
sheriff. The suggestion rested upon the allegation that Cluley was ineligible at the 
time of the election, but it did not appear that the electors had notice of the disqualifi¬ 
cation; nor did it appear that, if the votes for Cluley were thrown out, McLaughlin was 
elected. Thfe case turned upon the precise point that, inasmuch as it was not alleged 
that throwing out Cluley’s votes, McLaughlin had a majority, therefore it did not ap¬ 
pear that McLaughlin had such an interest in the question as would enable him to 
contest the election. It is true that the court, speaking obiter dictum in regard to a 
popular election by ballot, expressed the opinion that McLaughlin was not elected. 
But the court fully approve of the English rule, that at an election viva voce, by a 
limited number of electors, the votes given for a candidate known to be ineligible are 
thrown away. 

The court says: 

“There is more reason for this in England, where the vote is viva voce, and the elect¬ 
ive franchise belongs to but few, than here, where the vote is by ballot, and the fran¬ 
chise well-nigh universal. In those cases the notice was brought home to almost every 
voter, and the number of electors was never greater then three , hundred, and gener¬ 
ally not more than two dozen. Besides, a man who. votes for a person with knowledge 
that the person is incompetent to hold the office, and that his vote cannot, therefore, be 
effective, that it will he thrown away, may very properly he considered as intending 
to vote a blank, or throw away his vote. 

S. Doc. 11-27 



418 


SENATE ELECTION CASES, 


1 ‘But the present relator suggests no such cause. He does not even aver that, if the 
votes given for Cluley were thrown out, he received a majority, though doubtless such 
was the truth. He has, therefore, exhibited no such interest as entitled him to be 
heard.” 

Without considering or quoting from the very able dissenting opinion of Chief-Justice 
Thompson in this case, we think it quite evident that the majority of the court have 
laid down principles upon which Abbott is entitled to his seat. Indeed, Abbott’s case 
is precisely that in which, according to the opinion of the court, those who voted for 
Vance “may very properly be considered as intending to vote a blank, or throw away 
(their votes.”) The election of Senator in North Carolina is made by two bodies, num¬ 
bering, in the aggregate, less then two hundred, voting viva voce; and in this case those 
who voted for Vance voted viva voce for a person known by them to be disqualified. 

These are the only American decisions supposed to conflict with the principle herein 
maintained which have been brought to the notice of your committee. In neither of 
these cases was the precise point now under consideration involved, and in no one of 
these cases is the principle of common and parliamentary law that a viva voce vote given 
for a person known by the elector to be disqualified is thrown away asserted, or even 
suggested to be unsound. On the contrary, in the Pennsylvania case, State vs. Cluley, 
as we have shown, the correctness and justness of this principle are expressly declared. 

There are but two cases, so far as your committee are informed, in which the election 
of a Senator has been contested upon the ground of ineligibility at the time of the elec¬ 
tion—that of Gallatin from Pennsylvania and Shields from Illinois. And an examina¬ 
tion of these cases will show that in neither of them was the point now made either 
involved or considered. 

In Gallatin’s case (1 Cont. Elec, in Congress, 854) the proof showed that when Galla¬ 
tin was first mentioned as a candidate he expressed his opinion that his citizenship did 
not entitle him to be elected. Henry Kammerer testified that, at a meeting of some of 
the members of the legislature to agree upon a candidate for Senator, he heard Mr. Gal¬ 
latin say: 

“As for my name, it is out of the question; I have not been a citizen long enough to 
entitle me to serve in that station.” 

That at a second meeting it was stated, though not by Gallatin, that the doubt about 
his citizenship was then put to rights; and then it was almost unanimously agreed to 
put up Mr. Gallatin’s name. Mr. Kammerer also stated the ground upon which Mr. 
Gallatin had at first supposed his citizenship did not entitle him to be a Senator. He 
says that the day after Gallatin’s election he had a conversation with him, in which 
Gallatin said he had first declared himself ineligible 11 under a mistaken idea that it 
was necessary for him to have been nine years a citizen of the State of Pennsylvania; 
but that upon examining the Constitution he found that to have been nine years a citizen 
of the United States was sufficient, and that he had been above nine years a citizen of 
the United States, or words to that effect.” 

From this it is evident that at the time of his election Mr. Gallatin, and those by 
whose votes he was elected, believed that he had been for more than nine years a citizen 
of the United States. And although the Senate decided that he had not been a citi¬ 
zen of the United States for nine years prior to his election, and unseated him for that 
reason, yet it was nowhere suggested, either by proof or on the argument, that the 
electors knew him to be disqualified at the time they cast their votes for him. 

Shields’s case (Cont. Elec, in Congress, 1834 to 1865) is in all material respects like 
that of Gallatin. He had not, in fact, been nine years a citizen of the United States, 
and was unseated for that reason. But it was not pretended that the electors knew of 
his disqualification. 

Therefore neither of these cases has any bearing upon the question now under consid¬ 
eration. 

Your committee have also been referred to the case of Yulee vs. Mallory, same volume, 
page 608. In that base, on the first day of the election—January 13, 1851—the general 
assembly of the legislature of Florida met in convention of the two houses, and pro¬ 
ceeded to vote viva voce for Senator. Twenty-nine votes were given for Yulee, and 29 
votes were given for “blank.” Thereupon the presiding officer declared no choice had 
been made. They then proceeded to a second and third vote, with substantially the 
same result. On the 15th of January they met again, and, on a call of the roll, thirty- 
one members responded “ S. JR. Mallory,” and 27 votes were given to Yulee and others, 
whereupon the presiding officer declared Mallory to be duly elected. From this state¬ 
ment it might seem that Yulee’s case raised the question now under consideration. But 
the brief, though very clear and able report of Mr. Bright, from the select committee in 
that case, shows the contrary. The two houses of the Florida legislature had, in 1845, 
passed a concurrent resolution, as follows: 

“Resolved, That a majority of all the members-elect composing the two houses of 


RANSOM VS. ABBOTT. 


419 


general assembly shall be necessary to determine all elections devolving upon that 
body.” 

Though the validity of this resolution was attacked by Mr. Yulee, the committee 
held that the resolution had been duly passed; that it had never been rescinded; that 
it was consistent with the Constitution of the United States empowering the legislature 
of a State to regulate the time, place, and manner of electing a Senator; and that it 
was conclusive against the right asserted by Yulee. And the resolution reported by the 
committee declaring that Mallory had been duly elected passed in the Senate without a 
dissenting vote. 

In the report the committee, after determining that under the resolution of the legis¬ 
lature above quoted Yulee was not entitled to a seat, say: 

“This being the view which the committee take of the case, there is no necessity for 
pursuing the subject further, since Mr. Yulee did not obtain votes sufficient to elect 
him.” 

The committee then notice the fact that the members of the legislature evidently 
voted upon the supposition that the resolution was valid, and say that— 

‘ ‘ Even conceding the resolution to be invalid, yet the members in the election were 
misguided by what they had a right to consider as authority, and must have acted under 
a misconception of right which stood as they supposed unquestioned. If this be so, they 
stand substantially in the condition of an elector who votes for a person disqualified 
believing him to be qualified. The vote in such a case, though unavailing, is not rejected 
from the count. 

‘ ‘ The only remedy which we can see for an election carried on through misapprehen¬ 
sion from such well-founded causes is to set it wholly aside and open the way to a new 
choice; but in our view of the case there is no occasion to consider what ought to be 
done upon such a state of facts.” 

The distinction between votes cast with knowledge or in ignorance of the disqualifica¬ 
tion of the candidate voted for is inferable from the report in Yulee’s case. And the 
doctrine maintained by that report, that an election carried on under honest misappre¬ 
hension in regard to then existing facts ought to be set aside and a new election ordered, 
is conceded. 

It was strongly contended before your committee that the case under consideration 
falls fairly within this equitable principle; because it was said that all the State officers 
and judges of North Carolina had been elected while under disability imposed by the 
fourteenth amendment, and Congress had subsequent to their election removed their 
disabilities and enabled them to hold their offices; and your committee were referred to 
the act of June 25, 1868 (15. Statutes at Large, 366), by which “all officers elected at 
the election commencing the 4th day of February, 1868, in the State of Alabama, ’ ’ and 
who had not publicly declined to accept the offices to which they were elected, were 
relieved of their disabilities. From these facts it was contended that the members oi 
the legislature who voted for Vance might well believe, and it was said that in fact they 
did believe, that Congress would relieve Vance of his disability and that he would be 
admitted to his seat in the Senate. 

This suggestion has some force, but a slight examination will show that it is rather 
plausible than sound. In the first place the case bears no resemblance to that supposed 
in the report in Yulee’s case; because here there was no misapprehension as to any fact 
then existing. If the electors had supposed that Vance was not disqualified, though in 
fact he was, or had they believed that an act had already passed Congress relieving him 
from his disability, though such was not the case, then the electors would have acted 
under a misapprehension and honestly entertained the belief that Vance was eligible. 
But such is not the case. Every elector who voted for Vance knew that he was disqual¬ 
ified by the fourteenth amendment, and that his disability had not been removed. 
Every elector therefore knew when he gave his vote for Vance that, as the case then 
stood, such vote was thrown away. As well might a man claim exemption from the 
penalty imposed by a statute upon the ground that although he knew he was violating 
its provisions he expected the legislature would repeal it. It was the duty of that legis¬ 
lature to elect a Senator who, in virtue of that election, and without the aid of any other 
government, would be authorized to demand his seat as a Senator. To elect a disqual¬ 
ified candidate, and then refer it to Congress to remove his disqualifications or not, is to 
transfer the election from the legislature to Congress. In such case the legislature 
would in effect be nominating a Senator and submitting it to Congress to determine 
whether or not he should be a Senator. Put the case in the strongest possible light for 
Vance, still it must be admitted that the electors who voted for him knew that as the 
case then stood their votes were being thrown away; that without the action of Congress, 
which might or might not be interposed, the election was in violation of the Constitu- 
tution; and up to the time when Abbott claimed his seat in this body, and up to the 
present hour, the votes g-'ven for Vance remain wholly inoperative, void, blanks in the 


420 


SENATE ELECTION CASES. 


law, thrown away for every legal purpose. Mistakes which equity may relieve against 
are mistakes in regard to existing facts—not oversanguine and unfounded hopes looking 
to the future for realization and accomplishment. 

In the second place, the legislation of Congress in regard to the organization of the 
reconstructed governments of the Southern States furnishes no precedent to bind the 
Senate in determining the election of its own members. Those State governments could 
not be organized without relieving the disabilities of those who had been elected. Con¬ 
gress was therefore compelled to do so or abandon those States to anarchy or remit them 
to military rule. To quote the language of a great statesman on another subject: “ A 
doubtful precedent should not be followed beyond its necessity.” No such necessity 
exists in regard to the Senate of the United States; and therefore the electors had no 
right to assume that Congress would do in this case where there was no necessity for it 
what it had been Compelled to do in the other cases referred to. And in no case has a 
Senator elected under disabilities imposed by the fourteenth amendment been relieved 
of such disability and permitted to take his seat. 

Several decisions of the House of Representatives have been referred to, which are 
supposed to be inconsistent with the principle here asserted. But it is believed that in 
none of those cases was it established that the electors knew of the disqualification of 
the candidate voted for; and in the very able report of Mr. Dawes, from the Committee 
on Elections (Rep. of Committees, 11, 2d sess. 40th Cong.), which is much relied upon, 
it is expressly stated that this point was not involved because it did not appear that the 
electors had such notice. 

But there are many reasons for declining a critical examination of the decisions of the 
other House in regard to the election of its members. By the Constitution, each House 
is made the judge of the elections, returns, and qualifications of its members. It would 
therefore be improper for the Senate—certainly indelicate for a committee of the Senate— 
to criticise the actions or decisions of the House; and it would be subversive of the Con¬ 
stitution because it would practically make the House of Representatives not only the 
judge of the election, returns, and qualifications of its own members, but also of the 
members of this House, if the Senate were to follow as precedents the decisions of the 
House in conflict with its own opinions. 

Again, there is much force and reason in the distinction made by the court, in Com¬ 
monwealth vs. Cluley (56 Penn. St., 274), between a popular election, under our system 
of almost universal suffrage, for a member of the House of Representatives, by ballot, and 
an election of a Senator by a viva voce vote of the members of a legislature. And it might 
well be that the House of Representatives should establish one rule appropriate to the 
election of its members, and the Senate a different rule in regard to the election of its 
members. The difference between the two cases would justify different rules. 

In a popular election, by ballot, for a member of the House of Representatives, where 
the voters are numerous and scattered over a considerable territory, it would be impossible 
to ascertain whether or not the electors, or enough of them to change the result, had 
knowledge of the disqualification of the candidate. Besides, voting by ballot includes 
the right of the elector to conceal the fact for which candidate he voted. This is his 
secret, which cannot be wrested from him even in a court of justice. And they who 
voted against the successful candidate, yot failed to defeat him at the polls, might at¬ 
tempt to accomplish the same end by pretending to have voted for him with knowledge 
of his incapacity. Even perjury in such case, should a voter voluntarily swear falsely 
in regard to it, could never be detected and punished. Such a principle applied to such 
elections would be unsatisfactory, often incapable of application, and always a tempta¬ 
tion to frauds and perjuries, which might be committed with impunity. And it may be 
conceded that, in determining who has been elected at such popular election by ballot, no 
candidate not receiving a majority of all votes cast, counting blanks and ballots for dis¬ 
qualified candidates, ought to be declared elected; and that the decisions of the House of 
Representatives, as applied to the election of its own members, ought to proceed upon a 
different principle than the one here contended for. 

But the circumstances which may well induce the House of Representatives to depart 
from the ancient rule and practice in determining the election of its members do not 
exist in relation to the election of Senators. Senators are elected by a small number of 
persons, the number fixed by law, who are compelled to vote viva voce. Their votes are 
matters of record, and the record discloses who voted for and who voted against the dis¬ 
qualified candidate. Whether these electors had notice or not of the ineligibility of a 
candidate is easily, and may be definitely and certainly, ascertained. There is no incon¬ 
venience, no opportunity for fraud, no temptation to perjury, in the application of the 
principle here contended for to such an election. Every reason that can be given for 
excluding the application of this principle to popular elections by ballot sustains its 
application to the election of a Senator by the viva voce vote of the members of the legis¬ 
lature; and it is worthy of remark that the rule of parliamentary and common law, which 


RANSOM VS. ABBOTT. 


421 


is established by an unbroken current of decisions in England, had reference to elections, 
not by ballot, but viva voce. That method of election gave rise to the rule, and no reason 
has been given, none suggests itself, for departing from it now in regard to such elections. 
And it should also be observed that in every case in the American courts of law where 
the judges have, obiter dictum ,, declared that the minority candidate was not elected, not 
only was the element of knowledge of the disqualification wanting, but the election was 
by ballot, and not viva voce. Not a dictum of any American court, or American law- 
writer of established reputation, has been cited to your committee, and it is believed that 
none exist, which disapproves of the principle as applicable to elections viva voce. 

In the report of the majority it is said that this principle belongs to a government 
where, as in England, the right to vote has been granted or conceded as a boon or fran¬ 
chise by the monarch to his subject; and hence to vote for a candidate known to be dis¬ 
qualified is a crime. But that in this country voting is the inherent right of every 
citizen; and Roe on Elections, page 256, is cited as sustaining this assertion in relation 
to elections in England. The author referred to, so far from sustaining such a distinction, 
does not allude to it. And it is believed, for many reasons, that no such distinction can 
be maintained. 

(1) The great charter in England was not a concession in the sense of a grant of rights. 
It was an admission that certain rights belonged to Englishmen, and always had belonged 
to them. The rights there admitted to exist were the inherent rights of Englishmen. 
Blackstone says: 

“The great charter ‘contained very few new grants, but, as Sir Edward Coke observes, 
was, for the most part, declaratory of the principal grounds of the fundamental laws of 
England.’ ” 

The great bill of rights delivered by the Lords and Commons to the Prince and Princess 
of Orange February 13, 1688, and afterward enacted in Parliament, after enumerating 
the privileges of the people, concludes in the following strain of ancient, manly eloquence: 

‘ ‘ And they do claim, demand, and insist upon all and singular the premises, as their 
undoubted rights and liberties. ’ ’ 

And the act of Parliament recognizes— 

“All and singular the rights and liberties asserted and claimed in the said declaration 
to b e true, ancient, and indubitable rights of the people of this kingdom. ’ ’ 

(2) The right of voting in this country is not an inherent right of the citizen. If it 
were, women as well as men could vote; because women as well as men are citizens, and 
always have been under our Constitution; and every inherent right of the citizen is 
possessed as fully, and may be exercised as freely, by the female as the male citizen. 
Our popular elections are participated in by those who have a constitutional right to 
vote. Their right to vote does not spring merely from citizenship; it is a right secured, 
limited, and regulated by the Constitution and laws.’ A citizen has no more inherent 
right to be a voter than to be a Senator. The citizen may vote if the Constitution and 
laws permit, not otherwise; so every citizen may be a Senator if duly elected and quali¬ 
fied, not otherwise. 

(3) But if such distinction were conceded to exist, it would strengthen the conclusion 
here arrived at. To test this, let us concede that the Englishman, in voting, is exer¬ 
cising not an inherent right, but a franchise delegated to him by the Crown; therefore 
it is a crime for him to vote for a disqualified candidate, and for that reason his vote is 
considered as thrown away, and the next highest qualified candidate is to be considered 
as elected. And let us also concede that at a popular election in this country the voter 
exercises an inherent right of citizenship; and hence, if he votes for a candidate known 
to be disqualified, his vote is not thrown away. From these admissions what results? 
Simply this: That in our popular elections, by ballot, for a member of the House of 
Representatives, the principle here contended for does not apply. Very well. It does 
not apply upon this hypothesis, because the voter is exercising an inherent right, and 
not a delegated power, when he casts his ballot. Now, if this distinction be well taken, 
does not every one perceive that the principle here contended for must apply to an elec¬ 
tion of Senators by the members of a legislature, who, in that election, are exercising a 
delegated power, and not an inherent right? The members of the legislature, in elect¬ 
ing a Senator, are exercising a power that is delegated in a double sense. The power to 
eleet a Senator is delegated by this Government—that is, by the Constitution of the 
United States—to the legislature of the State; and the people elect members of that legis¬ 
lature, who are, among other things, to exercise this power of electing a Senator. It 
will not be pretended that a member of the legislature in voting for a Senator is exer¬ 
cising an inherent right of a citizen, and all must admit that he is exercising a delegated 
power; so that the very argument which exempts the election of members of the House 
of Representatives from the operation of the principle under consideration subjects the 
election of Senators to its full operation. 

It has also been urged before your committee that bills passed by Congress to relieve 


422 


SENATE ELECTION CASES. 


disabilities of members elected to the House of Representatives rest upon pi.nciples 
inconsistent with the conclusions of this report. To this two answers may be made: 1. 
The proceedings of Congress in relation to cases of election while reconstruction of the 
late rebel States was in progress can hardly be relied upon as settling principles by which 
either House of Congress ought to be bound in times of peace. The circumstances under 
which such legislation was had were exceptional, and the legislation itself ought not to 
stand as a precedent. 2. The bills which have passed were bills originating in the House 
of Representatives concerning members elected to that House, and although the Senate has 
concurred in the enactment of such laws it ought not to be regarded as settling principles 
by which the Senate must be bound in determining the election of its own members. 
Whenever the House of Representatives manifests its desire to seat a member, although 
it may require the enactment of a law by both Houses to accomplish the purpose, still 
the Senate in concurring in such enactment may be regarded as extending a courtesy 
to the House of Representatives rather than settling principles which will bind the Sen¬ 
ate in relation to the election of its own members. 

To recapitulate, in regard to the precise legal question involved in this case, viz, 
whether in an election viva voce the votes cast for a candidate known by the electors 
when they gave their votes to be disqualified are to be considered as thrown away and 
the qualified candidate next on the poll is to be declared elected, we have in favor of 
such a principle: 

1. The uniform and unbroken current of decisions in the British Parliament from the 
earliest to the present time. 

2. The unanimous voice of the English courts of law. 

3. The express and well-considered decision of the supreme court of the State of Indi¬ 
ana in the case of Gulick vs. New (14 Ind. Rep., 927), and the case of Carson vs. McPhet- 
ridge (15 Ind. Rep., 327), applying the rule even to a popular election. 

4. The authority of Cushing’s Lex Parliamentarian the best American work on the sub¬ 
ject; Wilson’s Digest of Parliamentary Law; Angelland Ames on Corporations, a work of 
standard authority; the precedent of the legislature of Massachusetts even in regard to 
a popular election of its members (vide Cushing’s Reports of Contested Election Cases 
in Massachusetts, page 499; and another case, same report, 576). 

And opposed to this principle in regard to an election viva voce we have absolutely 
nothing. Not a writer, English or American, not a decision of any court or dictum of 
any judge in either country has been cited condemning or denying this principle in 
regard to such an election; and, on the contrary, the court, in Com. vs. Clul'ey (56 Penn. 
St., 270), which is relied on as being opposed, expressly recognize and indorse this 
principle when applied to elections viva voce by a limited number of electors. 

The cases which have been cited from the American reports and are relied upon as 
being opposed to this principle all related to popular elections by ballot, and not to elec¬ 
tions viva voce. Yet even in those cases the element of knowledge that the candidate 
was disqualified did not exist, and therefore all that is said about it in those cases is obiter 
dicta. 

A declaration from the bench is obiter dictum , and not binding as authority when it 
was unnecessary to a decision of the case in which it was made. 

To illustrate, the Supreme Court of the United States in the Dred Scott case (19 
Howard, 393), first determined that the circuit court of the United States had no juris¬ 
diction in the case. That ended the matter. The decision of the court below had to be 
reversed for that reason. It was therefore obiter dictum for the court to proceed to decide 
questions which, decided either way, would not affect the judgment to be pronounced. 
Had the court in that case held that the Missouri compromise, so called, was constitu¬ 
tional, yet the decision, that is, the judgment, would have been the same. 

The true rule upon this subject is given by Vaughan, C. J. (Vaughan, 382), as fol¬ 
lows: 

“An opinion given in court, if not necessary to the judgment given of record, but that 
it might have been as well given if no such or a contrary opinion had been broached, is 
no judicial opinion, nor more than a gratis dictum. But an opinion, though erroneous, 
concluding to the judgment, is a judicial opinion,” &c. 

To the same effect see Heath, J., in Hutchinson vs. Birch, 4 Taunton, 625; Pittstown 
vs. Plattsburg, 18 Johnson, 418. 

Therefore all that was said by the judges in the American cases cited, which cases did 
not involve the element of knowledge of the incapacity of the candidate, is obiter dicta. 
But were it otherwise, and had those decisions been made in cases which showed that 
the disqualification of the candidate was known to the elector, still the fact that they 
relate only to popular elections by ballot would render them wholly inapplicable to the 
case now before the Senate. 

Therefore it is submitted that upon reason and authority the votes cast for Mr. Vance, 
with full knowledge on the part of the members of both houses of the legislature that 


RANSOM VS. ABBOTT. 


423 


he waa disqualified by the Constitution to serve in this body, ought to be considered as 
thrown away; and that, inasmuch as a majority of all the members elected to each 
house were “actually present,” the election was legal, and that the qualified candidate 
receiving the highest number of votes, and a majority of all votes cast for qualified can¬ 
didates, was duly elected. It is conceded that majorities have a constitutional right to 
govern in this country; but it is not conceded that even the majority of the legislature 
of a State may morally or constitutionally defeat government by refusing to elect Sena¬ 
tors to serve in the Senate of the United States. In this case the majority had a right 
to elect a qualified person to the Senate; but, having waived their right by voting for a 
person known to be disqualified, as much as though they had refused to vote at all, or 
had voted for a man known to be dead, the minority who complied with the Constitu¬ 
tion by voting for a qualified candidate may well be held to have expressed the will of 
the legislature. If the majority, being called upon, will not vote, they cannot complain 
that the election was decided hy those who did vote, though a minority of the elective 
body. And voting for a person known to be disqualified is not voting. Such votes are 
void—no votes; and the highest number of votes cast, a quorum being present, must 
effect an election. 

Therefore, in view of the premises, the minority of your committee recommend the 
adoption of the following resolution: 

Resolved , That Joseph C. Abbott has been duly elected Senator from the State of 
North Carolina for the term of six years commencing on the 4th day of March, 1871, 
and that he is entitled to a seat in the Senate as such Senator. 

MATT. H. CARPENTER, 

B. F. RICE, 

Minor ity of Committee. 

» 

Thursday, April 11, 1872. 

On motion by Mr. Logan, the Senate proceeded to consider the following resolution, 
leported from the‘Committee on Privileges and Elections: 

il Resolved , That Joseph C. Abbott, not having received a majority of the votes cast by 
the North Carolina legislature on the second Tuesday in November, 1870, for the office 
of Senator of the United States, is not entitled to a seat in said United States Senate as 
such Senator. ’ ’ 

On motion by Mr. Carpenter to amend the resolution by striking out all after the 
word “resolved,” and inserting in lieu thereof the following: 

“ That Joseph C. Abbott has been duly elected Senator from the State of North Car¬ 
olina for the term of six years, commencing on the 4th day of March, 1871, and that he 
is entitled to a seat in the Senate as such Senator,” 

After debate, 

On motion by Mr. Edmunds (at 5 o’clock and 15 minutes) the Senate adjourned. 

[The debate, including a speech by Mr. Logan, is found on pages 219-229 of the Ap¬ 
pendix to the Congressional Globe referred to in the head-note.] 

Friday, April 12, 1872. 

The Senate resumed, &c. 

[The debate is found on pages 2387-2390 of the Congressional Globe referred to in the 
head-note. Mr. Carpenter’s speech is found on pages 245-257 of the Appendix referred 
to in the head-note.] 

Monday, April 15, 1872. 

The Senate resumed, &c. 

[The debate is found on pages 2431-2434 of the Congressional Globe referred to in the 
head-note. Mr. Thurman’s speech is found on pages 234-245 of the Appendix referred 
to in the head-note.] 

Monday, April 22, 1872. 

The Senate resumed, &c. 

[The debate is found on page 2639 of the Congressional Globe referred to in the head - 
note. Mr. Pool’s speech is found on pages 272-279 of the Appendix referred to in the 
head-note. ] 

Tuesday, April 23, 1872. 

The Vice-President announced that the morning hour had expired, and called up the 
unfinished business of the Senate at its last adjournment, viz, the resolution reported 
from the Committee on Privileges and Elections declaring Joseph C. Abbott not entitled 
to a seat in the Senate as a Senator from the State of North Carolina; and the Senate 
resumed the consideration of the said resolution. 

******* 

On the question to agree to the amendment proposed by Mr. Carpenter to amend the 
resolution, viz: Strike out all after the word “resolved,” and in lieu thereof insert: 


424 SENATE ELECTION CASES. 

“ That Joseph C. Abbott has been duly elected Senator from the State of North Car¬ 
olina for the term of six years commencing on the 4th day of March, 1871, and that Ik 
is entitled to a seat in the Senate as such Senator,’ ’ 

After debate, 

It was determined in the negative—yeas 10, nays 42. 

On motion by Mr. Carpenter, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the afiirmative are Messrs. Ames, Chandler, Cragin, Gilbert, Howe, 
Nye, Osborn, Patterson, Pool, and Sawyer. 

Those who voted in the negative are Messrs. Alcorn, Bayard, Blair, Buckingham, Cald¬ 
well, Cameron, Casserly, Clayton, Cooper, Davis of West Virginia, Edmunds, Fenton, 
Ferry of Connecticut, Ferry of Michigan, Frelinghuysen, Goldthwaite, Hamilton of 
Maryland, Hamlin, Hill, Hitchcock, Johnston, Kelly, Logan, Morrill of Maine, Morrill 
of Vermont, Morton, Pratt, Ramsey, Robertson, Schurz, Scott, Sprague, Stevenson, 
Stockton, Sumner, Thurman, Tipton, Trumbull, Vickers, West, Windom, and Wright. 

So the motion was not agreed to; and 

On the question to agree to the resol ution reported by the Committee on Privileges 
and Elections, it was determined in the afiirmative. 

So it was 

Resolved, That Joseph C. Abbott, not having receiveda majority of the votes cast by 
the North Carolina legislature on the second Tuesday in November, 1870, for the office 
of Senator of the United States, is not entitled to a seat in said United States Senate as 
such Senator. 

[The debate is found on page 2676 of the Congressional Globe referred to in the head- 
note. Mr. Carpenter’s speech is found on pages 328-334 of the Appendix referred to in 
the head-note.] 


COMPENSATION OF MR. ABBOTT. 

ft 

Wednesday, April 24, 1872. 

Mr. Morton, from the Committee on Privileges and Elections, reported the following 
resolution; which was read the first and second times, by unanimous consent: 

“Resolved , That Joseph C. Abbott, late contestant for a seat in this body from the 
State of North Carolina, be allowed his salary from 4th of March, 1871, up to the 23d of 
April, 1872, and one mileage each way.” 

The Senate proceeded to consider the said resolution as in Committee of the Whole; 
and no amendment being made, it was reported to the Senate. 

Ordered , That it be engrossed and read a third time. 

The said resolution was read the third time, by unanimous consent. 

Resolved , That it pass. 


CREDENTIALS OF MR. RANSOM. 

Monday, February 5, 1872. 

The Vice-President laid before the Senate the credentials of Matt W. Ransom, elected 
a Senator by the legislature of the State of North Carolina for the unexpired portion of 
the term commencing March 4, 1871; which were read. 

Ordered , That they be referred to the Committee on Privileges and Elections. 

Wednesday, April 24, 1872. 

Mr. Morton, from the Committee on Privileges and Elections, to whom were referred 
the credentials of Matt W. Ransom, elected a Senator by the legislature of North Caro¬ 
lina for the term of six years commencing March 4, 1871, reported that upon examina¬ 
tion the committee had found that the credentials were in due form, and recommended 
that Mr. Ransom be admitted to a seat in the Senate; 

Whereupon 

Mr. Ransom appeared, and the oaths prescribed by law having been administered to 
him by the Vice-President, he took his seat in the Senate. 

COMPENSATION OF MR. RANSOM. 

Friday, April 26, 1872. 

Mr. Bayard submitted the following resolution; which was referred to the Committee 
on Privileges and Elections: 

“ Resolved, That the pay of the Hon. Matt W. Ransom, as a Senator from the State ol 
North Carolina, shall commence on the 4th day of March, 1871.” 


RANSOM VS. ABBOTT. 


425 


Tuesday, June 4, 1872. 

Mr. Thurman, from the Committee on Privileges and Elections, to whom was referred 
the resolution submitted by Mr. Bayard April 26, 1872, relative to the pay of Matt W. 
Ransom, a Senator from the State of North Carolina, submitted the following report: 

The Committee on Privileges and Elections, to whom was referred the following reso¬ 
lution offered by the Senator from Delaware, Mr. Bayard, to wit: 

u Resolved , That the pay of Matt W. Ransom as a Senator from the State of North 
Carolina shall commence on the 4th day of March, A. D. 1871,” 

Report that the practice in each House of Congress seems to have been founded upon 
an interpretation of the act of July 12,1862 (12 Stat., 624; Manual, 312), consistent with 
the resolution. As this interpretation has been practiced upon since 1862, and may be 
considered as within the spirit of the act aforesaid, your committee report back the res¬ 
olution with a recommendation that it be passed. 

O. P. MORTON. 

A. G. THURMAN. 

H. B. ANTHONY. 

JOSHUA HILL. 

M. H. CARPENTER. 

JOHN A. LOGAN. 

B. F. RICE. 

The Senate proceeded to consider the said resolution as in Committee of the Whole; 
and no amendment being made, it was reported to the Senate. 

Ordered , That it be engrossed and read a third time. 

The said resolution was read the third time. 

Besolved, That it paas. 


426 


SENATE ELECTION CASES. 


[Forty-second Congress—Second and third sessions.] 

S. C. POMEROY AND ALEXANDER CALDWELL, 

of Kansas. 

April 8,1872, a report of a joint committee appointed by the Kansas legislature to investigate 
charges of bribery and corruption connected with the Senatorial elections of 1867 and 1871 was pre¬ 
sented and referred to the Committee on Privileges and Elections. Mr. Pomeroy had been elected 
in 1867, and Mr. Caldwell in 1871. May 11, the Senate resolved that the committee be authorized 
to investigate these elections. June 3, the committee reported in regard to Mr. Pomeroy’s election 
that there was no evidence that Mr. Pomeroy had used money to influence any vote in his favor, 
except hearsay , and that was plainly contradicted by direct testimony; that the charges of bribery 
and corruption against Mr. Pomeroy, connected with his election, totally failed to be sustained by 
competent proof, but seem to have been urged for some purpose unknown to the committee beyond 
that of correcting existing evils. Two members of the committee did not concur in the last con¬ 
clusion. The committee reported the testimony taken, and asked to be discharged from the 
further consideration of Mr. Pomeroy’s case. 

February 17,1873, the committee reported in regard to Mr. Caldwell’s election that they could 
“ not doubt that money was paid to some members of the legislature for their votes, and money 
promised to others which was not paid, and offered to others who did not accept it; ” that it was a 
subject of discussion in the committee whether the offenses of Mr. Caldwell should be punished 
by expulsion, or go to the validity of his election, but that a majority were of opinion that they 
went to the validity of his election and had the effect to make it void. The committee submitted 
the evidence taken and recommended the adoption of a resolution that Mr. Caldwell was not duly 
and legally elected. March 24, after long debate on the resolution, before a vote was taken, Mr. 
Caldwell resigned his seat. 

February 10,1873, on motion of Mr. Pomeroy, the Senate resolved that a select committee investi¬ 
gate charges of bribery and corruption in the Senatorial election held in January, 1873, relating to 
the alleged purchase by Mr. Pomeroy of the vote of A. M. York, a State senator. (Mr. Pomeroy 
had been a candidate for re-election in January, 1873.) February 18, a memorial of B. F. Simpson 
was presented, praying that the committee be authorized to investigate certain other general 
charges of bribery against Mr. Pomeroy. The Senate resolved that the committee be directed to 
inquire into these general charges. March 3, the committee reported the evidence, and the con¬ 
clusions that “ none of the charges preferred by Mr. Simpson were sustained ”; and that, in regard 
to the charges of Mr. York, he “ had not sustained his charge by sufficient proof, contradicted as it 
was by the evidence of Mr. Page and Mr. Pomeroy.” One member of the committee did not agree 
with the report. No further action on the subject was taken. 

The history of the ease here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journals, 42d Cong., 2d and 3d sess., and the reports of the committees, refer¬ 
ences to which are given in foot-notes. 

Special references to the debates of each day are inserted below. 


[Second session of the Forty-second Congress.] 

Tuesday, March 5, 1872. 

Mr. Pomeroy submitted the following resolution; which was considered by unani¬ 
mous consent, and agreed to: 

“ Resolved , That all papers and communications relating to the election of Senators in 
the State of Kansas in the years 1867 and 1871 be referred to the Committee on Privi¬ 
leges and Elections, and that they be directed to report to the Senate, after examination, 
what action, if any, should be taken by the Senate in relation thereto.” 

Mr. Pomeroy presented a printed paper, purporting to be the report of a committee of 
investigation of the legislature of Kansas on the Senatorial elections in that State in the 
years 1867 and 1871, and moved that the same be referred to the Committee on Privi¬ 
leges and Elections. 

The reference of the paper being objected to, 

Ordered , That the paper lie on the table. 

On motion by Mr. Hamlin that the Senate reconsider its vote agreeing to the resolu¬ 
tion of Mr. Pomeroy in reference to the election of Senators in the State of Kansas in 
1867 and 1871, it was determined in the affirmative; and, 

On motion by Mr. Hamlin, 

Ordered , That the resolution lie on the table. 

[The debate is found on pages 1410, 1411 of the Congressional Globe, 2d sess. 42d 
Cong., part 2.] 

Monday, April 8, 1872. 

The Vice-President laid before the Senate a report of a joint committee appointed by 
the legislature of Kansas to investigate charges of bribery and corruption connected with 
the Senatorial election in that State in 1867 and 1871; which was referred to the Com¬ 
mittee on Privileges and Elections. 


POMEROY AND CALDWELL. 


427 


Mr. Pomeroy presented a report of a joint committee appointed by the Kansas legisla¬ 
ture to investigate charges of bribery and corruption connected with the Senatorial elec¬ 
tions of 1867 and 1871 in that State; which was referred to the Committee on Privileges 
and Elections. 

Saturday, May 11, 1872. 

Mr. Morton, from the Committee on Privileges and Elections, reported the following 
resolution; which was considered by unanimous consent, and agreed to: 

‘ ‘ Resolved , That the Committee on Privileges and Elections be authorized to investi¬ 
gate the election of Senator C. S. Pomeroy by the legislature of Kansas in 1867, and the 
election of Senator Alexander Caldwell in 1871; that the committee have power to send 
for persons and papers; that the chairman or acting chairman of said committee or any 
subcommittee thereof have power to administer oaths, and that the committee be 
authorized to sit in Washington or elsewhere during the session of Congress and in vaca¬ 
tion.” 

[The debate is found on pages 3316, 3317 of the Congressional Globe, 2d sess. 42d 
Cong., part 4.] 

Monday, May 13, 1872. 

Mr. Morton presented a petition of citizens of Kansas, praying an investigation of the 
election of Hon. Alexander Caldwell as Senator from that State. 

Ordered , That it lie on the table. 

******* 

Mr. Morton, from the Committee on Privileges and Elections, reported the following 
resolution; which was considered by unanimous consent, and agreed to: 

‘ ‘ Resolved, That the Committee on Privileges and Elections be authorized to employ a 
stenographer in the investigation which it has been directed to make into the Kansas 
Senatorial elections.” 

Mr. Morton, from the Committee on Privileges and Elections, reported the following 
resolution; which was read the first and second times, by unanimous consent: 

“ Resolved , That the sum of $10,000 be appropriated from the contingent fund of the 
Senate, or so much thereof as may be necessary, to defray the expenses of the investiga¬ 
tion into the Kansas Senatorial elections, ordered by the Senate to be paid upon vouchers 
approved by the chairman of the Committee on Privileges and Elections.” 

The Senate proceeded to consider the said resolution as in Committee of the Whole; 
and no amendment being made, it was reported to the Senate. 

Ordered, That it be engrossed and read a third time. 

The said resolution was read the third time, by unanimous consent. 

Resolved , That it pass. 

Monday, June 3, 1872. 

Mr. Logan, from the Committee on Privileges and Elections, who were instructed by 
a resolution of the Senate of May 11, 1872, to investigate the election of the Senators 
from Kansas, submitted a report (No. 224) thereon. 

REPORT OF COMMITTEE ON ELECTION OF MR. POMEROY IN 1867.* 

In the Senate of the United States. 

June 3, 1872.—Ordered to be printed. 

Mr. Logan, from the Committee on Privileges and Elections, submitted the following 
report: 

The Committee on Privileges and Elections, to whom was referred a certified copy of 
the report of the joint committee of investigation appointed by the Kansas legislature of 
1872 to investigate all charges of bribery and corruption connected with the Senatorial 
elections of 1867 and 1871, met on the 20th of April, 1872, and directed the clerk of said 
committee to prepare an abstract of the evidence furnished by the said report of the legis¬ 
lature of Kansas. On the 23d of April your committee met and adjourned over until the 
24th, when, on account of sickness in the family of Senator Thurman, the case was post¬ 
poned until he should return from a visit home. 

On May the 11th your committee met and adopted the following resolution: 

“ Resolved, That the chairman of the committee do ask the Senate for leave to send for 
persons and papers in reference to the elections of both 1867 and 1871, and that the com¬ 
mittee have leave to sit in the vacation, and to take testimony by either the whole com¬ 
mittee or a subcommittee, at Washington or elsewhere; that, in asking for authority as 
aforesaid, the chairman be requested to state that the committee express no opinion 
upon the subject.” 

* Taken from Senate Reports, 2d sess. 42d Cong., vol. 1, No. 224. The testimony accompanying the 
report is here omitted. 



428 


SENATE ELECTION CASES. 


On the same day the Senate, in response to the request of the committee, adopted the 
following resolution: 

In the Senate of the United States, May 11, 1872. 

Resolved , That the Committee on Privileges and Elections be authorized to investi¬ 
gate the election of Senator S. C. Pomeroy, by the legislature of Kansas, in 1867, and the 
election of Senator Alexander Caldwell in 1871; that the committee have pow er to 
send for persons and papers; that the chairman, or acting chairman, of said committee, 
or any subcommittee thereof, have power to administer oaths; and that the committee 
be authorized to sit in Washington, or elsewhere, during the session of Congress and in 
vacation. 

Attest: 

GEO. C. GORHAM, 

Secretary. 

By W. J. MCDONALD, 

Chief Cleric. 

On the 13th of May your committee met, and, in accordance with the authority con¬ 
ferred upon them by the resolution of the Senate, directed all witnesses in reference to 
the charges against S. C. Pomeroy, Senator from the State of Kansas, to be summoned to 
appear forthwith and testify in reference to said charges, and also the clerk of the com¬ 
mittee was directed to make inquiry who is the present custodian of the books and papers 
of the late Perry Fuller, of Washington, D. C., and, if such information can be had, that 
the party having possession of his account-books, check-books, and bank-books, for the 
time between December 1, 1866, and February 1, 1867, be summoned to appear with 
them. 

On motion, the committee adjourned subject to the call of the chairman. 

On the 21st day of May your committee were called together for the purpose of pro* 
ceeding with the examination, a portion of the witnesses having arrived. 

Senator Caldwell, of Kansas, appeared and urged an early examination and disposition 
of the question in reference to his election in 1871. Your committee, however, consid¬ 
ering the time too short during the sitting of Congress to thoroughly investigate both 
Senatorial elections, concluded to proceed only with the investigation of the election of 
Mr. Pomeroy in 1867, leaving the case of Mr. Caldwell to be examined during the vaca¬ 
tion of Congress, or at such time as may be agreed upon by your committee. 

The examination of the witnesses in the case of Mr. Pomeroy was then proceeded with, 
and continued from day to day until the case was closed. 

Your committee respectfully submit all the testimony, and report as follows: 

1. That it appears from the evidence that two United States Senators were elected by 
the Kansas legislature in 1867, Mr. S. C. Pomeroy for a full term of six years, and Mr. 
Ross for an unexpired term of four years from the 4th day of March, 1867; that the can¬ 
didacy of Mr. Pomeroy was generally understood by the people of Kansas during the 
election of members of the legislature who were to elect Senators for the State of Kansas, 
and that the election of Mr. Pomeroy as one of those Senators was generally conceded, 
that all candidates against Mr. Pomeroy for the long term withdrew from the contest, 
save Mr. A. L. Lee. Mr. Pomeroy, in joint convention of the two houses of the legis¬ 
lature, received 84 votes; Mr. Lee received 25 votes; the disparity of votes being so great 
as to preclude of itself the idea that the election of Mr. Pomeroy, against the will of the 
constituents of those who voted for him, was procured by corrupt means. 

2. There is no evidence that Mr. Pomeroy, or any one for him, used any money or 
other valuable thing to influence any vote in his favor, or in any manner to bring about 
his election, except hearsay, and this is plainly contradicted by the direct testimony of 
the parties either to whom or by whom it is alleged such considerations were given. 

3. The evidence that Mr. Pomeroy’s canvass lor Senator cost him considerable money 
is clearly shown to be the expenses paid by him for himself and friends during the Sena¬ 
torial canvass, for hotel accommodations, disconnected entirely with the vote of any 
member, either for or against him. 

4. The evidence shows that some of the friends of Mr. Pomeroy have been appointed 
to office under the Government of the United States, but fails to show that they were 
appointed in consideration of any vote or any influence used by them in procuring the 
election of Mr. Pomeroy; and your committee beg leave to say that they can find no 
fault with Mr. Pomeroy or any one else (when they recommend for appointment to 
office) that they recommend their friends instead of their enemies. 

5. It appears from the evidence that Mr. Pomeroy engaged, for a compensation to be 
made, the services of the Lawrence State Journal to advance the interests of the Repub¬ 
lican candidates and of the Republican party in the State of Kansas in the year 1866; but 
it also appears that said Journal broke its engagement, and supported the Conservative 
or Democratic ticket. 


POMEROY AND CALDWELL. 


429 


Your committee, therefore, after maturely considering the testimony adduced before 
them, are clearly of the opinion that the charges of bribery and corruption against S. C. 
Pomeroy, connected with his Senatorial election by the Kansas legislature in 1867, to¬ 
tally fail to be sustained by any competent proof, but seem to have been urged for some 
purpose, unknown to your committee, beyond that of correcting existing evils. Your 
committee, therefore, beg to be discharged from the further consideration of the same. 

O. P. MORTON, 

B. F. RICE, 

JOHN A. LOGAN, 

H. B. ANTHONY, 

MATT. H. CARPENTER, 

Committee. 

We concur with the other members of the committee in the finding that there is not 
evidence before us-sufficient to show that Mr. Pomeroy’s election was procured by the 
use of corrupt means; and having no definite, reliable information leading to the con¬ 
clusion that further investigation would develop such evidence, we concur in the rec¬ 
ommendation that the committee be discharged from the further consideration of the 
subject. Here we think that our duty ends. We do not think it proper to impugn the 
motives of those who urged this investigation. The subject was brought to the notice 
of the Senate by the general assembly of Kansas, and, as it seems to us, a proper re¬ 
spect for that body precludes an imputation of improper motives. 

We cannot, therefore, concur in the last paragraph of the report, and there are other 
passages that do not meet our approval. For these reasons we have preferred to state 
our views in our own language. 

A. G. THURMAN. 

JOSHUA HILL. 

[Third session of the Forty-second Congress. ] 

Monday, February 17, 1873. 

Mr. Morton, from the Committee on Privileges and Elections, who were instructed by 
a resolution of the Senate to investigate the election of Alexander Caldwell, a Senator 
from the State of Kansas in 1871, submitted a report (No. 451) accompanied by the 
following resolution: 

“ Resolved , That Alexander Caldwell was not duly and legally elected to a seat in the 
Senate of the United States by the legislature of the State of Kansas.” 

ItEPORT OF COMMITTEE ON ELECTION OF MR. CALDWELL IN 1871.* 

[The committee consisted of Messrs. Morton (chairman), Carpenter, Logan, Alcorn, 
Hill, Anthony, and Trumbull. ] 

In the Senate of the United States. 

February 17, 1873.—Ordered to be printed. 

Mr. Morton, from the Committee on Privileges and Elections, submitted the following 
report: 

On the 11th day of May, 1872, the Senate adopted the following resolution: 

“ Resolved , That the Committee on Privileges and Elections be authorized to investi¬ 
gate the election of Senator S. C. Pomeroy by the legislature of Kansas in 1867, and the 
election of Senator Alexander Caldwell in 1871; that the committee have power to send 
for persons and papers; that the chairman or acting chairman of said committee or any 
subcommittee thereof have power to administer oaths; and that the committee be author¬ 
ized to sit in Washington or elsewhere during the session of Congress and in vacation.” 

In obedience to this resolution the Committee on Privileges and Elections have had 
under consideration the election of Alexander Caldwell to the Senate of the United 
States in January, 1871, have taken testimony, and beg leave to submit the following 
report: 

It is testified by Mr. Len. T. Smith, a former business partner of Mr. Caldwell, his 
active friend at the time of his election and during this investigation, that he made an 
agreement with Thomas Carney, of Leavenworth, by which, in consideration that Mr. 
Carney should not be a candidate for United States Senator before the legislature of 
Kansas, and should give his influence and support for Mr. Caldwell, Mr. Caldwell should 

* Taken from Senate Reports, 3d sess. 42d Cong., No. 451. The evidence accompanying the report 
l» here omitted. 



430 


SENATE ELECTION CASES. 


pay him the sum of $15,000, for which amount notes were given and afterward paid, at 
the same time taking from Mr. Carney a written instrument in which he pledged him¬ 
self in the most solemn manner not to be a candidate for the office of Senator in the 
approaching election. 

This instrument is in the words following: 


“ I hereby agree that I will not under any condition of circumstances be a candidate 
for the United States Senate in the year 1871 without the written consent of A. Cald¬ 
well, and in case I do to forfeit my word of honor hereby pledged. I further agree and 
bind myself to forfeit the sum of $15,000, and authorize the publication of this agree¬ 
ment. 

“THOS. CARNEY. 


“TOPEKA, January 13, 1871.” 


Mr. Smith’s testimony is fully corroborated by that of Mr. Carney, who admits the 
execution of the paper, the making of the arrangement, the taking of the notes, and 
the subsequent receipt of the money. The notes for the money were signed by Mr. 
Smith, but paid by Mr. Caldwell; and one of them, for $5,000, was made contingent 
upon Mr. Caldwell’s election. The substance of the whole agreement, only a part of 
which was expressed in the writing, was that Mr. Carney should not be a candidate for 
the Senate against Mr. Caldwell, that he should use his influence for Mr. Caldwell, go 
to Topeka, meet the legislature, and do all he could to secure his election. 

The first question lobe considered is: Was this arrangement corrupt? Was it the 
use of corrupt means on the part of Mr. Caldwell to procure his election? The commit¬ 
tee are of opinion that it was corrupt; was against public policy; was demoralizing in 
its character; directly contributed to destroy the purity and freedom of election, and 
not to be tolerated by the Senate of the United States as a means of procuring a seat in 
that body. 

To understand the full nature of the transaction we must consider the character and 
position of Mr. Carney. He had been a governor of Kansas; he had once been elected 
a Senator of the United States by the legislature of that State, but the election was 
premature, being at the wrong session; he had been a candidate for the Senate at another 
time, and had come within 10 votes of being elected. He was well known throughout 
the State, had a large body of active friends, many of whom were warmly devoted to 
his political fortunes. His being a candidate would greatly endanger the success of 
Mr. Caldwell, if not certain to result in his defeat. He was from the same city with 
Mr. Caldwell, and his candidacy would be the more dangerous on that account. When 
Mr. Caldwell agreed to give him $15,000 under this arrangement it was an attempt to 
purchase the votes of the friends of Mr. Carney. He doubtless expected that Mr. Car¬ 
ney, through his influence over his friends, could bring them over to his support. They 
would naturally become friends to the man with whom Mr. Carney was friendly. It was, 
at least, a tacit part of this arrangement that Mr. Carney should conceal the mercenary 
part of the transaction, and place his withdrawal from the canvass and his support of 
Mr. Caldwell upon personal and political considerations that were honorable to himself 
and would be attractive to his friends; and this he did. Mr. Carney went to Topeka 
before the Senatorial election and remained there until it was over, working industri¬ 
ously for Mr. Caldwell, and exerting all his personal and political influence to secure 
his election. Looking at the transaction in its real character it was a sale upon the part 
of Mr. Carney of the votes of his personal and political friends in the legislature, to be 
delivered by him to Mr. Caldwell as far as possible. If it were legitimate for Mr. Cald¬ 
well to buy off Mr. Carney as a candidate, it was equally legitimate to buy off all the 
other candidates and have the field to himself, by which he would exert a quasi-coer¬ 
cion upon the members of the legislature to vote for him, having no other candidate 
to vote for. It was an attempt to buy the votes of members of the legislature, not by 
bribing them directly, but through the manipulations of another. The purchase-monej 
was not to go to them but to Mr. Carney, who was to sell and deliver them without 
their knowledge. That Mr. Caldwell did procure the votes of members of the legis¬ 
lature, friends of Mr. Carney, ignorant of the fact that Mr. Carney was making mer¬ 
chandise of his political character and influence, and of their friendship for him, for which 
he was to receive a large sum of money, the evidence leaves no reasonable doubt. 

Buying off opposing candidates, and in that way securing the votes of all or the most 
of their friends, is in effect buying the office. It recognizes candidacy for office as a 
merchantable commodity, a thing having a money value, and is as destructive to the 
purity and freedom of elections as the direct bribery of members of the legislature. 

A candidate for the Senate without strength or merit may by purchasing the influ¬ 
ence and support of all or a part of his competitors and withdrawing them from the 
canvass succeed in an election, thus not only committing a fraud upon the friends of 


POMEROY AND CALDWELL. 


431 


the candidates who were purchased off, hut a greater fraud upon the people of the State, 
who may be thus saddled with a representative in the Senate of the United States about 
whom they know little, for whom they care nothing, and who possesses little ability to 
represent their interests. 

Air. Smith, the friend of Mr. Caldwell, testifies that he paid Mr. Carney the further 
sum of $7,000 while at Topeka and just before the Senatorial election to meet Mr. Car¬ 
ney’s alleged expenses while there, and through fear that Mr. Carney would after all 
withdraw from the arrangement and become a candidate. 

Upon the check for this sum the money was drawn from the bank at Topeka in the 
evening by one T. J. Anderson, who testified that he gave it to Mr. Carney, and that 
he was ignorant of the consideration for which it was paid. Other testimony impeaches 
that of Mr. Anderson and raises a strong presumption that he was engaged in the pur¬ 
chase of votes for Mr. Caldwell, and for which this $7,000 was used, and that for his 
services he afterward received the sum of $5,000 from Mr. Caldwell. Mr. Carney swears 
positively that he did not receive this $7,000 or any part of it, but he indorsed the check 
at the request of Air. Smith to enable him to procure the money from the bank; that 
the money was to be used in procuring votes for Mr. Caldwell, and that a package con¬ 
taining this money, as he believes, was placed by Mr. Anderson on a table in Mr. Car¬ 
ney’s room, where it could be and was conveniently carried off by the parties for whom 
it was intended. 

Taking all the testimony together, the probability is that Mr. Carney did not get the 
$7,000, as no good reason was presented by Mr. Smith why when Mr. Caldwell was 
holding Governor Carney’s written promise not to be a candidate and Mr. Carney hold¬ 
ing notes to be paid by Mr. Caldwell for $15,000 a new arrangement should be made by 
which Air. Smith should pay Mr. Carney $7,000 more, making $22,000 in all. 

We now come to the consideration of the transaction with Mr. Sidney Clarke. He 
had been a member of Congress, had been a candidate for the United States Senate dur¬ 
ing the preceding canvass before the people, and many members of the legislature were 
elected upon personal pledges to vote for him for Senator. When the first vote was 
taken in the separate houses Mr. Clarke received 27 votes, the largest number given for 
any candidate but one; but the votes satisfied him and his friends that he could not be 
elected. An arrangement was concluded between Mr. Caldwell and a Mr. Stevens, a 
friend of Mr. Clarke, at a late hour in the night before the joint convention of the two 
houses, by which Mr. Caldwell was to pay Mr. Clarke’s expenses in the canvass, esti¬ 
mated at from $12,000 to $15,000, and Mr. Clarke was to withdraw in favor of Mr. 
Caldwell. At a caucus of the friends of Mr. Clarke, held at 9 o’clock on the morning of 
the joint convention when Air. Caldwell was elected, Air. Clarke made a speech and 
urged them to vote for Air. Caldwell, and in joint convention his name was withdrawn 
and all his friends but one voted for Mr. Caldwell. Subsequently in this city Mr. Clarke 
had several conferences with Air. Caldwell, in which the latter promised to comply with 
his engagement with Air. Stevens and pay Mr. Clarke’s expenses, estimated at from 
$12,000 to $15,000, but never did. Mr. Clarke was unwilling to admit that he had 
made an agreement to transfer his friends to Mr. Caldwell in consideration of the latter’s 
promise to pay this money, but taking all the testimony together the committee have 
no doubt that the transaction between him and Mr. Clarke was as has been stated. Mr. 
Caldwell’s subsequent refusal to pay the money to Mr. Clarke does not relieve the 
character of the transaction, and very probably resulted in the exposure of Mr. Caldwell 
and the institution of this examination. 

There was nothing in the evidence to show that Mr. Clarke’s expenses in the Sen¬ 
atorial canvass or in the preceding canvass before the people amounted to half the sum 
which Mr. Caldwell was to pay him. 

Mr. Carney and Mr. Clarke each testifies that Mr. Caldwell told them after the elec¬ 
tion that his election had cost him $60,000. Mr. Anthony, the mayor of the city of 
Leavenworth, testified that Mr. Caldwell admitted to him that the election had cost 
him over $60,000. Mr. Burke, editor of the Leavenworth Herald, and a supporter of 
Air. Caldwell in his canvass, testifies that after the election Mr. Caldwell told him that 
the money he had paid Mr. Carney was not more than 10 per cent, of the whole amount 
which the election had cost him, and on another occasion that the election had cost him 
more than twice his entire salary. 

The committee have had much difficulty in tracing the money transactions; but the 
evidence shows that various sums, amounting to over $50,000, were drawn under cir¬ 
cumstances that make it probable they were used to procure Mr. Caldwell’s election. 
The sum of $15,000 paid to Mr. Carney has already been stated. The second sum of 
$7,000, which Mr. Len. T. Smith swears was paid to Mr. Carney, and which Mr. Car¬ 
ney denies receiving, and testifies to circumstances showing it was used for the bribery 
of members of the legislature, has also been referred to. It is further shown that three 
or four days before the election took place Air. Caldwell’s agent went into the banking 


432 


SENATE ELECTION CASES. 


house of Scott & Co., at Leavenworth, and drew the sum of $10,000 upon Mr. Caldwell’s 
check for the avowed purpose of taking the money to Topeka by the train that morning, 
which was given as the reason for presenting the check before bank hours. Mi. Jacob 
Smith, banker at Topeka, testified that at 9 o’clock in the evening before the election 
took place, Dr. Morris, of Leavenworth, a very active friend of Mr. Caldwell, drew 
$5,000 from his bank, and that Judge Crozier, of Leavenworth, an influential supporter 
of Mr. Caldwell, and then at Topeka laboring for his election, drew $1,200 from the 
bank after banking hours at the request of Mr. Smith, which was handed over to Mr. 
Smith. The testimony left no doubt upon the minds of the committee that the bankers 
who honored these different checks at Topeka after banking hours understood that the 
money was to be used for political purposes. The evidence further shows that Mr T. 
J. Anderson subsequently received from Mr. Caldwell the sum of $5,000 for his services 
in the election. A draft for $10,000, drawn by the solicitor of the Kansas Pacific Rail¬ 
road Company upon the treasurer of that company, was presented at the Kansas Valley 
Bank of Topeka by Mr. T. J. Anderson on the 23d of January, the day before the 
election, and the money drawn upon it under circumstances which taken in connection 
with other testimony make it probable that the money was used for Mr. Caldwell’s 
election. The committee have no reason to believe that they have traced all the money 
that was used, and in the foregoing statement have taken no account of several small 
sums shown to have been paid by Mr. Caldwell for the expenses of his friends while at 
Topeka. 

Mr. William Spriggs, a former treasurer of Kansas, testified in regard to a self-consti¬ 
tuted committee of six of Mr. Caldwell’s leading friends who met from time to time at 
Topeka during the day and evening for five or six days before the election to confer and 
report progress in electioneering for Mr. Caldwell; that during the meetings of this 
committee it was reported by Mr. Smith what members of the legislature had been 
secured to vote for Mr. Caldwell, how much was offered to others, and how much was 
asked by others. We quote from his testimony: 

“We usually met at 10 o’clock in the morning. We had a roll of the senate and of 
the house and kept them, and we would compare notes, and then such a member of the 
committee would be sent that day or at such a time to see such members of the house 
and such another one to see somebody else, whoever we thought would be the best man 
for that particular place, and then we would meet again at such another hour and report 
what we had done and what success we had had, and in some quite a number of times— 
I do not know how many. In making the report and comparing notes there was one 
member of the committee would report; in calling over the names he would come to 
such and such a man and he would say, ‘We had better not count that man yet; that 
is under negotiation and he is a little too high; I think I can bring him down some.’ ” 

This witness testified to several interviews with Mr. Caldwell, and we quote from his 
testimony: 

“I will just tell you what Mr. Caldwell said to me about it. He asked me if I knew 
*»ny members of the legislature that could be influenced by the use of money for their 
votes, and I told him that I knew two members I believed that had the reputation of 
having been influenced in their votes on former occasions. ’ ’ 

And further on: 

“He said if I found any members that wanted a little money for votes to send them 
to him and to Len. Smith. 

“Mr. Caldwell said there was another class of high-toned gentlemen there in the 
legislature that would not sell their votes, but they put it in this way: that they had 
been to a pretty heavy expense in carrying their election and they would want their 
expenses paid, and if I met with any of that class to send them to him or to Len. ’ ’ 

The testimony of Mr. Spriggs is very full and shows that the canvass of Mr. Caldwell 
was thoroughly corrupt and that money was the chief argument relied upon. Among 
many other things he stated that T. J. Anderson told him that he had paid Mr. Crocker,- 
a member of the house, $1,000 for his vote; that Mr. Crocker afterward backed out and 
handed the money over to a Mr. Carson to be returned to Mr. Anderson; that Carson 
got on the cars, went home, and kept the money. Carson was afterward called by the 
committee and corroborated the statement, admitting that he had received the $1,000 
back from Mr. Crocker to be returned to Mr. Anderson, but that he had kept the money 
himself for his services to Mr. Caldwell. Mr. Carney testifies that in an interview with 
Mr. Caldwell after the election in which he was urging him to procure an appointment 
for one of Mr. Carney’s friends who had voted for him, Mr. Caldwell took from his 
pocket a memorandum-book and appeared to run over a list of names, and coming to 
the man referred to, said, “That man has been paid;” and Mr. Carney understood from 
his manner that he had in this memorandum-book a list of members with the sums 
paid to each; that Mr. Caldwell told him upon another occasion that he had paid Mr. 
Bayers the sum of $2,500 for his vote and Mr. James F. Legate the sum of $1,000 for his 


POMEROY AND CALDWELL. 


433 


vote. Mr. Anthony also swears that in a conversation with Mr. Caldwell that gentle¬ 
man admitted to him that he had paid $2,500 for the vote of Mr. Bayers. There is 
much testimony showing that Len. T. Smith, Frank Drenning, James L. McDowell, 
George A. Smith, and T. J. Anderson, among the most active friends of Mr. Caldwell 
during the canvass, admitted at different times that they had offered money to members 
of the legislature to vote for Mr. Caldwell, in some cases specifying the members to 
whom it was offered and paid and in other cases that offers had been made that had not 
been accepted, and that negotiations were on hand with others which had not been com¬ 
pleted. These men have denied before the committee all conversations and admissions 
of this character and all payment of money to members or oilers to pay them, and sev¬ 
eral members of the legislature who were implicated have expressly denied that they 
received the money or that offers were made them. 

Mr. Caldwell offered testimony showing that Mr. Carney had made threats to have 
him ousted from the Senate; that Mr. Anthony was hostile to him; that Mr. Burke 
had a lawsuit with him growing out of money furnished to Mr Burke about the time 
of the election; and to contradict several statements of Mr. Clarke. The most im¬ 
portant contradictions of the testimony produced against Mr. Caldwell are made by 
members of the legislature who were themselves implicated or by the agents of Mr. 
Caldwell who were directly charged with taking a part in these corrupt practices; 
and there are some contradictions made by witnesses against whom there is no cause 
of sus’picion. But taking the testimony altogether, the committee can not doubt 
that money was paid to some members of the legislature for their votes, and money 
promised to others which was not pa id, and offered to others who did not accept it. 

By the Constitution, each House of Congress is made the judge of elections, returns, 
and qualifications of its members. 

If a person elected to the Senate has not the constitutional qualifications, or if the 
election is invalid by reason of fraud or corruption, the jurisdiction to examine and 
determine is expressly vested in the Senate. 

Another clause of the Constitution authorizes the Senate to expel a member by a 
two-thirds vote. The causes for which a Senator may be expelled are not limited or 
defined, but rest in the sound discretion of the Senate. 

It has been a subject of discussion in the committee whether the offenses of which 
they believe Mr. Caldwell to have been guilty should be punished by expulsion or 
go to the validity of his election, and a majority are of the opinion that they go to 
the validity of his election and had the effect to make it void. Wherefore the com¬ 
mittee recommend to the Senate the adoption of the following resoliition: 

Resolved, That Alexander Caldwell was not duly and legally elected to a seat in 
the Senate of the United States by the legislature of the State of Kansas. 

In conclusion the committee remark that while Mr. Caldwell did things to procure 
his election which can not be tolerated by the Senate, they believe he was as much 
sinned against as sinning. He was a novice in politics and evidently in the hands 
of men who encouraged him in the belief that Senatorial elections in Kansas were 
carried by the use of money. 


[Special session of Senate, March, 1873.] 

Thursday, March 6, 1873. 

Mr. Morton submitted the following resolution for consideration : 

‘ ‘Resolved , That Alexander Caldwell was not duly and legally elected to a seat in 
the Senate of the United States by the legislature of the State of Kansas.” 


Monday, March 10, 


The Senate proceeded to consider the resolution, &c. 

[The debate is found on pages 30-38 of the Congressional Record, vol. i, 
session of the Senate, 43d Cong., 1873.] 

Tuesday, March 11, 


1873. 

special 

1873. 


On motion by Mr. Morton, the Senate resumed, &c. 

[The debate is found on pages 41-47 of the Congressional Record above referred to.] 


The Senatee resumd, &c. 
[The debate is found on pages 


Wednesday, March 12, 1873. 
48-62 of the Congressional Record above referred to.] 


The Senate resumed, &c, 
[The debate is found on pages 


Thursday, March 13, 1873. 
66-77 of the Congressional Record above referred to.] 


March 13, 1873. 

Mr. Alcorn submitted the following resolution for consideration: 

Resolved, That Alexander Caldwell be, aud is hereby, expelled from his seat in 
the Senate of the United States. 

# # * # • * * 


S. Doc. li-28 



434 


SENATE ELECTION CASES. 


Mr. Alcorn submitted the following resolution for consideration: 

Resolved, That the Senate, acting as the judge of the election, returns, and quali¬ 
fications of its own members, has the power under the Constitution to reject Sen- 
ators-elect whose election shall have been proved to the satisfaction of the Senate 
to have been tainted by bribery, fraud, or intimidation. 

Friday, March 14, 1873. 

The Senate resumed, &c. 

[The debate is found on pages 80-90 of the Congressional Record above referred to.] 

Monday, March 17, 1873. 

The Senate resumed, &c. 

[The debate is found on pages 90-102 of the Congressional Record above referred to.] 

Tuesday, March 18, 1873. 

The Senate resumed, &c. 

[The debate is found on pages 104-113 of the Congressional Record above referred to.] 

Wednesday, March 19, 1873. 

The Senate resumed, &c. 

[The debate is found on pages 118-125 of the Congressional Record above referred to.] 

Thursday, March 20, 1873. 

The Senate resumed, &c. 

[The debate is found on pages 126-134 of the Congressional Record above referred to.] 

Friday, March 21, 1873. 

The Senate resumed the consideration of the following resolution, submitted by 
Mr. Morton on the 6th instant, viz: 

“ Resolved , That Alexander Caldwell was not duly and legally elected to a seat in 
the Senate of the United States by the legislature of the State of Kansas.” 

On motion by Mr. Ferry, of Connecticut, to amend the resolution by striking out 
the following words, “was not duly and legally elected to a seat in the Senate of the 
United States by the legislature of "the State of Kansas,” and in lieu thereof inserting 
“be, and he hereby is, expelled from the Senate of the United States.” 

After debate, 

On motion by Mr. Sherman, the Senate proceeded to the consideration of executive 
business. 

[The debate is found on page 137-154 of the Congressional Record above referred 
to.] 

Saturday, March 22, 1873. 

The Senate resumed the consideration of the following resolution, submitted by 
Mr. Morton on the 6th instant: 

“ Resolved, That Alexander Caldwell was not duly and legally elected to a seat in 
the Senate of the United States by the legislature of the State of Kansas.” 

The question being on the amendment yesterday proposed by Mr. Ferry, of Con¬ 
necticut, viz, strike out the following words, “ was not duly and legally elected to 
a seat in the Senate of the United States by the legislature of the State of Kansas,” 
and in lieu thereof insert “ be, and he hereby is, expelled from the Senate of the 
United States,” 

On motion by Mr. Ferry, of Michigan, to amend the amendment by striking out 
the words, “expelled from the Senate of the United States,” and in lieu thereof 
inserting “declared to have been elected a Senator of the United States by the leg¬ 
islature of the State of Kansas,” 

After debate, 

On motion by Mr. Morton, the Senate proceeded to the consideration of executive 
business. 

[The debate is found on pages 154-164 of the Congressional Record above re¬ 
ferred to.] 

Monday, March 24, 1873. 

The Vice-President laid before the Senate a communication from Alexander Cald¬ 
well informing the Senate that ho had transmitted to the governor of Kansas his 
resignation as a Senator of the United States from that State; which was read. 

[The letter of resignation and a statement by Mr. Morton is found on pages 164, 
165 of the Congressional Record above referred to.] 

INVESTIGATION OF THE CHARGES OF BRIBERY PREFERRED AGAINST MR. POMEROY 

IN THE SENATORIAL ELECTION OF 1873. 

[Third session of the Forty-second Congress.] 

Monday, February 10, 1873. 

Mr. Pomeroy rose to a question of privilege, and having addressed the Senate upon 
the subject of certain charges made in connection with the recent Senatorial election 


POMERQY AND CALDWELL. 


435 


in the State of Kansas, submitted the following resolution; which was considered 
by unanimous consent, and agreed to: 

“Resolved, Thatthe charges of bribery and corruption in the late Senatorial election 
in the State of Kansas, relating to the alleged purchase by the Hon. S. C. Pomeroy, 
United States Senator from Kansas, of the vote of A. M. York, a member of the senate 
of that State, be, and the same are hereby, referred to a special committee to be ap¬ 
pointed by this body, consisting of five members; and that the said committee be, 
and are hereby, authorized and directed to investigate the same; and for that pur¬ 
pose to send for persons and papers, summon witnesses, employ a stenographer, and 
make such report to this Senate as in their judgment shall be justified by the law 
and the facts.” 

Whereupon 

The Vice-President appointed as such committee Mr. Frelinghuysen, Mr. Bucking¬ 
ham, Mr. Alcorn, Mr. Thurman, and Mr. Vickers. 

[Mr. Pomeroy's remarks are found on pages 1214,1215 of the Congressional Globe, 
part 2, 3d sess. 42d Cong.] 

Thursday, February 13, 1873. 

Mr. Frelinghuysen, from the select committee to inqiiire into certain allegations 
against Hon. S. C. Pomeroy, reported the following resolution; which was read the 
first and second times by unanimous consent: 

“ Resolved, That the sum of $8,000, or so much thereof as may be necessary to pay 
the expenses of the select committee appointed on the 10th instant to inquire into 
certain charges of bribery and corruption in connection with the recent Senatorial 
election in Kansas, is hereby directed to be paid out of the contingent fund of the 
Senate, under the order of the chairman of said select committee, the vouchers 
therefor to be approved by the Committee to Audit and Control the Contingent Ex¬ 
penses of the Senate.” 

The Senate proceeded to consider the said resolution as in Committee of the Whole; 
and no amendment being made, it was reported to the Senate. 

Ordered, That it be engrossed and read a third time. 

The said resolution was read the third time by unanimous consent. 

Resolved, That it pass. 

Monday, February 17, 1873. 

Mr. Frelinghuysen submitted the following resolution; which was considered by 
unanimous consent, and agreed to: 

“Resolved, That the select committee appointed to inquire into charges of bribery 
and corruption in the recent Senatorial election in Kansas have leave to sit during 
the sessions of the Senate. 

Tuesday, February 18, 1873. 

The Vice-President laid before the Senate the memorial of B. F. Simpson, repre¬ 
senting, as attorney, A. M. York and others before the select committee of the Sen¬ 
ate to inquire into certain allegations against the Hon. S. C. Pomeroy, praying that 
said committee be authorized to receive the statements of certain members of the 
legislature of the State of Kansas that they were offered money or other valuable 
considerations by the agents and friends of the said Pomeroy at the recent election 
of Senator in Kansas. 

On motion by Mr. Sherman that the said memorial be referred to the select com¬ 
mittee to inquire into certain allegations against Hon. S. C. Pomeroy, 

After debate, 

Mr. Sherman having withdrawn the motion submitted by him, 

Mr. Ferry, of Connecticut, submitted the following resolution; which was consid¬ 
ered by unanimous consent, and agreed to: 

“Resolved, That the committee charged with the investigation of the charges 
against Hon. S. C. Pomeroy be directed to inquire into any allegations of bribery or 
corruption by said Hon. S. C. Pomeroy in the recent election for United States Sen¬ 
ator by the legislature of Kansas.” 

[The debate is found on pages 1448-1454 of the Congressional Globe, part 2,3d sess. 
42d Cong.] 

Saturday, February 22, 1873. 

The Vice-President laid before the Senate a resolution of the legislature of Kan¬ 
sas, declaring that it is due to the dignity and honor of that State that Hon. S. C. 
Pomeroy should resign his office of United States Senator; which was referred to 
the select committee to inquire into certain allegations against Hon. S. C. Pomeroy. 

Monday, March 3, 1873. 

Mr. Frelinghuysen, from the select committee appointed to inquire into certain al¬ 
legations againt S. C. Pomeroy, submitted a report (No. 523) thereon. 

Mr. Vickers and Mr. Thurman, members of the committee, each submitted his views 


436 


SENATE ELECTION CASES. 


concerning the charges against Mr. Pomeroy; which were ordered to be printed to accom¬ 
pany the report (No. 523). 

REPORT OF COMMITTEE ON THE CHARGES OF BRIBERY PREFERRED AGAINST MR. 

POMEROY IN THE SENATORIAL ELECTION OF 1873.* 

In the Senate of the United States. 

March 3, 1873. —Ordered to be printed. 

Mr. Frelinghuysen, from the select committee to inquire into certain allegations 
against Hon. S. C. Pomeroy, submitted the following report: 

The committee appointed to investigate the charges of bribery in the recent Senatorial 
election of Kansas, preferred against Senator Pomeroy by A. M. York and by B. F. 
Simpson, respectfully report: 

That without any avoidable delay they have performed the duty imposed upon them. 

The charges preferred by Mr. Simpson consist of a number of alleged specific acts of 
bribery or attempts to bribe. The charge of Mr. York is that of a single act of bribery. 

I. Attention is first invited to the charges of Mr. Simpson. 

Mr. O’Driscoll, a member of the legislature, testifies to four different attempts to bribe 
him. These charges are contested by the testimony of Asa Lowe, David Payne, J. S. 
Hoke, S. P. Brown, and other witnesses referred to hereafter. 

Frank Bacon, a member of the Kansas legislature, speaks of two attempts to bribe 
him, and his charges are contested by Albert H. Horton and other witnesses referred to 
hereafter. 

William H. Bond, a member of the Kansas legislature, speaks of three attempts to 
influence him improperly. These charges are contested by the testimony of John J. 
Murphy, Albert H. Horton, C. A. Rohrabacker, and two other witnesses referred to 
hereafter. 

C. A. Rohrabacker makes the allegation in his testimony that Senator Pomeroy told 
him to give Mr. Davis, a member of the legislature, two or three hundred dollars. That 
this charge is entitled to no weight sufficiently appears by the examination of Mr. Rohra- 
backer’s evidence. 

The committee are unanimously of the opinion that even if the foregoing transactions 
were made out as cases of bribery, there is no sufficient evidence to connect Senator 
Pomeroy with any of them. Mr. William Simpson, a member of the legislature from 
the neutral lands of Kansas, testifies that he went to Senator Pomeroy’s rooms on the 
28th of January, as the election was to occur on the 29th and 30th of January, to inquire 
about the bill in Congress for the relief of the settlers on those lands, and that Senator 
Pomeroy told him that if he would vote for him he would pay the expenses of Mr. 
Laughlin, the agent of those settlers at Washington, and who was supported by the vol¬ 
untary contributions of those settlers; that the number of settlers is about 25,000, and 
that Mr. Laughlin’s compensation is small. On this charge there is some difference of 
opinion in the committee; the majority of the committee holding that if the charge was 
uncontradicted and unexplained, while it would unquestionably present the case of an 
improper appeal to ‘ 1 motive, ” it is at least questionable whether it would be the crime 
of attempting to bribe—not because of the small distributive amount of Mr. Simpson’s 
contribution, but because he was under no obligation to pay anything. If the sum Mr. 
Simpson was to pay was a tax, the case would be different. But Senator Pomeroy op¬ 
poses his evidence to that of Mr. Simpson, and testifies that Mr. Simpson told him how 
little money Mr. Laughlin, the agent, had, and that he had so written him, and that he 
had no means to continue at Washington save by voluntary contribution, and that he 
(Pomeroy) told Simpson he was a friend of the settlers and would in any event contribute 
to his support, and that when he reached Washington he did accordingly give Mr. 
Laughlin $50; and Mr. Pomeroy then adds in his testimony, “and hence it is certain 
that my contribution had no relation to any man’s vote.” 

A majority of the committee are of opinion that under this state of facts, and under 
the evidence, this charge of bribery is not affirmatively sustained. The witnesses, Judge 
Albert H. Horton, George T. Anthony, John A. Martin, and Mr. Legate, the confidential 
friends and advisers of Mr. Pomeroy in the canvass, and in a position where they would 
naturally know, state that they have no knowledge of Mr. Pomeroy using, or author¬ 
izing to be used, any improper influences in the election. 

And Mr. Pomeroy most positively denies that he ever, directly or indirectly, paid or 
promised to pay any individual one dollar, or any other sum, for his vote for him at the 
late Senatorial election. 


* Taker from Senate Reports, 42d Cong., 3d sess., No. 523. The evidence accompanying the report 
Is here omitted 



POMEROY AND CALDWELL. 437 

A majority of the committee are of opinion that none of the charges preferred ss afore* 
said by Mr. B. F. Simpson against Mr. Pomeroy have been sustained. 

II. We now come to the consideration of the specific charge of bribery made by Mr. 
A. M. York. 

Mr. York’s statement is that Mr. Pomeroy gave him, on Monday, the 28th of Janu¬ 
ary, $2,000, and on Tuesday, the 29th of January, $5,000, as a bribe to vote for him in 
the joint convention on Wednesday. 

Mr. Pomeroy’s statement is that he did give him the money at the times and in the 
amounts stated, not as a bribe, but to carry to Mr. Page as a loan from Pomeroy to aid 
Page in the purchase of thirty bonds of the United States of the denomination of $1,000, 
Page having $25,000 in currency. 

The question the committee is to determine is not which, if either, of these two state¬ 
ments, painfully irreconcilable, is in all its details true; but the question is whether, 
taking all the testimony together and weighing it, Mr. York has sustained his charge. 

There are circumstances that legitimately affect the credibility of Mr. York in this trans¬ 
action. John M. Holmes testifies to hearing Mr. York say after the Senatorial election 
that ‘ ‘ he had determined to defeat Mr. Pomeroy, cost what it might, and that his ex¬ 
posure of Mr. Pomeroy was the work of time.” Mr. York testifies that he, W. A. John¬ 
son, Gr. C. Horton, Major B. F. Simpson, spoken of as a candidate for the United States 
Senate, had a consultation on Monday evening, January 28, and it was agreed that if 
Pomeroy should offer York money he was to take it and expose him in the convention on 
Wednesday. It was, in the language of Mr. York, the conclusion of those gentlemen 
there, at that time, that there was no other way of defeating him, and that he would be 
elected; and it was further there agreed that the money should be appropriated to the 
school fund of Kansas, and they pledged themselves to secrecy. 

Chester Thomas says that Mr. B. F. Simpson, who acted as counsel for Mr. York in 
this investigation, and is named by him as above, said to him, “Well, we could not afford 
to have Pomeroy elected; we had to defeat him some way; we were beat, and we had to 
do something.” 

I. L. Sharp gave like testimony. It appears that the plan was kept secret until Wednes¬ 
day at the joint convention, when an excited exposure was sprung upon that body and 
the money was exhibited by Mr. York, and he made the statement that members of the 
legislature had Mr. Pomeroy’s money burning in their pockets, of which fact we not only 
have no proof, but it appears that Mr. York had no such knowledge. It appears that 
an effort wa a made by members to adjourn and also to have a recess for an hour or two, 
that the truth of the allegations made might be ascertained, and that Mr. York resisted 
these efforts, for fear, as he says, that Mr. Pomeroy might be able to appoint his own 
successor. Thus, even if Mr. York’s, and certainly if Mr. Pomeroy’s, statement be taken 
as true, Mr. York was the principal actor in an effort not only to betray and defeat Mr. 
Pomeroy, but to deprive the State of Kansas of its free and deliberate choice of a Senator. 

These circumstances do not prove that Mr. Pomeroy did not bribe Mr. York, but 
they do impair the credibility of Mr. York as a witness, for when a line of deception 
has been entered upon no one can say when it is dropped and the golden thread of truth 
adopted. 

The truth which the committee seek is as to what occurred in the room on Monday 
and Tuesday when Pomeroy delivered the money to York. They were alone, and con¬ 
tradict each other. There is, however, evidence relating to Mr. York’s purpose in going 
to Mr. Pomeroy’s room. Mr. York says that Mr. Hairgrove told him that Mr. Pomeroy 
would be glad to have a business interview with him, and that invitation assured him 
(York) that Mr. Pomeroy was about to offer him money, and was the reason of the pri¬ 
vate consultation, before alluded to, with William Johnson, B. F. Simpson, and J. C. 
Horton, when the plan of operations was adopted. William Johnson says Mr. York said 
at that consultation that Hairgrove had invited him to Pomeroy’s room on a business 
matter, or to have a business interview, that night, and from that they all concluded 
that that meant a money proposition. J. C. Horton says York did not give the name 
of the person who had invited him to Mr. Pomeroy’s room. B. F. Simpson, the other 
person present at the consultation, acted as counsel for Mr. York before the committee, 
and was not sworn. 

Mr. Hairgrove says he did not give any invitation to Mr. York to call at Mr. Pomeroy’s 
room; that he had a conversation with Mr. York and told him that if he wanted to see 
Mr. Pomeroy he would so tell Pomeroy, but that he never took any message from Mr. 
Pomeroy to Mr. York. 

Mr. J. Q. Page testifies that after his interview with Mr. Pomeroy on this Monday he 
saw Mr. York and told him that Mr. Pomeroy would probably give him a package of 
money for him (Page) and that he wanted him (York) to bring it to him. This York 
denies. 

Mr. York’s testimony is, in effect, though not in words, that on Monday evening be- 


438 


SENATE ELECTION CASES. 


fore he had the interview with Pomeroy he not only supposed he was about to bribe 
him, but was so certain and so assured of it that a pledge of secrecy as to it was entered 
into with his associates as to the coming event; that it was determined that the bribery 
should not be disclosed on Tuesday in the senate or house, but should first be made 
known in joint convention on Wednesday; that it was assumed the amount was to be so 
considerable that it would be a suitable contribution to the school fund, to which it was 
by agreement destined, and that to make proof thereafter clear that he had received the 
money from Mr. Pomeroy he was searched at 7 p. m. and found to have but about $40 on 
his person; after which search, it maybe remarked, York went about the town and saw 
some two hundred persons before he saw Mr. Pomeroy at 12 p. m., and the only founda¬ 
tion for this assurance of the coming bribe, according to Mr. York, was the fact that Mr. 
Hairgrove had invited him to a “ business interview ” to be had with Mr. Pomeroy that 
evening; and this, as before stated, Mr. Hairgrove denies. 

The committee are at a loss to discover from whence Mr. York derived this assurance 
that he was to be bribed, and that it was to be that night, and to be in a large sum, from 
any fact consistent with his statement. If it be true, as Mr. Page testifies, that he had 
that afternoon told him that Mr. Pomeroy would probably give him a package of money 
to bring to him, one can more readily understand this confidence that he was to receive 
money. But that he had any such notice Mr. York denies. If Mr. York was acting on 
information Page gave him, there is no evidence that he communicated that information 
to his associates. 

Another improbability in Mr. York’s statement is that Mr. Pomeroy gave him $7,000 
in cash, not for his unconditional support in the senate on Tuesday and in joint conven¬ 
tion on Wednesday if there should be a vote there, but that on Monday night he agreed 
to give him $8,000 for his vote under a stipulation that he might vote against him in 
the senate on Tuesday (when his vote might be as desirable as on Wednesday), and that 
he was at liberty even to reconsider his conclusion as to voting for him on Wednesday, 
and that on such an understanding he paid him on Monday $2,000, and on Tuesday, after 
he had that day voted against him, $5,000 more. And Mr. Pomeroy did this while it 
appears in evidence, beyond question, that he was either honorably refraining from all 
corrupt influences to promote his election or that he was carefully on his guard against 
being entrapped in the use of money, and while it appears that Mr. York was attending 
the anti-Pomeroy caucus, acting as its secretary, and known by Mr. Pomeroy to have 
been opposed to him. 

Now we come to the consideration of the statement of Mr. Pomeroy that he gave Mr. 
York this $7,000 to take to Mr. Page to enable him to purchase bonds of the United 
States to aid in the establishment of a national bank. 

In considering this statement Mr. Pomeroy is entitled, to the extent that other men 
are, to the presumption of innocence—a presumption somewhat strengthened by the fact 
that his accusers have failed to sustain their other charges of bribery against him in the 
same election. 

Mr. Page was a man of means and a banker, living at Independence. Mr. McBartney, 
of the national bank at Junction City; Mr. Shaw, of the Paola National Bank, and Mr. 
Legate, the clerk of Mr. Pomeroy’s committee, all heard Mr. Page conversing with 
Mr. Pomeroy during the Senatorial canvass at Topeka about starting a national bank at 
Independence, part of the conversation relating to the amount of capital required, but 
not as to Mr. Pomeroy advancing any part of the capital. 

Mr. Maxson testifies to Mr. Pomeroy inquiring of him prior to 27th January as to Mr. 
Page’s pecuniary responsibility; that he told Mr. Pomeroy that he was responsible and 
trustworthy. 

Mr. Page lived in the same town with Mr. York, and they were friends. It appears 
by Mr. York’s testimony that he called on Mr. Pomeroy with Mr. Page some ten days 
before the occurrence to which our investigation is directed. Mr. Page testifies that he 
requested Mr. Pomeroy’s influence to obtain a national bank at Independence; that Mr. 
Pomeroy told him it would require $50,000, but if he had $30,000 in United States 
bonds he could pay the balance in installments. Page said that he could raise $25,000 
in currency, and that Mr. Pomeroy said he would help him to the balance, as he had 
helped other young men, and that Mr. Pomeroy said he expected to have money before 
the election, and would let him have it. 

On Monday, Mr. Page says, he went to Mr. Pomeroy and told him he was going home, 
and it was arranged that Mr. Pomeroy was to send him the money by Mr. Bell or Mr. 
York. It is to be observed that Mr. Pomeroy then had in his possession the $7,000; 
and that fact should receive its weight as affecting Mr. Pomeroy’s statement. And Mr. 
Page says that, on the same day, he told Mr. York that it was probable that Mr. Pomeroy 
would hand him (Mr. York) a package of money for him; and if so, he wished him to 
bring it to him. 

Mr. Page says that he on Monday told Mr. Hairgrove, who was also a promoter of Mr. 


POMEROY AND CALDWELL. 


439 


Pomeroy’s election, that he was going home, hut was persuaded by Mr. Hairgrove to 
stay; that he did not stay at the same hotel with Mr. Pomeroy, and did not see him 
again to speak with him while at Topeka, though he did see him from the door of Mr. 
Pomeroy’s room. v 

Mr. Pomeroy states, on his oath, that Monday evening, January 27, Mr. York called 
on him, having sent word that he was coming, and informed Mr. Pomeroy of what was 
going on at the anti-Pomeroy caucus; spoke of the favor Mr. Pomeroy had granted his 
friend Page, and said that Page had requested him to get the money and forward it to 
him at Independence, and that he (York) would leave soon after the election for home. 

Mr. Pomeroy told him he was not prepared at that time to furnish it, although he said 
he had promised it to Page before he (Pomeroy) left the city. Mr. York said perhaps 
Mr. Pomeroy had no conlidence in him. Mr. Pomeroy assured him of his confidence 
and said that he could furnish $2,000 at any time, and thought he should be able to pay 
the $5,000 next day, and paid him $2,000 then. It is proper to notice that on this Mon¬ 
day Mr. Pomeroy had the $7,000 with him. 

During the next day, Mr. Pomeroy says, he sent Mr. Knight and Mr. Lemuel Pomeroy 
to look for Mr. Page to inform him of the transaction, if he had not left the city, and to 
see if it was all right. They could not find him. Neither Lemuel Pomeroy nor Knight 
was examined on this point. That on the afternoon of that day (Tuesday) Mr. Pomeroy 
paid Mr. York the $5,000 in currency, in packages of $1,000, with the hank-mark on 
them. 

When the alleged exposure was made in the convention, Judge Horton, who was pres¬ 
ent, says that when a recess was refused, as soon as he could get out of the crowded house, 
he went to Mr. Pomeroy’s room and told him what had happened; that Mr. Pomeroy was 
overwhelmed; that no one defended him, and said he had done nothing wrong; that while 
they were talking a messenger came in and said that the convention was voting for Sena¬ 
tor; that there being much excitement at the hotel, Mr. Pomeroy went to a private house, 
and as soon as there Mr. Pomeroy told him substantially what Mr. Pomeroy has stated 
before this committee—that Mr. Pomeroy said that he supposed Mr. Page, now thinking 
he was going to lose the money, might go back on him and he would have trouble; but 
if Page would stand up to the agreement there was no question that before the country 
and his friends he would be fully vindicated. 

There are several questions that arise in this transaction which are not satisfactorily 
explained. 

Why did not Mr. Pomeroy deliver the entire $7,000 to Mr. York on Monday, instead 
of $2,000 on Monday and $5,000 on Tuesday? 

It is true Mr. Pomeroy says the $5,000 was locked up in his valise and the key with 
his clerk, but the clerk was near; and it is also true that Mr. Pomeroy says he sent out 
on Tuesday to find Mr. Page, if he was in town, to see that it was ail right, and could 
not find him; and he says that when he hesitated in paying Mr. York anything on Mon¬ 
day evening he considered it a want of confidence. The same difficulty exists, too, if we 
adopt Mr. York’s statement. On the theory oi his story, why did not Mr. Pomeroy pay 
the whole $7,000 on Monday? He says he only paid him then $2,000. 

Why did not Mr. Page, who was present at the convention when the alleged exposure 
was made, state that Mr. York was to bring him a package of money from Mr. Pomeroy? 

It is true it was not certain the money was to be sent; the sum was not definitely 
fixed; it was to be from eight to ten thousand dollars. Neither was it known to him 
whether it would be sent by Mr. Bell or Mr. York; and yet it would seem natural for 
him to have spoken. 

How did it happen that no one was present at either of the two interviews between Mr. 
York and Mr. Pomeroy ? Mr. Pomeroy speaks of that fact as merely accidental, he not 
being entirely certain whether any one was present or not. It is clear, however, that 
they were alone, and it is unfortunate for the solution of this question that they were so. 

How did it happen that Mr. Page and Mr. Pomeroy, holding their relations, did not 
meet when both i n Topeka from Monday to Wednesday ? This may have been accidental, 
if such was the fact. Mr. Page says that he did go to Mr. Pomeroy’s rooms, but that 
there was a great press of people there, so that he could not reach him. 

Why did not Mr. Pomeroy deliver the $7,000 to Mr. Page himself when he called on 
Monday ? He then had the money. 

Why did not Mr. Pomeroy give Mr. York the money he was to take to Mr. Page in a 
sealed package? 

Mr. Pomeroy may have desired, in view of the coming election, to conciliate Mr. York 
by showing him that he was assisting his Mend Page, by showing him that he was aid¬ 
ing in establishing a bank in his town, and by reposing confidence in him; but even the 
suggestion of this improper motive is not a satisfactory answer to these questions. 

There are also some discrepancies between the statements of Mr. Pomeroy and Mr. 
Page, such as to whether it was in the morning or in the afternoon of Monday that Mr. 


440 


SENATE ELECTION CASES. 


Page last called on Mr. Pomeroy; perhaps they are not other than such as show the ab 
sence of arrangement between them as witnesses. These are questions, and there may 
be others, to which the committee do not find satisfactory answers. 

The committee, some of whom were absent on other duty from time to time as the evi¬ 
dence was being taken, did not receive the printed testimony until the morning of Satur¬ 
day, the 1st instant, and have given the evidence such examination as in the press of 
business they have been able, which has been by no means as thorough as was desirable. 

The committee, bearing in mind while examining the evidence that the whole trans¬ 
action, whatever view be taken of it, is the result of a concerted plot to defeat Mr. Pomeroy, 
and remembering that the burden of proof is on the party making the accusation, have 
come to the conclusion that Mr. York has not sustained his charge by sufficient proof, 
contradicted as it is by the evidence of Mr. Page and Mr. Pomeroy. 

The committee report herewith the evidence taken and the briefs of the respective 
counsel. 

FRED’K T. FRELINGHUYSEN. 

WM. A. BUCKINGHAM. 

J. L. ALCORN. 

VIEWS OF ME. VICKEES. 

I cannot forbear saying that this case is not entirely free from difficulty and embar¬ 
rassment; but as a preliminary remark, I can say that I do not think any connection has 
been proved between the persons alleged to have offered bribes, being the friends of Mr. 
Pomeroy, and that Senator. Most, if not all, these instances of attempt to bribe have 
been denied by the persons who it was said made the offer. Nothing has been traced 
to Mr. Pomeroy, and there is no difficulty in acquitting him of all charges of that char¬ 
acter. The counsel for the prosecution, when the testimony was admitted, proposed to 
connect Mr. Pomeroy with them, directly or circumstantially. The result proved a 
failure to do so. I do not think that the offer of Mr. Pomeroy to assist Mr. Laughlin, an 
agent of certain poor settlers upon neutral lands in Southern Kansas, if Mr. William 
Simpson would support him for Senator, in connection with the surrounding circum¬ 
stances, is of such a character as to amount to a direct offer to bribe, although the 
motive held out to Mr. Simpson cannot be approved. Mr. Pomeroy denies substantially 
any motive or attempt to influence Mr. Simpson’s vote, in the conversation held be¬ 
tween them. 

I dismiss this part of the case, and come to the charge of actual bribery made by Mr. 
York against Mr. Pomeroy. Mr. York has testified before the committee, unequivo¬ 
cally, to the offer of a bribe by Mr. Pomeroy to him for his vote, as a member of the 
legislature of Kansas, for Mr. Pomeroy for the place of United States Senator; that Mr. 
Pomeroy paid him $2,000 on Monday night preceding the election on Tuesday, and 
$5,000 on Wednesday, before the meeting of the joint convention of the legislature on 
that day; that he (Mr. York) produced the money before the convention, stated all the 
circumstances, and declared that he knew of five or six members of the convention who 
had Mr. Pomeroy’s money burning in their pockets, and he would disclose their names 
at the proper time. Mr. Pomeroy, in his testimony before the committee, denied emphat¬ 
ically the truth of Mr. York’s statement, and averred that he handed him $2,000 and the 
$5,000 to him to be delivered to Mr. Page, a banker at Independence, to whom he had 
promised to loan the money to aid in establishing a national bank at Independence, in 
Kansas. Mr. Page swears that he told Mr. Pomeroy to send the money by Mr. York, 
or Mr. Bell (a member of the legislature), and that he told Mr. York that he had told Mr. 
Pomeroy, on Monday preceding the election, to hand the money over to him, to be carried 
to Mr. Page. Mr. Page also swears that he did not leave Topeka till Thursday, the day 
after the election, but did not converse with Mr. Pomeroy after Monday. Mr. Page had 
several conversations with Mr. Pomeroy upon the subject of establishing a national bank— 
some of them in the presence of others. 

The following is a statement of part of the cross-examination of Mr. Pomeroy before 
the committee: 

“Question (to Mr. Pomeroy). You say that on Monday night you gave to Mr. York 
$2,000; where, at that time, were the $5,000?—Answer. They were in my valise; not 
in my trunk. 

‘ ‘ Q- Why did you not give him the$5,000 as well as the $2,000 ?—A. I had not it with 
me in the room at the time, and I intended to see Mr. Page the next morning. * 

“ Q- In what room was it that you gave Mr. York the $2,000?—A. In what they call 
my private room. 

“Q. Your reception room ?—A. No; back of that. 

“ Q. Where was your valise that contained the $5,000?—A. It was in a closet, or in 
a place which I extemporized for a closet, behind my trunk. 

“Q. In the same room ?—A. Yes, sir. 


POMEROY 4.N1) CALDWELL. 441 

‘‘ Q. Then why did you not give him the $5,000 at the same time that you gave him 
the $(3,000?—A. For the reason that I wanted to see Mr. Page. 

“ Q. Had Mr. Page told you, Mr. Pomeroy, you could give the money to Mr. York?— 
A. Yes, sir; he had told me I might send it to him by Mr. York; that he was going to 
leave town, and to send it by Mr. York or by Mr. Bell. 

“ Q* When was it that Mr. Page told you to send the money by either of those gen¬ 
tlemen?—A. On Monday. 

“Q. In the forenoon ?—A. In the forenoon, the same day. 

“ Q. You say you did not give him the $5,000 because you expected to see Mr. Page 
the next day?—A. Yes, sir. 

“Q. You knew, then, that Mr. Page had not left Topeka then?—A. I did not know 
whether he had or not. He had told me he thought he should go. I sent out for him 
on Tuesday twice, to find out whether he had gone. 

“ Q. As he had told you you might send the money by Mr. York, why did you hesi¬ 
tate to give Mr. York the whole $7,000?—A. For two reasons: First, I wanted to know 
if it was all right from Mr. Page; and then I had not the $5,000 accessible at that time. 

“ Q. Did I not understand you that the $5,000 were in the same room ?—A. Yes, sir; 
but in a valise. I kept money and private papers in a valise which Mr. Lemuel Pome¬ 
roy, my clerk, had the control of and key of; but the trunk I had the key of myself. 

“ Q. You had not the key of the valise in which the $5,000 were?—A. No, sir; I had 
not. 

“Q. Where was Mr. Lemuel Pomeroy at that time?—A. He was in the reception 
room or abed. He was about the hotel. 

“ Q. I understand you took no memorandum from Mr. York that you had delivered 
the money to him?—A. I did not. 

“ Q. Was this a subscription to the stock of that bank?—A. No, sir. 

“ Q. It was a loan ?—A. It was a loan. 

‘ ‘ Q. Interest-bearing or not ?—A. I had made no particular arrangement. I told him 
I would help him to money enough with what he had got to buy thirty bonds. He was 
to settle with me after he got the currency here. 

“Q. How long was he to have the money?—A. I think it was thirty or forty days. 
It generally takes thirty days after putting the bonds in to get the currency from the 
Department.” 

I have not referred to all the testimony, but only a small portion of it, the whole 
being printed, and to which the Senate is referred; but I have noticed the material por¬ 
tions of Mr. York’s and Mr. Pomeroy’s and Mr. Page’s, so as to bring the point at issue 
more distinctly and prominently into view. It will be seen that Mr. York stated to the 
joint convention that he knew of five or six members of that body who had Mr. Pom¬ 
eroy’s money burning in their pockets, and at a proper time he would disclose their 
names. A few days subsequent, when told by a member that his statement of that fact, 
and the manner of making it, impressed his mind with the supposition or belief that he 
(York) had received his information from Pomeroy, he made no reply nor entered into 
any explanation. Mr. York, when interrogated before the committee, does not remem¬ 
ber the statement made in reference to the bribery of other members, and pleaded excite¬ 
ment as an excuse for his defect of recollection. That part of the declarations of Mr. 
York before the convention had, no doubt, its effect upon their minds, coupled with the 
revelations about the money transaction and the production of the funds, and doubtless 
he intended it should have. He had Mr. Pomeroy’s defeat in view, and as auxiliary to 
other statements they were introduced. This additional charge of bribery of other 
members was of such a notable character which, if true, could not so soon be forgotten. 
It would require the largest measure of charity to believe that Mr. York could have for¬ 
gotten them, or the charge which he made. The conclusion is inevitable that he stated 
as facts what he did not know, or, in other words, that he manufactured the statement 
for the occasion. Mr. Pomeroy denies all the material facts, and asserts that the money 
was handed to Mr. York to be taken to Mr. Page. He denies explicitly every offer 
directly or indirectly to bribe Mr. York, or the offer or delivery of money for his vote. 
But there are circumstances connected with the transaction that cast a sombre hue over 
portions of it. The lateness of the hour; the place, the room of Mr. Pomeroy; the ab¬ 
sence of all witnesses; the fact that Mr. Page was then in Topeka; the delivery of a por¬ 
tion of the money, and the balance on Wednesday morning, the day of the meeting of the 
convention; the limited acquaintance of the parties; no receipt or memorandum taken; 
the fact that Mr. Borland loaned Mr. Pomeroy $5,000 on the Friday preceding (Mr. Pom¬ 
eroy states, in his testimony, he wanted it for Mr. Page); the fact that on Saturday fol- 
lowinghe did not inform Mr. Page he had the money; that on Monday he told Mr. Page 
that he expected to receive the money before he left Topeka, and was told by Mr. Page 
to send it by Mr. York or Mr. Bell (Mr. York residing in the same town with Mr. Page— 
Independence), when he had the Friday before borrowed the money from Mr. Borland, 


442 


SENATE ELECTION CASES. 


and had it in his possession at the time he told Mr. Page he expected to receive it; and 
that the money was not inclosed in any envelope; the fact that Mr. Pomeroy states 
nothing was said about security or interest (although the parties had not known each 
other for more than one or two years, and resided at different and distant points); that 
Mr. Page states he was to have it without interest; the additional facts elicited in the 
cross-examination of Mr. Pomeroy by one of the committee, that the reason he did 
not pay over the whole $7,000 to York on Monday night, but only $2,000, was that he 
wanted to see Mr. Page first; and, on further cross-examination, that he had not the 
key of the valise where the $5,000 was placed; first that the money was not in the same 
room (the back room) where the parties were, and afterwards that it was. These-and 
other circumstances connected with the affair show discrepancy apparently irreconcilable. 
Mr. Pomeroy, when testifying, would naturally state the case as favorable to himself as 
it could be done consistently with the facts. 

On the other hand is to be considered the circumstances leading to, attendant, and 
consequent upon the alleged receipt of money by Mr. York from Mr. Pomeroy. Four 
persons conspired to defeat Mr. Pomeroy’s election to the Senate of the United States; 
the plan of operations was concocted at night, and Mr. York, as the chief conspirator, 
was selected or volunteered to carry out the programme. He went to Mr. Pomeroy’s 
rooms very late at night. His object was to obtain Mr. Pomeroy’s confidence and his 
money, and then betray him. He induced Mr. Pomeroy to believe that he would be his 
friend, but that he wanted money. He asserts that he sold his promised support to Mr. 
Pomeroy for $7,000; received the $2,000 before he left, and the balance, of $5,000, the 
next day; that he took the money to the joint convention, made an exciting speech and 
exposure, and strenuously opposed all motions for adjournment or recess to allow Mr. 
Pomeroy an opportunity for denial or explanation. Although a witness who acknowl¬ 
edges the turpitude of his conduct, and the iniquitous means he resorted to to deceive 
and induce another to commit an offense that he might betray him, may possibly be 
believed, yet the mind cannot relieve itself of the unfavorable effect which the facts 
stated and the moral taint of the witness must produce. Detectives, it is said, are 
employed by governments and by individuals, and to use stratagems and devices to de¬ 
tect suspected offenders. But the cases, I presume, are not exactly parallel. Mr. York 
and Mr. Pomeroy were personal and political friends, and Mr. York admits that he sought 
Mr. Pomeroy and exerted his influence to induce him to commit a crime by the offer of 
a very valuable consideration. A detective may lay his plans and place temptations in 
the way of one he wishes to entrap, but I do not suppose that he solicits and bargains for 
its commission. I should be reluctant to credit the testimony of one who confessed to 
such practices, unless he was strongly corroborated. The true theory should be that the 
evidence of one who acknowledges his own wrongful and vicious purposes and acts to 
seduce another into the commission of crime should be corroborated in the essentials ot 
his testimony. While he may be competent to testify, his credibility is sensibly and 
materially affected. Unless some such rule prevail, any citizen in the community might 
be unj ustly convicted upon the false testimony of a sharp but unprincipled witness. Char¬ 
acter alone will sometimes outweigh the charge of an accuser, unless corroborated. In 
my opinion, neither governments nor individuals should countenance the violation of 
truth or morality to accomplish any purpose. 

Taking all the testimony and circumstances into consideration, and weighing them 
carefully in equal scales, I cannot decide that the guilt of Mr. Pomeroy is established 
beyond a reasonable doubt. If I were a judge or a juror, I could not convict upon such 
testimony. The duty of the committee was to take the testimony and report upon it 
to the Senate, with their convictions of its bearing and effect. They have, in the short 
time allowed, and under difficulties and incoveniences arising out of their Senatorial 
duties and engagements on other committees, and some delay in receiving the printed 
testimony, been prevented from giving as thorough a consideration of the evidence as 
they desired to do. But considering the nature and character of the testimony for the 
prosecution and defense, with all the surrounding circumstances, I have not been able 
to conclude, beyond a reasonable doubt, that the charges against Mr. Pomeroy have been 
sustained. 

G. VICKERS. 


VIEWS OF ME. THUBMAN. 

I cannot agree with the report of the majority of the committee. I think that the 
testimony proves a corrupt offer by Mr. Pomeroy to Senator Simpson, of the Kansas legis¬ 
lature, to obtain the vote of the latter. 

I also believe that the testimony convicts Mr. Pomeroy of having attempted to bribe 
Senator York, of that legislature, to vote for him; that Pomeroy delivered to York $7,000 
is not denied. The only material issue between them is, for what purpose was the money 


POMEROY AND CALDWELL. 


443 


delivered ? York says that it was a bribe for his vote. Pomeroy says that it was handed 
to York to carry it to one Page, whom Pomeroy had promised to assist in starting a 
national bank. In my judgment the statements of Mr. Pomeroy on this subject are con¬ 
tradictory, are inconsistent with Page’s statements; are so opposed to the usual circum¬ 
stances attending a business transaction, and are so improbable, especially in view of the 
circumstances attending the Senatorial election, that reliance cannot be placed upon 
them. Perceiving no good to result from an elaborate statement of the testimony and 
reasons that bring me to these conclusions, I refrain from making such statement. Were 
there time for the Senate to consider the subject fully I should feel it my duty to give at 
large the reasons for my convictions. But this is the last day of the session and of Mr. 
Pomeroy’s Senatorial term. Before the reports can be printed, much le>s considered, the 
session will be at an end. I therefore say no more than to repeat the conclusions to which 
my mind, has, reluctantly and painfully, been brought. 


444 


SENATE ELECTION CASES, 


[Second and third sessions Forty-second Congress, and special session, March, 1873 J 

POWELL CLAYTON, 

Senator from Arkansas from March 25,1871, till March 3,1877. 


January 9,1872, the Joint Select Committee to inquire into the Condition of the late Insurrection 
ary States reported to the Senate that certain testimony taken by them tended to impeach the offi 
cial character and conduct of Mr. Clayton ; that the committee had not prosecuted the inquiry be¬ 
yond taking the testimony of two witnesses, deciding that the subject-matter did not come within 
the limits of the investigation they were directed to make; that they reported to the Senate this tes¬ 
timony, recommending that the Senate take such action as it deem proper. The Senate resolved 
that the report and testimony be referred to a select committee to investigate and report upon the 
charges. June 10,1872, the committee reported that the investigation was completed, but that the 
committee were unable at that time to arrange the testimony and report back such parts of it as 
were relevant; that they held it but the plainest justice to Mr. Clayton that they should make known 
the general result of their investigation ; that they consequently submitted a partial report, reserv¬ 
ing the right to submit a final report with the testimony, and recommending that the Senate delay 
action on the subject until such time; that the charges were not sustained, and that the testimony 
failed to impeach the Senator’s official conduct or character. There was a minority report, which 
did not enter into the merits of the case, but held that the action of the committee in reporting at 
that time was premature. February 26,1873, the committee submitted the evidence, and made a 
final report, recommending the adoption of a resolution that the charges referred to the committee 
were not sustained, and that they be discharged from the further consideration of the subject. 
There was a minority report holding that the charge made of procuring his seat by the corrupt use 
of money was sustained by the evidence, and that he also obtained 5 votes, which made his ma¬ 
jority, by giving to electors lucrative offices when he was governor, as a consideration for their 
votes. March 25,1873, the resolution was agreed to. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journals, 42d Cong., 2d and 3d sess., and the reports of the committee from Senate 
Reports, 3d sess. 42d Cong., No. 512. 

Special references to the debates of each dav are inserted below. 


[Second session of the Forty-second Congress.] 

Tuesday, January 9, 1872. 

Mr. Scott, from the Joint Select Committee to investigate Alleged Outrages in South¬ 
ern States, submitted the following report (No. 15): 

At a meeting of “ the Joint Select Committee to inquire into the Condition of the late 
Insurrectionary States, so far as regards the execution of the laws and the safety of the 
lives and property of the citizens of the United States,” convened at their room in the 
Capitol on the 22d of September, 1871, Messrs. Scott, Pool, and Blair were appointed a 
subcommittee to examine the witnesses then in attendance; which subcommittee organ¬ 
ized on the 23d of September, 1871, and examined Edward Wheeler, of Arkansas. On 
the 25th of September, 1871, said subcommittee examined William G. Whipple, of 
Arkansas. 

The testimony of these witnesses tends to impeach the official character and conduct 
of a member of the United States Senate from the State of Arkansas, and also to affect 
the right of a member of the House of Representatives from that State to retain his 
seat in the House. Other evidence of the same character was offered, and one of the 
gentlemen affected by this testimony claimed the right to bring witnesses before the 
committee to contradict or explain the same. The committee, however, upon consid¬ 
eration decided that the subject-matter to which said testimony related did not come 
within the limits of the investigation they were directed to make, and therefore declined 
to prosecute the inquiry any further, discharging a witness who had been subpoenaed 
and was then awaiting an examination. 

The joint select committee, pursuing what they deemed to be the proper parliament¬ 
ary course, at a meeting on December 21, 1871, adopted the following resolution: 

“ Resolved , That the committee report the testimony taken before the committee affect¬ 
ing Senator Clayton and Mr. Edwards, a Representative from Arkansas, to the Senate 
and House of Representatives, with a recommendation that each House take such action 
as it may deem proper. ’ ’ 

Agreeably to this resolution of said joint select committee, the undersigned, the 
chairman on the part of the Senate and the chairman on the part of the House of Rep¬ 
resentatives, beg leave to submit the testimony* hereto annexed of Edward Wheeler 
and William G. Whipple, both of the State of Arkansas, said Wheeler and Whipple 


* Found on pages 2-38 of report No. 15, 2d sess. 4 2d Cong. 



POWELL CLAYTON. 


445 


having been the only witnesses from that State who were examined by the commit¬ 
tee, to the Senate and House of Representatives respectively, for such action as each 
House may deem advisable. 

JOHN SCOTT, 

Chairman on the part of the Senate. 

LUKE P. POLAND, 

Chairman on the part of the House of Representatives. 

The Senate proceeded, by unanimous consent, to consider the report, and Mr. Clayton, 
having addressed the Senate on the subject thereof, concluded his remarks with the re¬ 
quest that a select committee be appointed to investigate the allegations against him 
therein referred to; 

Whereupon 

Mr. Wright submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

‘ 4 Resolved , That the report of the committee and the testimony accompanying be re¬ 
ferred to a special committee of three, with power to send for persons and papers, to 
investigate and report upon the charges therein contained against Hon. Powell Clayton, 
a member of this body.” 

Ordered , That the committee be appointed by the Vice-President. 

[The debate, including a statement by Mr. Scott and a speech by Mr. Clayton, is found 
on pages 311-318 of the Congressional Globe, part 1, 2d sess. 42d Cong.] 

Wednesday, January 10, 1872. 

The Vice-President appointed Mr. Wright, Mr. Morrill of Maine, and Mr. Norwood 
the select committee authorized by the resolution of yesterday to inquire into certain 
allegations against Hon. Powell Clayton. 


Monday, January 15, 1872. 

Mr. Wright, from the select committee to investigate alleged charges against the Hon. 
Powell Clayton, reported the following resolution: 

44 Resolved, That the committee appointed under the resolution of the Senate of the 
9th instant to investigate the charges against the Hon. Powell Clayton have power to 
employ a clerk, and that there is hereby appropriated out of the contingent fund of the 
Senate the sum of $2,000, or so much thereof as may be necessary, to defray the ex¬ 
penses of said investigation.” 

The said resolution was read the first and second times, by unanimous consent, and 
considered as in Committee of the Whole; and no amendment being made, it was re¬ 
ported to the Senate. 

Ordered , That it be engrossed and read a third time. 

The said resolution was read the third time, by unanimous consent. 

Resolved , That it pass. 


Thursday, March 28, 1872. 

Mr. Wright, from the select committee to inquire into certain allegations against Hon. 
Powell Clayton, submitted the following resolution; which was read the first and second 
times by unanimous consent: 

44 Resolved , That the sum of $3,000, or so much thereof as may be necessary for the 
expenses of the committee to investigate the charges against the Hon. Powell Clayton, 
is hereby directed to be paid out of the contingent fund of the Senate under the order 
of the chairman of said committee, the vouchers therefor to be approved by the Com¬ 
mittee to Audit and Control the Contingent Expenses of the Senate.” 

The Senate proceeded to consider the said resolution as in Committee of the Whole; 
and no amendment being made, it was reported to the Senate. 

Ordered , That it be engrossed and read a third time. 

The said resolution was read the third time, by unanimous consent. 

Resolved , That it pass. 


Monday, June 10, 1872. 

Mr. Morrill, of Maine, from the select committee to inquire into certain allegations 
against Hon. Powell Clayton, submitted a report* (No. 232) thereon. 

Mr. Norwood asked and obtained leave to submit the views:of the minority of the 
committee on the allegations of Mr. Clayton; which were ordered to be printed with 
the foregoipg report (No. 232). 


* This report is embodied in the one made by the same committee February 26,1873. 



446 


SENATE ELECTION CASES. 


[Third session of the Forty-second Congress. ] 

Friday, January 10, 1873. 

Mr. Wright submitted the following resolution; which was read the first and second 
times by unanimous consent: 

“ Resolved , That the sum of $1,000, or so much thereof as may be necessary, is hereby 
appropriated out of the contingent fund of the Senate for the use of the select commit¬ 
tee to inquire into certain allegations against the Hon. Powell Clayton.” 

The Senate proceeded to consider the said resolution as in Committee of the Whole; 
and no amendment being made, it was reported to the Senate. 

Ordered , That it be engrossed and read a third time. 

The said resolution was read the third time, by unanimous consent. 

Resolved , That it pass. 

Wednesday, February 26, 1873. 

Mr. Wright, from the select committee to investigate certain charges against the Hon. 
Powell Clayton, a Senator from the State of Arkansas, submitted a report (No. 512) 
accompanied by the following resolution: 

‘ ‘ Resolved, That the charges made and referred to the select committee for investiga¬ 
tion affecting the official character and conduct of the Hon. Powell Clayton are not 
sustained, and that the committee be discharged from their further consideration.” 

Ordered , That the report and testimony taken before the said committee be printed. 

[Remarks by Mr. Wright are found on page 1785 of the Congressional Globe, part 3, 
3d sees. 42d Cong. ] 

Saturday, March 1, 1873. 

Mr. Norwood asked and obtained leave of the Senate to present the views of the 
minority of the select committee to inquire into certain allegations against Hon. Powell 
Clayton; which were ordered to be printed to accompany the report of the committee 
(No. 512). 


REPORT OF COMMITTEE.* 


In the Senate of the United States. 

February 26, 1873.—Ordered to be printed. 

Mr. Wright, from the committee to inquire into certain allegations against Hon. Powell 
Clayton, submitted the following report: 

The undersigned select committee, to whom was assigned the duty of inquiring into 
certain charges against the Hon. Powell Clayton, a member of this body from the State 
of Arkansas, have had the same under consideration, and submit the following final 
report: 

On the 10th of June last they submitted what they denominated, and which was ac¬ 
cepted as a partial report, which they here incorporate to avoid repetition, and that the 
conclusion at which they have finally arrived may be the more readily understood: 

Junk 10,1872. —Ordered to be printed. 

Mr. Morrill, of Maine, on behalf of the chairman, Mr. Wright, of Iowa, from the committee to in 
quire into certain allegations against Hon. Powell Clayton, submitted the following report: 

The special committee on whom was imposed the duty of investigating certain charges against 
the Hon. Powell Clayton, a member of this body, beg leave to-submit the following partial report: 

On the 9th of January, 1872, Mr. Scott, from the “ Joint Select Committee to inquire into the Con¬ 
dition of the late Insurrectionary States,” &c., reported to the Senate that in the prosecution of their 
inquiries the testimony of certain witnesses (Edward Wheeler and William G. Whipple, of Arkansas) 
“tended to impeach the official character and conduct of a member of this body,” but as they held 
that “the subject-matter to which said testimony related did not come within the limits of the investi¬ 
gation they were directed to make,” they declined to hear other witnesses, and thereupon adopted 
the following resolution: 

“ Resolved , That the committee report the testimony taken before the committee affecting Senator 
Clayton and Mr. Edwards, a Representative from Arkansas, to the Senate and House of Representa¬ 
tives, with a recommendation that each House take such action as it may deem proper.” 

The testimony of Wheeler and Whipple referred to in the report and resolution they also reported 
to the Senate for such action as might be deemed advisable, and on the same day the Senate adopted 
the following resolution: 

“ Resolved, That the report of the committee and the testimony accompanying be referred to a 
special committee of three, with power to send for persons and papers, to investigate and report 
upon the charges therein contained against Hon. Powell Clayton, a member of this body.” 

Pursuant to the command of the resolution, and the powers thereby conferred, the committee met 
on the 18th day of January, and entered upon the discharge of their duties. 

James L. Hodges, esq., of Arkansas, appeared before them and asked leave to prosecute the charges, 
and was permitted to do so, and accordingly appeared by himself and counsel, S. M.'Barnes, esq. 


+ The testimony, pages 21-377 of the report, is here omitted. 




POWELL CLAYTON. 


447 


Senator Clayton also asked to appear as well In person as by counsel, which request was granted, 
ana he designated as such counsel the Hon. Thomas M. Bowen and Hon. John McClure, of Arkansas. 

Wfinesses were subpoenaed from time to time, upon the request of the parties and as the com¬ 
mittee deemed necessary. It is proper to state that the parties each demanded the attendance of 
many other witnesses, which demand was declined, but not until the committee were thoroughly 
satisfied that they were possessed of the essential facts touching the matters submitted for their in¬ 
vestigation. They held almost daily sessions from the date last named until and including the 14th 
day ot May, when the testimony closed. During this day they examined thirty-eight witnesses, and 
have before them, in form of documents and the testimony of said witnesses, matter covering about 
5,000 manuscript pages. 

We are justified in saying that much of it was taken and received de bene esse. In other words, for 
the prosecution it was claimed that they would be able to show certain combinations, conspiracies, 
and corrupt agreements which, if established, would make such testimony competent and relevant. 
For the defense it was insisted that this state of case could not be shown, and in no event could such 
testimony be admissible under the resolution of the Senate and the matter submitted for our inves¬ 
tigation, but in view of the possibility of its being so held they submitted their testimony to meet 
the case supposed by the prosecution. 

As it was impossible to say in advance what, in this respect, the testimony might finally establish, 
and as witnesses were in many instances here from a great distance and anxious to leave, we deemed 
it better to take the testimony, leaving the question of its ultimate relevancy to be determined when 
deciding the whole case. This state of the record rendered it necessary to examine with care the 
testimony of very many of the witnesses to enable us to determine just what was and was not com¬ 
petent in view of the issues made. 

This work, to some extent, remains unperformed. It could not well be otherwise when we refer 
to the time the testimony closed, and the other and constant duties pressing upon each member of 
the committee. As the session is drawing to a close, however, and we hold it but the plainest justice 
to a member of this body that it should at least be known what was the general result of our inves¬ 
tigation, we have deemed it best to submit the same to the Senate. We say this is due him, the Sen¬ 
ate, and the country, and shall assume that this will be accepted as true by all, without entering 
into argument in support of a proposition so plain. The charges affect the standing and influence 
of one who has the equal dignity and responsibility of any other member of this body before the 
country and his constituency. If not sustained, it is eminently proper that he should bo relieved. 
If sustained, then the Senate owes it to itself, its own dignity, its own purity, its own self-respect, that 
he should be removed, and the people of Arkansas have upon this floor one who may be their fit, 
proper, and chosen representative. 

Thus impressed and influenced, though unable, for reasons above stated, to arrange Cue testimony 
and report back such parts as they hold to be proper and relevant, and yet able to reach a conclu¬ 
sion, to them satisfactory, from their recollection of the evidence at the time it was being submitted, 
and their subsequent examination—we say, thus impressed, we have deemed it our duty to submit 
this partial report, reserving the right, at a time when the pressure of other duties shall not be so 
great, to submit with the testimony a further and final report. 

If it should be asked, Why not no w submit all the testimony ? we answer: First, because we know 
that much of it can have no possible bearing upon the question before us and the Senate, and its 
publication would involve a large and most unnecessary expense. Second. No useful end is to be 
gained by giving to the country a mass of testimony which only serves to show the bitterness of per¬ 
sonal feeling existing between those prosecuting and their friends on one side, and the party accused 
and his friends on the other, which had its birth in the zeal of opposing political factions, to blacken 
and disparage the party integrity of those opposing them; which would only tend to still furtherdis- 
turband distract the citizens of the State where they reside, and render more difficult the restoration 
of that peace and quiet so essential in all the States, and especially those so lately in insurrection. And 
this course is the more justified from a conviction, which we cannot now escape, that not a little of 
it was offered by the parties more with the view of making political capital against each other than 
in the hope or belief that it could have any influence upon the committee, or throw light upon the 
subject-matter under investigation. We do not propose to be the instrument of a purpose so for¬ 
eign. and we most respectfully submit that the Senate should not and will not lend itself to the pub¬ 
lication in advance of a mass of testimony which in no manner tends to elucidate the real question 
before them, and which, if published, while it might gratify the malevolence of parties, could not 
possibly serve any useful end. It would be worse than waste-paper. 

We therefore submit this report, at present withholding the testimony, recommending that action 
shall be delayed until we are able to more carefully arrange the immense record before us, and pre¬ 
sent it in a form which will enable the Senate to act with greater safety and intelligence. 

And now having stated something of the work performed and the grounds which seem to us to 
justify the course pursued, we come to the consideration of those matters which were submitted for 
our investigation and a statement of the conclusion reached. In doing this it seems to be eminently 
proper, and indeed logically necessary, to ascertain and settle the nature and scope of the charges 
made and the powers of the committee under the order of reference. 

It will be seen that the report of the committee, which led to the present inquiry, states that 
the testimony submitted to them tended to impeach the official character and conduct of Senator 
Clayton. The resolution under which this committee is acting directs that the report of Mr. Scott 
and the accompanying testimony be referred, with power to send for persons and papers to inves¬ 
tigate the charges therein contained. We therefore necessarily go to the report thus referred in the 
first instance, to see what the charges are. But here we find nothing, for it is only stated generally 
that the testimony before them tended to impeach the official character and conduct of Senator 
Clayton. All that is of particular value thus far or in this language is that the charges related to 
his official character and conduct. This of course must mean his official character and conduct as a 
Senator. With his official acts in other positions we have nothing to do, except as they may bear 
upon his office as Senator. To illustrate, he was governor of the State of Arkansas up to the time of 
his election as a member of this body. Now, whether his conduct and character in the gubernatorial 
office was such as to merit condemnation or praise, whether his administration of that office was 
honest or dishonest, wise or unwise, corrupt or otherwise, is a matter of no moment whatever, ex¬ 
cept as it may bear, in some legitimate manner, upon his conduct and character in his present posi. 
tion. 

Assuming for the present that our inquiries are limited to matters subsequent to his election, not, 
of course, rejecting those antecedents, so far as they reflect light upon subsequent acts, we are led 
to inquire what these are; and here we are remitted to the testimony of Wheeler and Whipple, for 
as there are no specific charges in the report itself, the testimony of these witnesses must alone stand 
in the place of charges, the information, or indictment. Than this, few things could be more indefi¬ 
nite or unsatisfactory. Without, by any means, conceding that any one should be held to answer 
charges thus made, so entirely wanting in everything approximating conciseness, clearness, or defi¬ 
niteness, we advert very briefly to some matters to which these witnesses most vaguely refer. 


448 


SENATE ELECTION CASES, 


First. It is suggested rather than strongly claimed that Senator Clayton was indicted by the grand 
j ury of the United States circuit court for Arkansas, in April, 1871, for a violation of the twenty-second 
section of the enforcement act (16 Stat.at Large, page 145), in granting a certificate of election, as 
governor, to General John Edwards, showing his election as a member of the House of Represent¬ 
atives in the Congress of the United States. The facts in connection with the issuing of this certifi¬ 
cate will come under review in a subsequent part of this report, and we content ourselves at present 
with stating conclusions. And, first, the mere finding of the indictment would not of course so tend 
to impeach his official character and conduct, nor of course actually impeach it, as to demand action 
at the hands of the Senate. In the next place, if such finding possessed any significance, it would 
lose it all, where, as the testimony and the record here conclusively show, he was discharged there¬ 
from by the judgment of the court at a subsequent term (in October last) under a demurrer to the 
indictment ; not for any formal or technical defect, but upon the broad and substantive ground, to 
state it briefly, that the governor of a State is not an “ officer of election,” within the meaning of said 
election. 

This being so, by the judgment of the court he stood acquitted and discharged of course of all legal 
wrong. Then, if an officer, and the act was not fraudulent—that is, if he did not “ fraudulently make 
any false certificate ”—there was no criminal liability, and if there was no corrupt conduct or fraud¬ 
ulent act in this connection, it is submitted that all inquiry in this direction may be dismissed. But 
more of this hereafter. 

In the second place, it is suggested, again most vaguely—it cannot be conceded to have the dignity 
of a specific charge—that he, by himself or friends, tampered with the grand jury finding the indict¬ 
ment. Senator Olayton was in Washington City at the time the indictment was found, and there is 
scarcely a scintilla of evidence that he had knowledge that such a thing was contemplated or threat¬ 
ened. There is certainly no pretense of proof that he, by himself, or others acting for him, or at his in¬ 
stance or request, made even the least attempt to influence the action,of the grand jury presenting 
the indictment, and least of all would it be claimed that anything was done by himself, or any one 
ever so remotely connected with him, which could by possibility be regarded as either criminally or 
morally wrong. And when we add that it is worse than the sheerest pretense that anything there 
attempted was in the least connected with his official conduct or character, we dismiss this part of 
the case. 

In the next place it is attempted to be shown that he improperly used his official position and 
influence as Senator to procure the removal of the witness (Whipple) from his office of district attor¬ 
ney, and General Catterson as marshal of the district of Arkansas. Whipple was district attorney 
and Catterson marshal at the time of finding the indictment . Both these gentlemen had been more 
or less active in their opposition to Senator Clayton’s election to the Senate through a contest al¬ 
most unprecedented in its bitterness, whether viewed politically or personally. This was particularly 
true of Colonel Whipple. Senator Clayton may have been influenced, and doubtless was, not a 
little, in his efforts to procure their removal by their known opposition to him, as also by what he 
esteemed their unwarranted course in connection with the procurement of the indictment. 

It is not material to inquire whether there was anything in their conduct touching -the latter 
matter to warrant his feelings and judgment, since he did no more than what other Senators are 
constantly in the habit of doing touching the displacement of their enemies and the appointment of 
their friends. That the action of these parties in connection with the indictment was not the mov¬ 
ing cause of his opposition is clear enough from the fact that he was seeking their removal before 
it was presented, as abundantly appears from their own testimony, wherein the alleged charge is 
'found. In his conduct in this respect we fail to see any official misconduct, and especially so as it 
appears that since these removals the Executive and Department of Justice have been successively, 
and more than once, appealed to by Colonel Whipple and General Catterson and their friends for 
reinstatement, and have been as frequently unsuccessful. Whether it is right or wrong for one in 
his position to use his official influence to procure removals is not for us to say. We only state and 
find that he exercised the right or privilege taken by, if not conceded to, others; an act which, if 
regarded as tending to “ impeach his official character and conduct ,” would be equally so, probably, 
of every member of this body. 

Turning now from these matters^arising subsequent to the election of Senator Clayton we come 
to the case made touching his election, and here a preliminary inquiry arises: What have we to do 
with that election ? Recurring to the resolution raising the committee, and which must be accepted 
as the charter of our power, we remark again that the report of Mr. Scott says that the testimony 
(and to which we must go to ascertain the charges, for there is nothing else) “tends to impeach his 
official conduct and character.” Then, the resolution under which we are acting directs us to in¬ 
vestigate the charges therein contained against Senator Clayton as a member of this body. Now, 
giving to the record a fair and just construction, have we anything to do with his election or the 
circumstances connected therewith? Upon this subject at least one member of the committee en¬ 
tertains the gravest doubts. The argument suggesting and supporting these doubts is as follows: 

In respect to the subject-matter referred to a committee, the rule is that they are not at liberty to 
entertain any proposition or go into any inquiry which does not come within the direct purpose for 
which the committee was appointed, as expressly or clearly implied in the authority conferred upon 
it, or 'vhich is not grounded upon some paper which is referred to the consideration of the commit¬ 
tee. ^Cushing’s L. and P. of Leg. Pro., ss.1906 ) This is upon the clear principle that a committee, 
being a creatnre of the body giving it life, is bound by and is not at liberty to depart from the order 
of reference. If any other rule were adopted, and it could depart from the order of reference, all 
business would, of course, be at an end, and endless confusion and contests between the body and 
the committee would ensue (ss. 1907). 

Now, it is suggested that inasmuch as the report of the “joint select committee ” by Mr. Scott 
referred alone to testimony tending to impeach the official character and conduct of Senator Clay¬ 
ton, the order of reference took in and contemplated such matters alone, and that the resolution 
raising this committee must be construed in the light of that report and the subject-matter of inquiry 
be thus limited ; and hence, when it is directed that the committee shall investigate the charges 
contained in said report (including the testimony of Wheeler and Whipple), it was intended to cover 
and inolude only those bearing upon such official conduct and character, for in that report there is 
nothing said about fraud or illegality in his election. But here it is, perhaps, answered that the 
proposed inquiry is grounded upon the paper (the testimony aforesaid) referred for our considera¬ 
tion. To this the reply is : true, but that paper must properly be construed as referring to such 
charges only as relate to or are connected with the principal inquiry; that is, official conduct or 
character. If not, why did the committee omit all reference to his election and the circumstances 
attending the same? The answer is they had power and authority themselves to inquire into all 
matters bearing upon the state of affairs in the State, including frauds in elections, but not to such 
as bore upon the conduct of a member of the Senate or House after his election. 

Conceding, however, that this view limits the inquiry unjustly, let us look at the charges them¬ 
selves. And here the already great length of this report admonishes us to brevity, and especially 
so as, when the testimony shall be finally summed up, it will necessarily demand a large portion of 


POWELL CLAYTON. 


449 


our attention. Thia part of the case suggests two inquiries: First. As to matters occurring an¬ 
tecedent to t he assembling of the general assembly which elected Senator Clayton. Second. Those 
immediately leading to and connected therewith. 

Upon the first we are not disposed to enter. Our warrant for this is found in the principle ob¬ 
taining and the nature of the testimony, or rather the absence of it. It seems to us that upon prin¬ 
ciple we cannot enter upon the numberless inquiries which would always be suggested in cases of 
this character preceding the election of the members whose duty it is to elect a Senator, unless such 
conduct and transactions clearly relate to and bear immediately upon the alleged frauds connected 
with such Senator’s election. Not only so, but it would seen* that they must so color the trans¬ 
action ot the final election of the Senator as to lead to the conclusion that but for them the result 
would have been diflerent. Thus, suppose Senator Clayton used reprehensible means with the hope 
of securing the election of some member or members in one or more districts, and such persona 
were either not elected or failed to vote for him, or, if voting for him, he had a clear majority outside 
of those improperly elected, would any one say or claim that his seat could be declared vacant? Or 
suppose, as in the case before us, that the two houses of the Arkansas legislature, being the judges 
of the election, qualification, and return of their own members, have heard and investigated all al¬ 
leged frauds and given the members their seats, can this committee or the Senate go back of that 
action, and in this inquiry, whether treating it as a proceeding direct or collateral, say that such 
members were improperly elected, returned by the use of corrupt means, even if originating with 
Senator Clayton himself, and that therefore he was not legally elected ? The statement of such 
propositions furnishes its own answer. Neither legally nor logically could it be claimed that this 
committee would be called upon to go into a field so boundless, and which when explored would 
throw no legitimate light upon the controversy before us. And therefore we now incline to the 
opinion that all the testimony bearing upon the transactions before the assembling of the legisla- 
lature, except as it is connected with and gives color to the election of Senator, except as it tends 
to show that it was brought about by fraudulent and corrupt means then used, may be dismissed. 
A large portion of the testimony is of this character. As we read the record Senator Clayton re¬ 
ceived a clear majority in each branch of the general assembly outside of those claimed to be thus 
fraudulently elected, and some of those whose elections are thus assailed voted against him, and 
this alone is all that need be stated upon this subject. The efforts in this direction have been most 
extraordinary—the statements of numberless persons having been introduced upon the theory that, 
as they were friends of Senator Clayton, friendly to his election and exerting themselves in his be¬ 
half—so there was a so-called conspiracy, and what all and each of said conspirators said would 
bind all. To admit that a conspiracy has been shown in any legal sense would be to set at defiance 
all the rules of law governing in such cases, and make every candidate in a bitter and protracted 
ntest of this character responsible for all that was said and done by all his friends, the foolish and 
the discreet, the good and the bad, the honest and the dishonest, alike. While we would do nothing 
to encourage fraud.or to shield from responsibility any one seeking official position, and especially 
a position so high as a seat in this body, we would not enter a field of mere speculation and adopt a 
rule which is the most doubtful in theory and finds no support in practice or precedent. 

It only remains to inquire into the alleged frauds connected with the election. And here the 
principal, if not only one, is that Senator (then Governor) Clayton issued to Hon. John Edwards a 
certificate of election to the House of Representatives of the present Congress, upon a corrupt bar¬ 
gain or agreement that he was to receive in return for the same the support of the Democratic mem¬ 
bers of the general assembly. If this charge is not maintained, we hazard but very little in saying 
that there is nothing left of this case. And a very brief statement will show how utterly ground¬ 
less it is in fact. 

With the question whether Edwards was or was not in fact elected we have nothing to do. He 
was accepted and recognized as the Democratic candidate for Congress, his competitor being Hon. 
Thomas Boles. Governor Clayton supported Boles in that election by his voice and influence. At 
one time there were two Republican candidates in the district for Congress (Judge Boles and Judge 
Searles). Through the influence of Governor Clayton and his friends. Judge Searles was induced to 
withdraw, leaving the field to Judge Boles, and this, too, notwithstanding Judge Searles was recog¬ 
nized as the more pronounced friend of the governor. That the object was to promote harmony 
and secure ultimate political success seems to be fairly well established. 

In Pulaski County especially the Republican party was divided, one side being the warm and de¬ 
voted friends of Governor Clayton, the other his bitter enemies. To some extent this state of things 
obtained in other parts of the State. At the election in this county in 1870, and particularly in the 
city of Little Rock, it was alleged that certain frauds intervened whereby illegal votes were cast for 
Boles, or if the votes were not illegal they were received and counted by judges selected without 
authority of law, and that their action was both illegal and irregular. Into all these matters we do 
not propose to enter, as our purpose in this connection is to state some facts generally, and then 
leave this part of the case. 

By the statute of Arkansas it is the duty of the secretary of state, in presence of the governor, 
within thirty days after the time allowed for making the returns of the election, if the returns are all 
received, to cast up and arrange the votes from the several counties for member of Congress; and 
of the governor, immediately thereafter, to issue his proclamat ion declaring the person having the 
highest number of votes to be duly elected, and he is also required to grant a certificate under the 
seal of the State to the person so elected. 

From the returns made to the office of the secretary of state there was no question as to the result. 
Boles was clearly elected. The duty of the governor under the law is ministerial, not judicial. By 
strict law hehas no powerto rejectvotes, nor to direct the counting of those returned by other than 
the proper officers. In this case, however, it was brought to his attention that frauds had been 
perpetrated, or, at least, irregularities had intervened, which should be examined into. In our 
opinion, under the law he had no power to enter upon such an inquiry; nor do we understand that 
he did. 

A case was pending in the supreme court of the State involving the legality of the returns made 
from certain wards in the city of Little Rock and some precincts in the county, the determination 
of which was regarded as important in settling whether Boles or Edwards was elected to Congress. 

The governor determined to wait, and did wait, that decision. The same question was brought 
to the attention of the legislature and referred to a committee, and he declared his purpose to await 
that action. In the wards referred to two polls were opened, one by the judges selected by the by¬ 
standers, the other by the judges regularly appointed or chosen. At the first the votes were almost 
unanimously for Boles, at the other very largely for Edwards. Counting the first and excluding the 
second, Boles was undoubtedly elected ; if the latter were counted and the first excluded, and ex¬ 
cluding votes for Boles in some other places, which it was claimed were fraudulent, then it was 
insisted that Edwards was elected. 

By the decision of the supreme court and the report of the committee in the legislature, the elec¬ 
tions held by the regular judges w<ere determined to be the only legal ones, and following these 
decisions in part the governor gave the certificate to Edwards. In this he may ha've been mistaken, 

S. Doc. 11-29 



450 


SENATE ELECTION CASES. 


But it would certainly be most extraordinary to say that the executive of a State may not follow 
the decision of its highest judicial tribunal—that he may not act upon the proceedings of the legis¬ 
lative branch. 

As to the returns and the election, there was intense excitement. Factions were arrayed against 
each other, and each charging frauds without stint upon the other. If Governer Clayton mistook 
his duty, it was, at least, quite as much on the side of law and order as to have acted without in¬ 
vestigation and in disregard of the action of the other co-ordinate departments of the State govern¬ 
ment. If it is said—and this is the effort, from the testimony—that the judges and legislature were 
actuated by base, unworthy, and corrupt motives; that they were all moved by him and in his in¬ 
terest, we can only answer that a charge so serious is neither probable nor reasonable. It would 
certainly require the very strongest proof to justify us in believing a charge so sweeping, affecting, 
as it would, almost the legality and validity of the entire acts of its officers, legislative, executive, 
and judicial. 

But this is not all. General Edwards was given the certificate on the 20th of February, 1871. Gov¬ 
ernor Clayton was not elected until the 15th of March. True, he was elected at what is known as 
his first election on the 11th of January, 1871. But this election he declined. He holds his place now 
under the second election. At this but one Democrat (and he of doubtful political status) in the house 
voted for him, and he swears most positively that his vote was not influenced by the Edwards mat¬ 
ter in the least. In the senate, if any voted for him, he had, without counting them, a clear majority 
of all, and as to those voting for him, if any, there is no evidence that they cared anything more for 
Edwards than Boles. 

It appears, then— 

First. That Clayton was the political friend of Boles and favored his election. 

Second. That in issuing the certificate he discharged what seemed to be, and what he had good 
reason to believe to be, his duty, in following the decision of the supreme court and the acl ion of the 
legislature. 

Third. Nothing approximating a corrupt motive in exercising the power to inquire into the legal¬ 
ity of the returns is shown. 

Fourth. He gave Edwards the certificate before he was elected the second time, and after he had 
announced, at least, a contingent purpose of remaining in the office of governor. 

Fifth. There was no necessity for a bargain with the Democrats in the legislature, for they were 
but too willing; being in the minority and without hope of being able to elect one of their own polit¬ 
ical friends, in view of what they considered to be their wrongs and the wrongs of their friends at the 
hands of the governor, we say they were but too willing to have him elected to the Senate and thus 
secure his resignation as governor, trusting and believing that a change could not possibly be worse 
for them. 

Sixth. He did not receive any votes under any such agreement, and, least of all, any number suffi¬ 
cient to influence the result. And hence we conclude that nothing can be plainer or more manifest 
than that this charge is totally and entirely unsustained. 

Something is said in the testimony of Whipple about railroad subsidies and bonds, and the action 
of Governor Clayton in that connection. This relates rather to his action as governor, with which 
we have nothing to do, than to the Senatorial election. So it is attempted to show or start the theory 
that he procured the resignation of White*as secretary of state, and appointed Johnson, the lieuten¬ 
ant-governor, to the place made vacant by White, also the election of Hadley as president of the 
senate—all in pursuance of a corrupt arrangement by which he was to be elected to the Senate. It 
must be admitted that the stroke was a bold and most successful one. Governor Clayton had said 
to his friends from the stump and elsewhere that, while he was a candidate for the Senate and was 
desirous of success, he would never take an election and leave the State administration in the hands 
of Lieutenant-Governor Johnson. He was elected Senator in January, and an effort was then being 
made in the courts to remove the lieutenant-governor. This was unsuccessful, and Governor Clay¬ 
ton declined the office of Senator. At the first election several of the Democratic members voted for 
him for reasons already stated. At this time and for weeks all parties were excited ; the members 
were leaving the legislature to break a quorum; crimination and recrimination were the order of the 
day, and each party was struggling for supremacy. Everything was in disorder and confusion. 
The result no man could tell. At times they were apparently on the eve of an outbreak, if not of 
revolution. Then it was that White resigned his office of secretary of state. He was the friend of 
Governor Clayton, but apparently not more than of the other side—wanted to and was willing to 
serve him. Johnson was willing to take that place and vacate that of lieutenant-governor, and he 
was accordingly appointed. Hadley was elected presiding officer of the senate; Clayton was made 
Senator, and Hadley became governor. 

If in all these changes there was nothing corrupt upon the part of Governor Clayton, then they 
are as harmless, so far as this investigation is concerned, as if they had occurred years before, or in 
another State, and without his suggestion or knowledge. The only testimony which tends to show 
anything of the kind is that of \yhite, who swears that months afterward he received some money 
through Senator Clayton, but he explains what it was for, and states positively that it was not in 
consideration of his vacat ing the office of secretary of state. 

But, without more, we here leave the case. In our opinion the charges, if such they can be called, 
are not sustained. The testimony fails to impeach the Senator’s official conduct or character. All 
which we shall take occasion to show by a fuller reference to the testimony and record, when other 
duties will permit and it may be the pleasure of the Senate to receive the same. 

Respectfully submitted. 

GEO. G. WRIGHT. 

I concur in the foregoing, as touching the testimony which “ tends to impeach the official character 
and conduct of a member of the United States Senate,” reserving a recurrence to the mass of testi¬ 
mony when opportunity offers for a full report. 

LOT M. MORRILL. 


VIEWS OF THE MINORITY. 

June 10,1872.—Ordered to be printed, to accompany the report of the committee to inquire into cer¬ 
tain allegations against Hon. Powell Clayton. 

Mr. Norwood submitted the following as the views of the minority: 

Protest against the report of the majority of the committee appointed to investigate the charges against Eon. 

Powell Clayton. 

As a member of the special committee of three, appointed by the Senate to investigate certain 
charges made against Hon. Powell Clayton, United States Senator, and to report the result of such 


POWELL CLAYTON. 


451 


Investigation to the Senate, I most respectfully protest against the action of the majority of that com¬ 
mittee in submitting their report at this time; and in justification of my course and in support of 
tins protest, I beg herewith to submit the following facts and considerations: 

This investigation, as stated in the report of said majority, commenced on the 18th day of Jan¬ 
uary last and continued almost daily (Sundays excepted) until the 14th day of May. Thirty-eight 
witnesses were examined, and their testimony averages, each, about 125 manuscript foolscap pages. 
During the examination but two of the committee were generally present. Sometimes all were 
present, and often, by consent of Senator Clayton and James L. Hodges, who occupied the positions 
betore the committee of prosecutor and defendant, but one of the committee was in attendance, 
the three alternating, so that no one member of the committee was present during the whole of the 
investigation. Hence no one member of the committee heard the whole testimony. Duty com¬ 
pelled our attendance in the Senate Chamber, and at no time did we sit while the Senate was in 
session. And as we sat generally from 10 a. m. to the opening of the session, many other duties 
made it necessary for one and another of the committee to be absent. 

A few days after the majority of the committee determined to close the investigation, the chair¬ 
man convened the committee to determine what course should then be taken. The resolution fix¬ 
ing the day of adjournment on the 29th of May was then in force, and we supposed Congress would 
adjourn on that day. In view of the immense volume of the evidence, which no one member of 
the committee had read through, in consideration of the brief time to elapse before the day then 
set for adjournment, and also of the determination of the committee to revise the record before 
having it printed, for the purpose of expunging such as might be irrelevant and much that was 
conversational between the counsel and the committee during the examination of witnesses, and 
thus to reduce the. volume to a condensed and readable form, the committee at that time divided 
the manuscript into three parts, and each member took a third for the purpose of revising it and 
noting such portions as he considered might be expunged without detriment to the record. We 
discussed the probability of being able to make a report at the present session, and in view of this 
preliminary labor of expurgation, the shortness of the time allowed, as the day for adjournment was 
then set, and of our engagements in the Senate, then convening at 11 a. m. and holding night sessions, 
we saw no prospect of completing our labor so as to report before the next session of Congress. It 
was further agreed that we should, after examining the evidence and noting the irrelevant matter, 
come together at a time left indefinite, and consider well whatever each had marked as in his judg¬ 
ment unnecessary to the record, and the remainder would then be printed. We would then exam¬ 
ine and weigh the relevant testimony, and make a report to the Senate. 

Thus the matter remained until about a week ago, when the chairman assembled the committee 
and suggested that a report be made. In consideration of all that had occurred, as stated above, 
and of the fact that the committee had taken no action on the testimony preparatory to making a 
fair, full, and final report, I moved that the testimony be printed and that the original purpose of 
the committee be carried out, and that a report should be made at the next session of Congress. 
This suggestion was not adopted, and on the 3d day of June instant the chairman submitted to the 
committee for its action the document now presented to the Senate as the report of the majority. 

The majority admit that a careful examination of the testimony has not been made; that they 
submit “ a conclusion reached from their recollection of the evidence at the time it was submitted 
and their subsequent examination; ” that the report is only “partial; ” that they intend to make 
“ a further and final report; ” that they withhold the testimony, and recommend that the Senate 
take no action on their report until it can “act with greater safety and intelligence.” 

I do not intend to enter on a consideration of the merits of this case. I regard the action of the 
majority of the committee as premature (as they admit) and unprecedented. What power has a 
special committee to make a report by halves? Besides, what necessity exists for a report at this 
tune? It is true the majority say that justice to the Senator accused requires it. But why and 
how? What injury can follow by waiting until our labor could be completed? Confessedly it is 
incomplete. Confessedly the evidence must be thoroughly examined and another report must be 
made. 

The report submitted refers to but a small portion of the material evidence taken by the commit¬ 
tee, and while I will not express an opinion as to the effect of the testimony until I shall have given 
it that careful and serious consideration which the gravity of the charge and the dignity of the 
Senate require and demand, I will say that I think the conclusion of the majority very hastily 
drawn. 

Keferring to the testimony of Wheeler and Whipple, they extract the following as 
constituting the charges (if such they can be called) upon which this investigation was 
instituted. 


CERTIFICATE TO EDWARDS. 

[Extract from the testimony of Edward Wheeler.] 

“Examined by Mr. Blair: 

“Question. What was the reason assigned for Clayton acting as he did?—Answer. It 
was generally regarded that he expected by supporting Edwards to gain some Demo¬ 
cratic votes in the legislature for United States Senator. 

“Q. That it was for his own interest and to secure his own election as Senator?—A. 
It was so understood; yes, sir. 

“Q. That is the explanation of it?—A. That is, the object of the frauds iu Hot 
Springs County was to put Clayton men in the legislature; the object of the frauds in 
Pulaski County was to put Democrats in the legislature, for the Clayton faction had a 
very small vote in that county and the Democrats were given seats in the legislature. 
It was claimed, and it has been sworn to by some prominent Democrats, that General 
Edwards was given the certificate upon a trade made by Senator Clayton that certain 
parties would not contest certain seats in the legislature. That was the testimony de¬ 
veloped in the investigation made iu the Boles and Edwards contested-election case.” 

[Extract from the testimony of William G. Whipple.] 

“Examined by Mr. Blair: 

‘ ‘ Question. What was the motive of the governor in giving this certificate to a man 


452 


SENATE ELECTION CASES. 


who was not elected?—Answer. Of coursfe it is very hard to tell what his motive was. 
It is generally understood that it was done in pursuance of a trade. 

“ Q. Of a trade?—A. Yes, sir; that is the general understanding. 

‘ ‘ Q. What was the trade ?—A. That the Democratic members of the legislature should 
support him for the Senate of the United States. 

“ Q. Did they do it?—A. Yes, sir; they did. 

“Q. And the governor carried out his part of the bargain?—A. Yes, sir; it seems 
very plain that he did that. 

“Examined by the Chairman (Mr. Scott): 

“Q. There was a majority of Republicans in the legislature that elected Governor 
Clayton to the United States Senate?—A. Yes, sir. 

“ Q. And when these two divisions came into conflict in regard to electing a United 
States Senator, you say the Clayton men entered into a corrupt combination with the 
Democrats by which the Democrats agreed to vote for Governor Clayton for the Senate 
of the United States in consideration of Governor Clayton giving a certificate of elec¬ 
tion to the Democratic candidate for Congress in the third Congressional district of the 
State ?—A. That is believed by many persons. 

“Q. You have already stated that here as the general belief in the State?—A. Yes, 
sir. 

“ Q. Is that your belief ?—A. Well, it is my belief that Clayton made some trade with 
the Democrats. Precisely what were the terms of the trade I would not undertake to 
say. 

“ Q. You have already put it in that form in your testimony. I want to understand 
if that is your belief.—A. I do not think I put it in exactly that form. 

“ Q. You stated that to be the general belief.—A. I think it is the general belief. 

“ Q. Do you include yourself among those who entertain that belief?—A. Well, I have 
reason to believe it, and I know of no reason why it is not true.” 

ELECTION TO THE SENATE. 

[Extract from the testimony of William G. Whipple.] 

“Examined by Mr. Blair: 

“Question. What condition of affairs in Pulaski County was disclosed by the investi¬ 
gation, so far as it went?—Answer. There were shown many instances of fraudulent reg¬ 
istration; parties who were not voters were awarded certificates by the registrars; there 
were many cases of parties registered in the wrong ward of the city or the wrong pre¬ 
cinct in the county. For instance, parties would present themselves in the Second ward 
to be registered, and would be registered in Big Rock Township. There were many in¬ 
stances of that kind, where parties were registered in the wrong places. 

“ Q. In whose interest were these frauds perpetrated ?—A. In the interest of what was 
known as the Clayton party. 

‘ ‘ Q. For the purpose of electing men who would support him for Senator of the United 
States?—A. Yes, sir; and in many cases to defeat the Republican candidates. 

“ Q. Who would not vote for him as Senator?—A. 'Who would not pledge themselves 
to support him for the United States Senate. That was the case in Pulaski County, 
where the Clayton vote was understood to have been thrown to secure the election of 
Democratic candidates for the legislature as against the Republican candidates, because 
the former were expected to support Clayton and the latter were not. 

“ Q. Did they support him?—A. They did support him; yes, sir, they voted for him 
for United States Senator. 

“ Q. As I understand, Governor Clayton was elected Senator, and declined to accept?— 
A. Yes, sir. 

“ Q. What was his reason for declining to accept when first elected?—A. What reason 
did he assign ? 

“Q. Yes.—A. The reason that he assigned was that the interests of the Republican 
party in Arkansas required that he should remain governor. But that was not the gen¬ 
eral understanding at all. 

“Q. What was the general understanding on the subject?—A. The general under¬ 
standing was that he declined the election to the United States Senate because, if he 
went to the Senate at that time, he could not leave the government of the State in the 
hands of his friends. 

“ Q. Who would have been governor if he had not declined to go to the Senate at that 
time?—A. The lieutenant-governor, James M. Johnson. 

“ Q. Was he a friend of Clayton ?—A. He was not a friend of Clayton at that time; 
he was a Republican. 

“ Q. How did Clayton subsequently arrange that, when elected the second time?—A. 
On the eve of the second election, I think the day before, Lieutenant-Governor Johnson 


POWELL CLAYTON. 


453 


resigned his office as lieutenant-governor, and was appointed secretary of state by Gov¬ 
ernor Clayton, Secretary White, the previous secretary, having resigned. Thereupon, 
Senator Hadley was elected president pro tempore of the senate, and became acting gov¬ 
ernor of the State upon the election of Governor Clayton to the United States Senate. 

||Q* is understood to be a friend of Clayton ?—A. Governor Hadley? 

“ Q. Yes.—A. Yes, sir; he is understood to be a Clayton man, out and out.” 

INDICTMENT. 

[Extract from the testimony of Edward Wheeler.] 

“ By Mr. Blair: 

“Question. Were you a member of the grand jury of the United States court last 
spring?—Answer. Yes, sir; and its foreman. 

11 Q- When was the sesion of that court held?—A. It commenced on the 10th of April 
last. 

“ Q. Were any indictments found by that grand jury under the act of Congress known 
as the ‘enforcement act?’—A. Yes, sir; there were several found. 

“Q. Against whom? Who were indicted?—A. There were six or seven different par¬ 
ties indicted in Hot Springs County; judges, and clerks of elections, and registrars; also 
some six or seven in Clark County for frauds in elections; and Governor Clayton, of 
Pulaski County, was indicted. 

‘ ‘ Q. What was the offense for which Governor Clayton was indicted, and what was the 
evidence upon which he was indicted?—A. The evidence was entirely documentary, 
being the returns in the office of the secretary of state. The witnesses were the ex-secre¬ 
tary of state and the deputy secretary of state. They brought the returns, or a tabular 
statement of them sworn to, and laid it before the grand jury. 

“ Q. Those returns were of what election, and in what counties?—A. In the election 
for members of the Forty-second Congress, and in the counties composing the third Con¬ 
gressional district of the State of Arkansas. I do not now remember all of the counties 
by name. It is the district in which the county of Pulaski is embraced; our county is 
one of the counties of the third Congressional district. 

“ Q. What was the action of Governor Clayton that led to his indictment?—A. The 
first that I, or any member of the grand jury, knew of the matter was the bringing of 
the case to our attention by the district attorney; he came to me with a list of witnesses, 
three in number, which he wished to have subpoenaed. He said the case had been called 
to his notice, and he wanted it brought before the grand jury for examination. I sub¬ 
poenaed the three witnesses: the ex-secretary of state, the deputy secretary of state, and 
General Edwards, the person to whom the certificate of election for Congress had been 
given by Governor Clayton. It was claimed that Governor Clayton had violated certain 
sections of the enforcement act in giving the certificate of election to General Edwards, 
when the returns, as exhibited to us by the secretary of state, showed that Judge Boles 
had been elected. General Edwards presented a copy of his certificate of election, and 
of the proclamation of the governor, stating that, according to the returns on file in the 
office of the secretary of state, General Edwards had been elected. But the returns, as 
exhibited to us, showed that Judge Boles was elected by some 2,130 votes, I think it 
was, on the full vote, counting the votes at both polls. There were allegations of fraud 
on both sides. But giving the governor the benefit of every doubt, the least majority 
for Judge Boles that we could figure out was some 800 or 900; I forget the exact figures. 
That was according to the returns shown to us; and upon that showing the indictment 
was found. 

“Q. Under what part of the act was the indictment found?—A. I think it was the 
twenty-second section of the enforcement act. And our State laws require the canvass of 
the returns to be made by the governor, assisted by the secretary of state; the governor 
is made the canvassing officer. The law was explained to us by the district attorney, 
and it was claimed that the governor had violated the twenty-second section, I think it 
was, of the enforcement act; the one providing that if any officer shall issue a fraudulent 
certificate of election to any party, he shall be amenable, &c.” 

Again: 

‘ ‘ Q. And the grand jury found that that was a fraudulent certificate ?—A. They found 
that this proclamation of the governor, issuing the certificate of election to Edwards, 
was not in accordance with the returns in the office of the secretary of state as laid before 
us.” 


“ By the Chairman: 

“Q. What was the specific offense with which the governor was charged?—A. I think 
the district attorney, who is in this city, has a copy of the indictment, and he can prob¬ 
ably explain these matters much better than I can. ’ ’ 

Again: 

“Q. The other case of indictment you have referred to is one against Governor Clay- 


454 


SENATE ELECTION CASES. 


ton, for giving the certificate 3 on have read?—A. For furnishing a certificate of election 
to John Edwards. 

“ Q. The State law, you say, makes the governor the canvasser of the returns?—A. It 
makes it the duty of the governor, within thirty days after the election, to make a can¬ 
vass of the votes, make proclamation, and issue certificates of election. 

“ Q. In the discharge of that duty is the secretary of state associated with him in any 
capacity which would invest him with authority to decide; or does the governor merely 
consult him?—A. His duty is merely clerical; the governor is the canvassing officer 
proper. I think the law states that the canvass shall be made by the secretary of state 
in the presence of the governor, and the governor shall, by proclamation, announce the 
result. 

“ Q. It makes it the duty of the governor to award the certificate to the persons whom 
he judges to be elected?—A. Yes, sir. 

‘ ‘ Q. The responsibility of the decision is upon the governor ?—A. Entirely. 

“ Q. And it was because, upon the evidence presented, you believed that the governor 
had decided wrongfully?—A. Yes, sir, according to the returns laid before us. 

“Q. You found a true bill against him?—A. Yes, sir. 

‘‘ Q. And that case is now pending for trial in the United States court?—A. Yes, sir.” 

Again: 

“ Q. You heard, of course, nothing but the evidence on the part of the Government; 
there was no defense?—A. Of course there was no defense. 

“Examined by Mr. Pool: 

“Q. You sought for no facts as explanatory of the governor’s action?—A. No, sir, 
we knew of nothing; we could get at nothing but the returns. 

“ Q. Was any witness sworn before the grand jury other than the secretary of state, 

the- A. The ex-secretary of state. The present secretary of state was not then in 

the city. He had but recently entered upon the duties of his office, and his chief clerk 
was made deputy secretary of state, and he was before us in regard to the records. 

“ Q. In relation to the authenticity and correctness of the report?—A. Yes, sir. And 
General Edwards was before us as to the correctness of a copy of the certificate which 
had been furnished us. 

“Q. And you examined no witnesses outside?—A. No, sir.” 

These witnesses testified more at length before the “joint select committee,” &c.; 
but the foregoing it is believed contains all that is necessary to show the precise charges 
made. They may be considered under three heads, to wit, certificate to Edwards, 
election to the Senate, and corrupt bargain. 

Without discussing what would be the effect if any or all these charges were sustained, 
or the propriety or power of this body to consider the same, interesting and important 
though such a question might be in a proper case, we proceed at once to state our views 
of the case as submitted to us without reaching the inquiry indicated. 

Disregarding, then, chronological order, we shall consider first the matter of the in¬ 
dictment. 

It appears that Senator Clayton was indicted for the violation of the twenty-second 
section of the enforcement act, in fraudulently giving the certificate of election to Gen¬ 
eral Edwards when, as is claimed, it should have been given to his competitor, Judge 
Boles. He was governor, and as such did give the certificate of election to General Ed¬ 
wards. The language of said section, so far as here material, is that “ any officer of 
any election at which any Representative or Delegate in the Congress of the United 
States shall be voted for * * * who shall * * * fraudulently make any false 
certificate of the result of such election in regard to such Representative or Delegate 
* * * shall be deemed guilty of a crime,” &c. By the law of Arkansas it is pro¬ 
vided that the secretary of state shall in the presence of the governor, or, &c., cast up and 
arrange the votes of the several counties, or persons voted for as members of Congress, 
and that the governor shall immediately thereafter issue his proclamation declaring the 
person having the highest number of votes to be duly elected, and that he shall grant 
him a certificate thereof under the seal of the State. 

It seems that the secretary of state did thus cast up and arrange the votes in the elec¬ 
tion between Boles and Edwards. It also appears that by the showing thus made Boles 
and not Edwards had a majority of the votes, and was hence apparently entitled to the 
certificate. 

This canvass of the votes took place within thirty days after the election (the election 
being on the 8 th of November, 1870), and yet proclamation was not made nor was the 
certificate issued until in February, 1871. 

Immediately after the election divers affidavits and some documentary evidence were 
presented to the governor, tending to show that in one of the counties (Pulaski) of said 
Congressional district frauds had intervened which, being considered, would exclude a 


POWELL CLAYTON. 


455 


large number of votes cast for said Boles and thus elect Edwards. About the same time 
proceedings were instituted in the supreme court involving the validity of said election, 
and the votes thus claimed to be fraudulent or irregular, and they were afterward by 
the judgment of said court determined to be fraudulent and illegal. To state the claim 
more particularly it was maintained in said affidavit and evidence, as also in said pro¬ 
ceedings in court, that the polls in some of the wards of the city of Little Rock (Pulaski 
County) and some precincts in this county were taken possession of by force, violence, 
and contrary to law, judges of election installed without right, and other illegality 
and irregularities practiced, and notwithstanding the proper and legal judges also held 
an election at the appointed places, the votes received at the illegal polls and by the 
judges illegally chosen were the votes received and canvassed. When the legislature 
met the same questions were there made as to the members of the house and senate 
voted for in said localities at the same time, and claiming seats under such alleged illegal 
election, and it was determined adverse to their claims. After all this the governor 
issued the certificate to Edwards. 

It is claimed by those prosecuting the charges here that even excluding the so-called 
illegal returns Boles was still elected. This we are not prepared to concede, for it seems 
very clear that there is one method of canvassing the returns, and not at all without 
warrant in the figures if certain facts are admitted, which would elect Edwards. 

This will be seen in the following statement: 

By the returns from all the counties, as canvassed by the secretary of state, it appears 
that Boles received 10,344 votes; Edwards received 8,211 votes. The governor excluded 
from the count the votes cast in the First and Third wards in the city of Little Rock, 
and in certain precincts or townships in the county of Pulaski, in all of which the elec¬ 
tion had been declared illegal by the legislature, of which excluded votes there had been 
cast for Boles 2,385, which being deducted from the above number, counted for Boles, 
left him 7,959, and of which excluded votes there had been cast for Edwards 202, which 
being deducted from the above number counted for him left him 8,009; thus showing a 
majority for Edwards of 50 votes. 

But conceding that Boles was actually elected and hence entitled to the certificate, it 
would by no means follow that this indictment was well founded, nor that Senator 
Clayton was consciously and willfully violating his duty or conniving at a violation of 
the law. 

We concede that in strict law the functions of the governor in relation to the procla¬ 
mation of the result and granting the certificate were ministerial and not judicial. His 
duty was simply to declare the result and deliver the certificate of his election to the 
party appearing to have a majority by the canvass thus made. He had no power strictly 
to go behind the canvass and inquire into the alleged frauds; for the returns were to all 
appearances legal and formal, and the evidence aliunde was for Congress if the question 
was raised of their illegality, and not for the executive. But it by no means follows 
that he was guilty of the fraudulent act forbidden by the enforcement act if he did go 
behind the returns. 

In the first place he was not amenable under the statute for this act, because in our 
opinion he was notan “officer of any election” within the meaning of the statute. 
This was expressly so held by the circuit court of the United States for the district of 
Arkansas, his honor Judge Dillon presiding—a jurist of the clearest head, the most 
incorruptible integrity, and the finest legal attainments—when the question came before 
him in the indictments, and of its correctness we think there can be no reasonable 
doubt. 

But if such officer, the governor might well in the utmost good faith, though without 
strict legal warrant, esteem it to be his duty to go behind such returns if it was brought 
to his attention that fraud had intervened. A mere mistake as to his powers and duties— 
the exercise of judicial instead of ministerial powers in that connection—would by no 
means establish the required fraudulent intent. And when we remember the circum¬ 
stances that such frauds were brought to his attention; that he supported Boles and 
not Edwards in that election; that he exerted himself to procure the declination of a 
third candidate (Judge Searles) who claimed to be a regular Republican candidate, and 
whose candidacy endangered the election of Boles and rendered more probable that of 
Edwards; that Boles was recognized as-the candidate of the party with which the gov¬ 
ernor has continually acted, and that Edwards was the candidate of the opposition; that 
at least some evidence was furnished to him of the alleged frauds; that the highest judi¬ 
cial tribunal of the State had declared against the validity of such returns; that the 
legislature had reached the same conclusion—we say when all these things are remem¬ 
bered we should be compelled to overturn all rules of evidence to say that, while he acted 
without warrant of law, he also acted fraudulently. A party may mistake the plainest 
legal duty, and yet have no criminal intent. And so we find in this case that the gov¬ 
ernor, if an officer of election, did not act fraudulently, hence was not guilty of the 


456 


SENATE ELECTION CASES. 


offense charged, and that thus far there is nothing to “impeach his official character 01 
conduct as a member of this body. ” 

Second. Alleged frauds leading to and connected with his election as Senator. 

We inquire in the second place into the charge of fraud leading to and connected with 
his election as Senator. 

By reference to the testimony of Whipple (set out above) it will be seen that this is 
based upon alleged fraudulent registration, and some supposed bargain or arrangement 
by which Johnson resigned his office as lieutenant-governor, taking the place of White, 
who resigned as secretary of state, Hadley becoming governor and Clayton Senator. 
Than this few things could be more vaguely stated so far as the testimony of Whipple 
discloses, and yet this is all, it is believed, to be found therein approximating a charge in 
this connection. We have sought not to put too narrow a construction upon the lan 
guage used, nor have we been in the least inclined to limit the investigation within 
limits even so narrow as the charges here contained under the most liberal construction. 
And hence, upon the theory of the prosecution, that Senator Clayton, with many others, 
his friends, had conspired by the use of unlawful and corrupt means to secure his election 
to the Senate, much testimony was received as to appointments to office figuring in and 
preceding the conventions which nominated candidates for the legislature, the issuing of 
State bonds to railroad companies, certain influences which it was claimed were brought to 
bear on members of the legislature looking to his election, and other like matters, though 
nothing of the kind was charged or pretended in the testimony referred to us. 

Of course a most material preliminary inquiry would be to what extent a party thus 
charged is to be affected by the acts, conduct, admissions, pledges, or promises of his 
friends, and hence the theory was that there was a conspiracy for the purpose indicated, 
and that what was said or done by one in furtherance of the common purpose was said 
or done by all, and that upon such hypothesis Governor Clayton was bound by all that 
was said or done by those engaged in the common design. 

As stated in the ‘ ‘ partial report, ’ ’ much of the testimony was received upon this theory 
of the prosecution—it being conceded that if the so-called conspiracy was not established it 
was in every respect incompetent. Since making that report we have carefully examined 
the testimony, and feel bound to hold that it falls far short of establishing the alleged 
combination, and hence that a large portion of the testimony should be excluded. We 
therefore report only such as we believe to be competent in this view of its scope and 
effect. 

We shall be pardoned for stating the familiar proposition that to constitute a conspir¬ 
acy there must be a combination of two or more by concerted action to accomplish a 
criminal or unlawful purpose or to accomplish a purpose not in itself criminal or unlaw¬ 
ful by unlawful or criminal means. The conspiracy is the gist of the offense, and it is 
not necessary that any act should be done in pursuance of such unlawful agreement, 
To make the acts or declarations of another evidence against the party charged the 
common design must first be established, and it will not do to connect the party charged 
or bring him into the alleged conspiracy by the admissions of others without his 
knowledge or without at least some recognition by him of their right to speak for or bind 
him. 

In this case the purpose to be accomplished was neither criminal nor unlawful. The 
parties confederated, if at all, to accomplish a proper purpose by the use of unlawful or 
criminal means. And the whole of the case is, to put it in its strongest light, against 
Senator Clayton; that he is to be bound by all that was said and done by his friends, 
and simply because they were such, whether at the State capital or elsewhere, in their 
efforts to secure his election. We do not stop to determine whether these acts were 
or were not illegal, whether they can or cannot in all respects be defended; we only hold 
that there is no particle of testimony warranting the conclusion that he ever combined 
with them to use unlawful or criminal means. And if he is to be held responsible for 
every indiscreet remark made by overzealous friends, by every inducement just or other¬ 
wise held out by them to members of the legislature, for every appliance made use of 
by political and personal friends in the election of the members thereto, for the alleged 
combinations made in connection with proposed legislation, for all the alleged frauds 
in connection with registration in some parts of the State near and remote alike—we 
say, if this be the rule, few men would want friends in such a contest, or would be safe, 
however honest and upright their own conduct. 

Many things were said and done by friends of Senator Clayton which we might not 
approve. Nor would we for a moment recognize any rule which would not exact or re¬ 
quire the highest integrity and most honorable conduct in contests of this character. 
On the contrary, we would condemn without reserve every step, every word, every move¬ 
ment, which would seem to tend to the least fraud or corruption in an election so impor¬ 
tant. And yet, in view of the duty assigned us, we have nothing to do with mere 
matters of personal propriety, nor are we to determine whether all the plans, plots, and 
counterplots of these opposing factions were in all respects to be justified by a code of 


POWELL CLAYTON. 


457 


ethics ever so desirable, and yet perhaps too seldom practiced. We have to do with the 
practical question whether Senator Clayton was himself a party to such fraud and cor¬ 
ruption as invalidate his election or impeach his official character. 

In the whole mass of testimony there is but little to connect him with the various 
schemes which it is alleged were corrupt in their inception and consummation, touching 
his election. Witnesses, it is true, did testify as to what others said, but that they spoke 
with the knowledge or concurrence of the party charged is left entirely without proof 
in many instances, and when the proof is supplied it relates to matters so entirely im¬ 
material or foreign that it is scarcely worthy a moment’s attention. One witness (McCon¬ 
nell) undertakes, we know, to bring all the matters detailed by him, or many of them, 
home to the Senator. But we feel bound to say that in many respects his story is im* 
probable, and he stands before us in such an attitude that we are constrained to discredit 
much that he says. While before us he was almost a wreck from long-continued dissi¬ 
pation, and we were compelled to put him under treatment for several days before his 
testimony could be completed. Add to this that several witnesses, having the means of 
knowledge, testify unhesitatingly that his reputation for truth and veracity is bad, and 
it seems to us that no tribunal would be justified in condemning any one upon the mere 
recollection of such a witness, months after the transactions occurred. 

That which approximates nearest any improper action on the part of Senator Clayton, 
in this connection, relates to the steps taken to induce White to resign the office of sec¬ 
retary of state. It will be seen that Clayton was governor and Johnson lieutenant- 
governor. When the former was first elected to the Senate, Johnson was still lieutenant- 
governor, and would, if the governor accepted the Senatorial position, succeed to the 
gubernatorial office. Clayton had pledged his friends, both before and after the meeting 
of the legislature, that he would not accept the position of Senator if Johnson was to be 
left as governor. At the time proceedings were pending in the supreme court of the State 
to oust Johnson, but the proceedings failed, and thereupon Clayton declined the Senator- 
ship. He still desired to be Senator, and yet determined to maintain his pledge to his 
friends. After much consultation among his friends and others, an arrangement was 
effected by which White resigned. Johnson was appointed by Clayton to his place as 
secretary of state, and then Hadley was made presiding officer of the senate, and, upon 
Clayton’s election again to the Senate, which followed soon after the above resignations 
and appointments, he became governor. Months afterward White received, as we find, 
through Senator Clayton, $5,000 in money and $25,000 in railroad bonds. 

In the resignations and appointment themselves there was nothing wrong. There is 
no testimony that Clayton made use of improper means to bring them about. White, 
who is the only witness who seems to know much about it, says that he was a friend of 
Governor Clayton—was anxious for the harmony of the party—had frequently expressed 
his readiness to do anything to bring about quiet and peace; that he had for months, 
because of the condition of his family, expressed his intention to resign; that he had some 
business relations with the opposing faction, which was in such a situation that he knew 
he must suffer if by his resignation Johnson could be got out of the way; that he did 
thus suffer, and that this $5,000 was paid to indemnify him for this loss. He expressly 
denies that this money or his resignation was any part of any corrupt or other improper 
agreement or prior arrangement touching the Senatorial election. To this view of the 
transaction there is no direct opposing testimony. Who furnished the $5,000 and the 
bonds is not shown, except that they were deposited by Jackson E. Sickels to the credit 
of White, and the certificates of the deposit were sent to him by Senator Clayton. To 
conclude that it was paid in pursuance of a corrupt agreement, under and by which Gov¬ 
ernor Clayton secured his election, we should have to proceed upon presumption in the 
face of positive statement; and this, too, without any evidence that the vote of any mem¬ 
ber of the legislature was influenced by it, at least to his advantage; and when, also, it 
had been demonstrated more than once that he had at the time a clear majority of both 
houses of the legislature. What he wanted was not votes, for he had them, but he 
wanted such a condition of things as that he could take the office and keep faith with 
his friends. 

By the retiring of White, Johnson would go to an office more desirable in tenure and 
emolument than the one he held, which was apparently sufficient to induce the step. 
The votes of the members of the legislature did not seem to have been involved in the 
movement, and White was content to see the matter arranged and to retire from a posi¬ 
tion that had become irksome to him. There was no necessary connection between the 
arrangement with White and the votes of members of the legislature. In itself there 
was nothing either criminal or corrupt. Certainly there is no law, State or national, 
punishing such an act. If not a part of a corrupt agreement, by which votes were ob¬ 
tained, or intended to be secured, we cannot see how the arrangement can be made to 
affect his official character. Then, too, it must not be forgotten that the conference 
touching White’s resignation was not with Clayton, nor ostensibly on his account, but 
quite exclusively between Hadley and White, and that Hadley was deeply interested on 


458 


SENATE ELECTION CASES. 


his own account in bringing about White’s resignation, for, in that event, the chances 
were, if indeed it was not certain, that he (Hadley) would become governor, and while 
the money passed through the hands of Clayton, in view of the other interests involved, 
we cannot say that others may not have contributed it; and, in a matter so important and 
so vitally affecting the character and official position of a member of this body, we should 
not indulge in mere presumptions nor upon impression condemn him. Without giving 
our approval to the course pursued, we find nothing in it of such a corrupt or criminal 
nature as to vitiate the election, or to warrant a disturbance of his present official posi¬ 
tion. 

But one matter remains to be considered, and that relates to the alleged corrupt bar¬ 
gain by which Senator (then Governor) Clayton issued the certificate of election to Gen¬ 
eral Edwards, in consideration of receiving votes for his present position in the legislature 
of Arkansas. 

This charge, though the one in which this prosecution mainly originated, has less 
apparent support than either of the others. Much that has been heretofore said is appli¬ 
cable here. The testimony, instead of showing the corrupt bargain, abundantly establishes 
that the Senator (then governor), though acting from an incorrect view of the law and 
his duty, nevertheless was carrying out what he had at least fair reasons to believe the 
will of the people, as expressed by their votes. He had evidence tending to show frauds. 
He had the solemn judgment of the highest court of his State, and the action of the law¬ 
making power touching the very point upon which he seemed to doubt; and he but 
followed such j udgment and action. To say that he acted corruptly or fraudulently under 
such circumstances, we would have to conclude that not only he had the fraudulent 
purpose, but that the other co-ordinate departments of the State government were cor¬ 
rupt, or governed by a like fraudulent intent. These charges, as applied to the court and 
the legislature at least, are too grave to be believed upon this record, or in any case where 
the evidence is not of the most conclusive and satisfactory character. This conclusion 
should not be based upon mere presumptions—upon the impression of witnesses—upon 
the understanding of parties influenced not a little by their political and personal feel¬ 
ings and animosities. And yet, divested of all extraneous matter, this is all there is of 
this claim. 

But, going one step further, the charge certainly fails from the fact that there is not a 
particle of evidence that any member in either house of the legislature was induced to 
cast his vote in consideration of giving the certificate to Edwards. The claim is that 
he was to receive the votes of Democratic members in return for his action; and yet he 
received but one vote that can by possibility be classed among the Democrats (and even 
his political status is left doubtful). This person was a witness before us, and he says 
positively that he voted for Clayton, but that there was no understanding or agreement 
that in consideration thereof Clayton was to issue the certificate to Edwards. And there 
is no evidence nor a single circumstance in the whole record in the least in conflict with 
his statement. There is therefore absolutely nothing in the least supporting this charge. 

We are therefore brought to the conclusion, after a careful examination of all the 
facts, that there is nothing disclosed touching the charges made as found in the testi¬ 
mony of Wheeler and Whipple before the “joint select committee” impeaching the 
official character and conduct of Senator Clayton. We accordingly recommend the adop¬ 
tion of the following resolution: 

j Resolved, That the charges made and referred to the select committee for investigation 
affecting the official character and conduct of the Hon. Powell Clayton are not sustained, 
and that the committee be discharged from their further consideration. 

Respectfully submitted. 

GEO. G. WRIGHT. 

L. M. MORRILL. 


VIEWS OF THE MINORITY. 

Mr. Norwood submitted the following as the views of the minority: 

As the minority of the committee of three appointed by the Senate to investigate and 
report upon certain charges made against Senator Clayton, I have been unable to agree 
with the majority in the conclusions to which they have come, and I therefore beg to 
submit to the Senate the conclusions to which I have arrived after a careful review of 
all the facts. 

I regret that the majority of the committee did not see fit to lay before the Senate, 
embodied in their report in abstract form, more of the facts, as it would have enabled 
me to express my views in much shorter compass. I will, however, embrace none which 
I do not consider necessary to a correct understanding of the case as made. 

The general charge made against Senator Clayton is that he used corrupt means to 
secure his election to the United States Senate. This general charge embraces several 
specifications, to wit: 

1st. That he corruptly used It's executive power as governor of Arkansas in 1870 in 


POWELL CLAYTON. 


459 


appointing registrars of election to register votes for members of the general assembly, 
by which he was elected a United States Senator, who as his friends and in his interest 
would register with a view to elect candidates in favor of him for the Senate. 

2d. That when primary meetings were being held in the counties to nominate candi¬ 
dates tor that legislature he went about the State and, in person and by his friends and 
agents, manipulated these nominations in his own interest; and to effect this end used 
his executive patronage to intimidate candidates opposed to his election to the Senate. 

dd. That he either in person or through his friends and supporters for the Senate 
made a corrupt engagement, express or understood, by which his influence was to be 
given in favor oi the election of General John Edwards, the Democratic candidate for 
Congress, in consideration of the support to him of Edwards and his supporters for the 
Senate. 

4th. That in pursuance of this understanding he issued to Edwards the certificate of 
election in the face ol a clear majority, according to the official election returns in his 
(the executive) office, in favor of Judge Boles, the Republican candidate opposing Ed¬ 
wards. 

5th. That being under a pledge publicly and privately made to his political friends 
that he, if elected United States Senator, would not leave the governorship in the hands 
of Lieutenant-Governor J. M. Johnson, a Conservative, he corruptly instituted through 
his friends and supporters a proceeding by quo warranto to depose Johnson from office in 
order to clear the way to the Senate. 

6tii. That being elected Senator while the quo warranto was pending, when that was 
decided in favor of Johnson, he resigned the Senatorship, and afterward secured his re- 
election by inducing R. J. T. White, secretary of state, in consideration of a large sum 
of money, to resign and inducing Johnson to take White’s place. 

7th. That he corruptly procured the votes of many members of the legislature in 
support of himself for the Senate by paying money; by appointments of themselves and 
friends to lucrative offices; by granting to them and their friends State aid to railroads 
in which they and their friends were interested. 

Before proceeding to state the testimony bearing upon and sustaining these specifica¬ 
tions, I will remark, in order that the Senate may appreciate the extent to which Sen¬ 
ator Clayton must have wielded his executive power, the energy he must have displayed, 
and the means he must have employed to make sure his election, and to increase the 
probability of the truth of witnesses who detail these means, that his contest for a seat 
in the Senate extended over a period of two years. This fact he states near the close of 
his own testimony when endeavoring to explain the statement made by H. L. McCon¬ 
nell, his former private secretary and political supporter, that Clayton told him the day 
after the second election “the fight had cost him (C.) in the neighborhood of $20,000.” 
His extreme desire to be a Senator likewise throws much light on many acts whose full 
force might not otherwise be realized. In a conversation held by Clayton, Lieutenant- 
Governor Johnson, Thomas M. Bowen, Joseph Brooks, and J. L Hodges, a short time 
before Clayton’s second election, Brooks and Hodges both testify that Clayton stated he 
had long earnestly desired to be a Senator; that it was the dream of his life; that he was 
as ambitious as Caesar; and that had he his way he would sway the scepter of universal 
empire. 

I would further state that by the laws of Arkansas under her new constitution the 
governor is clothed with unusual pow r er and patronage. It is sufficient in this connec¬ 
tion to say that, with all the other power and patronage incident to the executive of each 
State, he has the power of appointing judges, sheriffs, and justices of the peace. We 
will have frequent occasion to remark with what vigor, if not rigor, such power, energized 
by such desire and ambition, was brought to bear in his Senatorial contest on friend and 
foe. 

The contest was exclusively Republican. Clayton had two opposing aspirants, Mc¬ 
Donald, former United States Senator, and a negro named White, both Republican. 
The legislative, executive, and judicial officers were all Republican. There was no hope 
for a Democrat to succeed. Of eighty-one members of the house in 1871 fifty-eight were 
Republicans and twenty-three Democrats, as stated by Tankersly, the speaker. The 
oppressive disqualification of votes excluded a sufficient number of Democrats from the 
polls to throw the power (except in a few counties) into the hands of the Republican 
party. And such was and is the extraordinary power confided to registrars of election 
to receive or reject a voter’s name—and to the board of review to retain or erase the 
names of voters registered—that the control of a governor over an election by appointing 
his friends and supporters on those two boards was only limited by his own integrity and 
that of his appointees. 

In this contest the Republican party, being overwhelmingly strong, split by its very 
weight into two factions. They came to be known respectively by the names of ‘ ‘ Brindle- 
tails ” and “ Minstrels.” Either claimed to be the elect. Governor Clayton led the lat- 


460 


SENATE ELECTION CASES. 


ter while Joseph Brooks was the acknowledged head of the former. The hosility felt 
toward each other was very bitter. Around either leader were gathered many ardent 
defenders. And as exemplars of the characters who were from first to last the warm 
and confidential friends of Governor Clayton I beg to give what the evidence shows to 
be the morale of the most prominent of those whose acts and sayings during the Sena¬ 
torial struggle are very important in determining the charges made against Senator Clay¬ 
ton. For from their confidential relations to him, from their constant conference with 
him during and before and after the session of the legislature which elected him, from 
their interest in his success and dependence on him for office and other favors, we are 
enabled to decide to what extent their acts and sayings were the acts and sayings of 
Governor Clayton. We learn also with what kind of men Governor Clayton used to 
accomplish his purposes. His chief adviser and constant attendant was TLomas M. 
Bowen. There is scarcely a witness who testifies to an interview with Governor Clayton 
during that contest, extending through two and a half months, who does not speak of 
Bowen being present. He attended all the caucuses of Clayton’s friends, was a regular 
lobbyist during the session for Governor Clayton, was most of his time in the execu¬ 
tive office, and was present at several long, protracted interviews held at night between 
Governor Clayton and others of the opposition whom Governor C. was endeavoring to 
appease. Judge Bowen’s motto, as testified to by Brooks and Hodges and undenied, was, 
“politics is but a game,” and that the admission or non-admission of a contestant for 
his seat in the legislature is a mere question of party policy. This declaration of polit¬ 
ical ethics will be seen bearing its fruit in the subsequent conduct of its author. 

Another adviser and confidential friend was John McClure, chief-justice of the su¬ 
preme court, the appointee of Governor Clayton. The testimony shows that he was 
frequently with Governor Clayton during his contest; that he was editor of a partisan 
gazette in Little Rock, advocating Governor Clayton’s election to the Senate while occu¬ 
pying the supreme bench; that as such editor he accepted a large sum of money from the 
friends of a bill to silence his opposition to the bill; and that he during that time en¬ 
gaged, or offered to engage for a large sum, to lobby a bill through the legislature. 
These facts, except the last, he establishes by his own testimony in this investigation. 
A third warm and zealous co-worker for Governor Clayton’s election was Judge Ben¬ 
nett, also of the supreme court of Arkansas, and appointed by Governor Clayton. The 
testimony of W. R. Rogers throws much interesting light on his character. He was a 
hotel-keeper in Illinois, failed, joined the Federal Army, went to Arkansas as a captain, 
resigned, and read law; was appointed about a month after his admission to the bar by 
Governor Clayton as circuit-court judge, and was soon after (during the session of that 
legislature) appointed by Governor Clayton to the supreme bench. His influence with 
Governor Clayton was supposed (says Rogers) to be greater than that of any man in the 
State, and hence during that session of the legislature, while Bennett was on the supreme 
bench, he accepted from Rogers and others interested in a large railroad bill a proposition 
to uSehis influence with the board of railroad commissioners (composed of Governor Clay¬ 
ton, White, secretary of state, and one Thomas) to procure a grant of State aid to the 
road, and charged $70,000 ($1,000 per mile) for his influential service. His influence was 
effective. The aid was granted, the bonds were issued, and Bennett received from Mr. 
Dorsey (interested with Rogers) $35,000. During the Senatorial contest he was very 
often in Governor Clayton’s office and on the floor of the house. 

Another scarcely less conspicuous character and equally zealous supporter of Gov¬ 
ernor Clayton for the Senate was Charles W. Tankersly. He is a Virginian; joined the 
Confederate army; deserted; joined the Federal Army; “ misappropriated public prop¬ 
erty” (a horse); was dismissed the service, and retired to private life in Philadelphia 
till the war closed. He then went to Arkansas; enlisted under Governor Clayton in 
his contest for the Senate; was elected a member of the legislature; was nominated by 
Clayton’s friends for speaker and elected. McLane swears that Tankersly told him 
Governor Clayton sent for him (T.) before the legislature assembled and requested him 
to run for speaker. It will be seen that in this contest he was not a deserter, but was true 
to his colors, and received, after Clayton’s election, his reward in his appointment as 
superintendent of the penitentiary. 

Another and very prominent actor in these scenes, and a devoted friend of Governor 
Clayton, was O. A. Hadley. He was a senator in that general assembly. He was Gen¬ 
eral Clayton’s agent to make the offer to R. J. T. White to pay him a large sum of 
money to vacate his office, and thus remove an insurmountable obstacle to Clayton’s 
election to the Senate, as I shall show hereafter. That being accomplished, Hadley was 
elected president of the senate (vice J. M. Johnson, who took White’s place), and while 
governor he continued to preside over the senate until certain bills (such as the levee and 
others) were passed. As this dual service as president of the senate and governor was 
contemporaneous, and the first office was resigned just after these immense money bills 
were passed, it may not be amiss to state that the witness McLane swears that Chancy 


POWELL CLAYTON. 


461 


Stoddard, who paid McLane a large sum ($5,000) in bonds to silence his newspaper and 
to get his services as a lobbyist for the levee bill, and who, by his own testimony, stands 
convicted ot bribing other members of the legislature to vote for the levee bill, told him 
(McLane) that he (Stoddard) paid Hadley $20,000 in bonds for signing the levee bill. 
This Hadley denies, while Stoddard says he does not know the name of but one mem¬ 
ber, named Prigmore, who got the bonds, though he had reason for knowing that others 
shared them. As, however, the fact is not denied by any witness, not even by Clayton 
or Hadley, that Hadley bought off White, it is not much of a strain on even human 
charity to believe that a man in the market to buy will not arouse a sleeping conscience 
to stand guard against his being bought. 

There are other actors in this drama whose moral figures would not compare unfavor¬ 
ably with those already but partially delineated; but as I have sketched the chiefs, I 
leave the others to speak for themselves through their own and the mouths of other 
witnesses, and will now proceed to a summary statement of the facts. And in doing so, 
as a matter of convenience, and to economize time and space, after once introducing a 
party or witness by his full name, I will employ only his surname. 

I will take the specifications in the order in which I have arranged them, and while 
I treat each separately for the purpose of grouping like facts, that they may be 3een at 
one view, as will be seen hereafter, I resolve the seven specifications into three charges, 
all and each of which 1 think the testimony and evidence sustain. 

And, first, as to the corrupt appointment and use of registrars. It is not unreason¬ 
able to assume that Governor Clayton after the canvass of over a year, according to his 
own statements, prior to the summer of 1870 (for in March, 1871, he stated that it had 
extended for two years), with his ambition to be a Senator, selected his own friends to 
register the electors of the general assembly, and of officers to be elected in November, 
1870. This assumption is borne out by the testimony. 

In the county of Pulaski he appointed James Y. Fitch and E. H. Chamberlain regis¬ 
trars. There is much evidence pro and con as to the fraudulent registration made by 
that board, and without stopping to settle the point of veracity, it is sufficient to say 
that without any prior announcement of his intention, Chamberlain, who was one of the 
most zealous of the partisans of Clayton, and worked from first to last for his election, 
and who was introduced as Clayton’s witness in this investigation, just after registration 
closed, and within five days of election, on the 8th of November, announced himself as a 
candidate on the Clayton ticket for the legislature; and while by the returns, as set 
forth in the testimony of the witness J. L. Hodges, he (Chamberlain) received but 
1,892 votes from the counties of Pulaski and White, constituting his district, out of a vote 
of about 5,000, he was returned by the secretary of state to the lower house as one of 
the members-elect, and obtained his seat. And from that time to the end of the dis¬ 
graceful struggle, carried on in and out of the legislature for near two and a half months, 
for the election of United States Senator, he was not only the supporter but the con¬ 
fidential agent and adviser of Governor Clayton. James Y. Fitch was rewarded by an 
executive appointment to the office of circuit clerk of Pulaski County and clerk of the 
crimimal court, which court was created at that session of the legislature. 

The witness A. A. C. Rogers says that in Columbia County Clayton appointed a boy 
from Illinois, named Ryan, registrar, and that in Hot Springs County he appointed Z 
L. Cotton as registrar, who, it was generally understood, lived in the county above and 
out of the district, though by the law of Arkansas the governor is required to appoint a 
resident of the county, who has resided in the county six months before the registra¬ 
tion. 

The witness Met. L. Jones states that Clayton appointed a man named George A. 
Wilkins registrar in Columbia County, and that Wilkins was afterwards appointed jus¬ 
tice of the peace. A justice of the peace in Arkansas has jurisdiction up to $500, and 
the fees of office are high. That W. H. Atkins, registrar for Union County, was also 
afterwards apppointed a justice of the peace. 

The witness Jones states that Cotton was a resident of Mount Ida, Montgomery 
County, while acting as registrar in Hot Springs County, and was afterward appointed 
clerk of the Montgomery County court. 

As evidence of the sympathy existing between these registrars and Governor Clay ton, I 
refer to an interview detailed by the witness Met. L. Jones, between himself, Gover¬ 
nor Clayton, and Judge Bearden. He says such were the frauds being committed by 
the registrars in Columbia and Union Counties, that many citizens of those two counties 
met in convention and appointed Jones and Bearden a committee to wait upon the gov¬ 
ernor and make complaint and petition for redress. He stated the case; told Governor 
Clayton that he had affidavits of fifteen substantial men in his county to the facts. Gov¬ 
ernor Clayton said, at first, that was ex parte. Witness offered to put them in proper 
form. Governor Clayton then said it was too late to investigate (though the witness 
states the interview was fifteen days before the election, and the law of Arkansas is that 


462 


SENATE ELECTION CASES. 


registration closes only ten days before tlie election). Jones then asked him to remove 
the registrar. Clayton replied he did not have the power; to which Jones rejoined he had 
already removed some. Clayton said he had, but that he thought he had transcended his 
authority, and that he would refer the matter to the courts. When asked if he would 
not interfere then, he said he would after the election. Jones said then he would apply to 
the courts, and Clayton told him he would not submit to that interference by the 
courts before the election; and if he (Jones) attempted to arrest the registrars before 
the election, he would treat the act as insurrectionary, and would employ force, i neces¬ 
sary. Met. L. Jones was an intelligent man and a lawyer. 

In this connection I will give the first and second sections of the act of July 15, 1868, 
regulating registration of electors in Arkansas, page 52, statutes of 1868, and will state 
that there is nothing further in the whole act, or any other law of Arkansas, brought to 
the notice of the committee, which abridges the power therein conferred on the gov¬ 
ernor. 

“Section 1. That on or before the 1st day of August, 1868, and every two years 
thereafter, the governor shall, with the advice and consent of the senate, appoint three 
loyal, competent, and discreet citizens in each county, who shall have resided at least 
six months in the county next preceding their appointment. Said persons shall be styled 
and called board of registration, one of whom shall be designated by the governor as 
president of said board: Provided , That in case no such person can be found in each 
county within the State, then and in that case they shall be appointed from the county 
most convenient thereto, each of whom shall serve two years, unless removed as pro¬ 
vided hereinafter: And provided further, That the governor, in lieu of one of the citizens 
to be appointed as above provided for in this section, may designate a justice of the peace, 
notary public, or constable as one of the members of the board of registration, who 
shall in every such case be designated as the president of said board; and every justice 
of the peace, notary public, or constable that may be designated by the governor as a 
member of said board for any county in this State shall, in addition to the duties now 
imposed upon him by law, discharge the duties of president of such board of registra¬ 
tion according to the provisions of this act. 

“Sec. 2. The governor shall fill any vacancy occurring in any of the appointments 
made by him, and may in his discretion remove any one so appointed by him for incom¬ 
petency or other sufficient cause. The secretary of state shall cause notice by certificate 
to be given to each of the persons, and shall also transmit to the clerk of the county 
court of each county the names of the persons so appointed as board of registration.” 

With this act before him, and the fact brought to his notice that he had already re¬ 
moved some of the registrars, he stated to Jones as a reason for not desiring to interfere 
with that alleged fraudulent registration in Columbia and Union Counties that he did 
not have the power to remove them. His first answer was it was too late; second, I 
have not the power; third, go to the courts for redress; and, fourth, you shall not resort 
to the courts until after the election, and if you do I will consider you an insurrection¬ 
ist and put you down with a military force. 

To show the discretion and power of these registrars, as well as to illustrate the benefi¬ 
cence of the then existing government in Arkansas, and the freedom of opinion thereby 
tolerated at that time and now. so far as I am advised, I will quote the eleventh section 
of the act above referred to: 

“Sec. 11. That no person shall be registered who during the late rebellion took the 
oath of allegiance to the United States, or gave bond of loyalty or for good behavior, 
unless he shall show by satisfactory evidence that he has ever kept this said oath or 
bond inviolate, or that he has openly advocated or voted for the reconstruction measures 
of Congress, or voted for the constitution at the civil polls at the constitutional election 
of 1868.” 

I will remark this act was passed during Governor Clayton’s term of office and was of 
course approved by him. Referring to the words in the last section quoted and itali¬ 
cized by me, I challenge all Christendom to produce its parallel for anti-republicanism 
and tyranny. 

It is very easy to see how, with such harsh and at the same time mobile power lodged 
in the discretion of the instruments and favorites of a governor acting in the capacity 
of registrars, they could manipulate the election of a legislature to secure an overwhelm¬ 
ing majority. 

As evidence as to how Governor Clayton was disposed to use that power I refer to the 
statements of the witness A. A. C. Rogers. Rogers was a candidate for Congress against 
O. P. Snyder at that election. In August, 1870, before Rogers entered the race, know¬ 
ing, as he says, how registration had been conducted in the former election for Congress 
in 1868, he called upon Governor Clayton to know if the people of Arkansas would have 
a fair election. He says Clayton smiled and said that depended very much on circum¬ 
stances. What those circumstances were will appear hereafter. Rogers states that 


POWELL CLAYTON. 


463 


about two weeks before the election he complained to Governor Clayton of the abuses 
in registration in his district, told him that out of about 2,200 voters in Union County 
there had been registered but about 700 to 800, and that in Chicot County they were 
registering about 1,200 railroad hands, non-residents, who were there employed by one 
Jackson E. Sickles, a railroad contractor. Rogers states, as does Sickles also, that Sickles 
was a personal and political friend of Governor Clayton and desired him to be Senator. 
Governor Clayton said to me, “I have no control over my registrars and I cannot do 
anything with it. ’ ’ Rogers replied, ‘ ‘ Governor Clayton, you have attempted to control; 
in two or three instances you have removed registrars and appointed others, and now 
you tell me you cannot do it.” To which Clayton replied, “Damn it, I do not know 
but what I did wrong, but the damned rebels there ought not to vote anyhow.” Rogers 
replied, “ Governor Clayton, you are not the constitution of the State. It is your busi¬ 
ness to enforce the law if it dooms every man in the State, and when you assume to be the 
constitution you assume too much.” Rogers called his attention to two hundred sworn 
certificates of persons debarred the right to register. Clayton replied, “I have not time 
to correct it now. ” Rogers says this was about nineteen days before the election. Much 
more was said with which I will not encumber my remarks, but which illustrates the 
manner in which Governor Clayton conducted that registration. Governor Clayton ad¬ 
mits the conversation and does not deny the language, but explains by saying that he 
referred to Ku-Klux outrages existing at the former election, in 1868, and that he said 
to Rogers that if they were to be repeated he would control the registration to prevent 
them, or words to that effect. The Senate will be enabled to judge between the two 
statements when this conversation is given more in detail. Rogers states that Clayton 
removed Judge Alexander, in Ouchita County, after registration was complete, and ap¬ 
pointed a man named Thompson registrar, who lost the registration book and ran away ; 
that he removed Hicks, a registrar in Hempstead County, and appointed Beldin, the 
uncle or father of D. P. Beldin, senator from Hot Springs County, who was one of Clay¬ 
ton’s strongest friends during his Senatorial contest. 

The second specification is as to how the nominations for members of the legislature 
were manipulated by Governor Clayton and his friends in his own interest. On this 
point I will be brief, contenting myself with one transaction by way of illustration. 
The witness Judge Story testifies that he was a candidate for the legislature from Co¬ 
lumbia County; that a man named Archer, a supporter of Clayton, came into the county 
and said that Governor Clayton did not desire him to go to the legislature and asked 
him if he intended to persist in his candidacy; he replied that he did. Archer then 
produced from his pocket an order or proclamation issued by Governor Clayton and 
threatened Story that if he did not desist and allow Clayton’s friends to be elected that 
the public printing, which Story, a Republican, was then doing in the Magnolia Flower 
(a gazette of which he was editor), would be taken from him and given to another paper. 
He was then doing the public printing for two counties, Union and Columbia. The 
public printing was afterward given to the South Arkansas Journal, printed at Camden, 
Ouachita County, forty miles off, not more than fifteen copies of which the witness 
states were taken in his county. This patronage consisted of publication of notices 
from the probate courts, executors’ and administrators’ sales, &c., and for the two coun¬ 
ties was worth to Story $3,000 per year. This printing was taken away after the dele¬ 
gation from that county reached the legislature and persistently opposed the election of 
Governor Clayton. The witness asked Governor Clayton why it was done. He gave 
no reason, but referred to the course the delegation had taken toward him. Several 
other witnesses besides Story also testified that while the primary meetings were being 
held for nominations throughout the State, Clayton was going about the State providing 
for the nomination of men favorable to his election. The witness J. T. White testifies 
that after the nomination was made in his county, Clayton appeared there and insisted 
upon a renomination, which was carried out and the ticket elected. The witness, who 
was nominated the first time, was retained on the ticket as a friend of Governor Clayton. 

The third and fourth specification charges a corrupt agreement with the Democrats, 
and particularly with General John Edwards, Democratic candidate for Congress, in pur¬ 
suance of which the Democrats were to support Governor Clayton for the Senate, and 
Governor Clayton was to aid in the election of Edwards, and to give him the certificate 
of election. The inception of this transaction occurred in October, 1869, as testified by 
the witness A. A. C. Rogers. He says that at a meeting of the most prominent Demo¬ 
crats in Little Rock, assembled to consider the political situation of the State, Judge T. 
M. Bowen appeared with a written proposition from Governor Clayton to form a combi¬ 
nation with the Democrats for their support. He said he was right from Governor Clay¬ 
ton, who approved it, and that he was there in Clayton’s interest. His proposition was 
that Governor Clayton would control the election so as to secure a legislature favorable 
for him for the Senate, and that Clayton, in consideration of the Democratic support, 
would recommend to the legislature such measures as would relieve the people from the 


464 


SENATE ELECTION CASES. 


disfranchisements of the constitution; that in the counties where Clayton’s friends had 
the majority he was to name the candidates; in the counties where the Democrats were 
so greatly in the majority that he could not control them, they were to name the candi¬ 
dates. There was no Republican present except Judge Bowen. Bowen said that the 
witness (Rogers) was to acquiesce in this arrangement. Another meeting was held at 
Mr. Garland’s office that night, and a consultation ensued. Rogers dissented to Clayton’s 
proposition, and withdrew from the meeting. Witness met Governor Clayton the next 
day at the fair grounds. Clayton referred to the meeting the night before; said that the 
arrangement proposed was “about the best thing that could be done.” Bowen stated 
distinctly, in answer to an inquiry propounded by A. H. Garland, one of the Democrats 
present, that this proposition and the terms upon which it was made came directly from 
Governor Clayton. The proposition shows very clearly two things: first, his anxiety to 
combine with the Democrats for his election, and, secondly, that he was perfectly will¬ 
ing to use the executive power in manipulating the election of members of the legislature 
to the same end. It also reflects much light upon the two charges made against him, 
that he did conduct the registration for that election unlawfully, and, therefore, cor¬ 
ruptly, if to secure his election; and that he agreed to issue the certificate of election to 
Edwards, in consideration of the support of Democrats. 

As Governor Clayton required that the witness Rogers should accede to this proposi¬ 
tion, and as he dissented, there is no evidence before the committee that the combination 
then proposed was ever carried out in that form; that is to say, there is no evidence 
that the Democrats allowed him to name their candidates. But as to whether his pur¬ 
pose was carried out as revealed in that proposition will be seen when we come to con¬ 
sider his conduct and motives in issuing the certificate to General Edwards. 

There are other similar facts disclosed in the evidence, but I will now proceed to col¬ 
late the facts bearing upon the charge of issuing the certificate of election to General 
Edwards. 

There were two Republican conventions held at Fort Smith to nominate candidates 
for Congress. Judge Thomas Boles was nominated as the regular Republican candidate; 
E. J. Searle was nominated by the other. Edwards states that he ran as an independ¬ 
ent candidate—a quasi-Republican—but supported by the Democrats and Conservatives. 
Id a short time Searle withdrew, leaving Boles and Edwards to run the race. The ma¬ 
jority of this committee, in their report, assume as an uncontroverted fact that Governor 
Clayton supported Boles, the regular Republican; but there is hardly any fact in the 
whole investigation about which witnesses differed more, as I will now proceed to show, 
and if the evidence does not establish the fact that Clayton was supporting Edwards, it 
undoubtedly shows that if supporting Boles, Edwards was the subject of much well- 
plied coquetry; for Edwards and his friends were certainly under the impression that 
Edwards had the executive favor. The witness H. L. McConnell swears in terms that 
Governor Clayton supported Edwards. And just here, as an attempt was made, in con¬ 
sequence of the strength of McConnell’s testimony against Clayton on this and other 
points, to impeach his veracity, and as a majority of the committee in arriving at their 
conclusion have entirely ignored his testimony,' I will state the reasons why I give 
credence to his statements. He went to Little Rock in 1869, with a letter of introduction 
to Governor Clayton, going from Leavenworth, Kans., where Governor Clayton formerly 
resided. Being an editor, and evidently a very intelligent man, he was engaged by Gov¬ 
ernor Clayton as his private secretary. He commenced advocating, in a public gazette, 
Governor Clayton’s election to the Senate, and continued in both capacities until Gov¬ 
ernor Clayton’s election. These facts are not denied by Clayton himself. They were 
certainly on the most intimate terms. Sustaining those relations to Governor Clayton 
for two years, he certainly had full opportunty to ascertain during that time whether 
McConnell was a man of veracity; for let it be borne in mind that his testimony is not 
discredited by contradiction, but, on the other hand, is corroborated in many points by 
several witnesses. The attempt to discredit him was made by introducing two or three 
parties, unknown to the committee, who swear that McConnell’s reputation while in 
Leavenworth, and afterward in Little Rock, for veracity was bad. That he was the 
holder of the political secrets of Governor Clayton is fully sustained by Clayton’s own 
testimony, for, some time after the Senatorial election, and in 1871, two witnesses, Mr. 
and Mrs. Parish, whose voluntary affidavits were admitted in evidence by consent, swear 
that Governor Clayton during McConnell’s absence from his room, which was in Parish’s 
dwelling, entered McConnell’s room, opened his trunk, ransacked it, and examined a 
large number of letters therein, and took away a large bundle of papers. The witness 
says they were letters which show Governor Clayton’s relations to Edwards. Clayton 
says they were letters which he had given to McConnell to answer, and which McCon¬ 
nell had not answered. McConnell, who says that he occasionally—two or three times 
a year—gets on a drunken spree, was at that time drunk, and had been absent from his 
room for a day or two. Their relations were certainly extremely confidential, not only 


POWELL CLAYTON. 


465 


from the testimony of other witnesses, hut from the admissions of Governor Clayton 
himself; besides as to several material statements Governor Clayton corroborates the 
testimony of McConnell. As, for instance, McConnell testifies that Clayton offered 
Grady, a member of the legislature, the sheriffalty of his (Crawford) county to vote to 
impeach Lieutenant-Governor Johnson, and about that Clayton says he has an indistinct 
recollection of McConnell’s speaking to him about the sheriff’s office of the county, but 
does not remember that he made any promise or pledge. 

^ Again, McConnell says that Clayton told him his election had cost him $20,000. 
Clayton admits he told him that it cost him a great deal of money, and explains in what 
way he spent it; and it is most noteworthy in determining the credence to be given to 
McConnell, that Governor Clayton, while testifying in his own behalf, and being repre¬ 
sented by two counsel supposed to be learned in the law, and to understand how to con¬ 
duct a defense, to wit, John McClure, chief-j ustice of the supreme court of Arkansas, 
and Thomas M. Bowen, ex-justice of the same bench (McClure appointed by Clayton, no 
doubt on account of his judicial learning), did not in all of his testimony refer, by 
denial, to any of McConnell’s statements, which are numerous and very damaging if 
true, except the two instances that I have referred to above. 

And now to resume the evidence bearing upon Edwards’s case. 

McConnell, who by editorials and correspondence was advocating Clayton’s election, 
and was on such terms of intimacy with Clayton, publicly and privately opposed Boles 
and advocated Edwards’s election. He produced five letters written to him by Edwards 
during the campaign, the first dated as early as the 19th of January, 1870, in which he 
says, “We are bound to sweep the State and elect Clayton to the Senate; most of the 
Democrats will vote for us. I am glad you are with us for Clayton.” The second, 
dated November 25, 1870, says: “ If we can succeed in getting the returns of the legal 
polls sent up, I am satisfied the governor will disregard the bogus returns and give me 
the certificate. ’ ’ In another letter, written before Clayton’s first election, Edwards says: 
‘ ‘ I have succeeded admirably in squelching out several contests in other counties, urged 
on by the ‘Brindle-tails’ in order to compromise the contest from Pulaski.” * * * 

“ If Clayton should count the five townships and give Boles the certificate, a howl would 
be raised by Conservatives and Republicans, that would let in Brooks and Hodges (two 
Republican candidates for the legislature, who were contesting for their seats, and op¬ 
posed to Clayton, one of them, Brooks, a very influential man), and keep out the others 
who had publicly pledged to his support.” The fourth letter says: “ Clayton has the 
inside track; can be elected, and above all will receive the support of all the Conserva¬ 
tives, but if he should fail to give me the certificate, such a howl as will go up you 
never did hear.” In the fifth letter, dated February 12, 1871, and which was written 
after Clayton’s first election (January, 1871), and before Edwards got his certificate (Feb¬ 
ruary 20,1871), Edwards says: “From the vote ousting the great high priest, Joe (mean¬ 
ing Joseph Brooks, the senator, who had been turned out of the senate by Clayton’s sup¬ 
porters), I shall be under more obligations to the governor for the certificate than any one 
else, and I think I can, in turn, render him essential service, as they intend making war 
on him on his taking his seat.” I call attention to the letter dated November 25, 1870, 
in order to state in this connection that Edwards swears that he went from Fort Smith, 
his home, to Little Rock, within ten or fifteen days after the election, which was held 
on the 8th of November, to see Governor Clayton about his certificate; that Clayton then 
and there said that he (Clayton) would be governed in issuing the certificate by the action 
of the courts and legislature. This statement shows that Clayton already had the re¬ 
turns before him, and knew the result of the returns. Boles swears that he first called 
on Governor Clayton to see about the certificate, after the expiration of thirty days from 
the election, which must have been after the 8th of December, and that Clayton then 
told him that he had not examined the returns because he had not been well; that Clay* 
ton said nothing about the result of the election as shown by the returns, but said that 
Boles might go to Washington; he (Clayton) guessed the certificate would be all right. 

Boles testifies that he was the regular Republican nominee for Congress: that Searle 
was the nominee of the other faction; that Clayton considered him (Boles) opposed to 
Clayton’s election to the Senate. 

Edwards, witness for Clayton, testifies that he was an independent Republican candi¬ 
date; that Clayton favored Boles’s election; that he (Edwards) was in favor of Clayton 
for the Senate. 

The returns, it is admitted on both sides, in the executive office showed that Boles 
was elected over Edwards by a large majority; but Clayton refused to give the certificate 
to Boles. The law of Arkansas requiring the governor to issue the certificate is as follows: 

“It shall be the duty of the secretary of state, in the presence of the governor, within 
thirty days after the time herein allowed to make returns of elections to the clerks of 
the county courts ( i . e., five days after the election), or sooner if all the returns shall have 
been received, to cast up and arrange the votes from the several counties, or such of 

S. Doc. 11-30 



466 


SENATE ELECTION CASES. 


them as have made returns for such persons voted for as members of Congress, and the 
governor shall immediately thereafter issue his proclamation declaring the persons having 
the highest number of votes to be duly elected to represent the State in the House of 
Representatives of the Congress of the United States, and shall grant a certificate thereof 
under the seal of the State to the person so elected.”—(Statutes of Arkansas, 1868, page 
325, section 50.) 

Governor Clayton refused to issue his proclamation declaring Boles elected, and never 
did issue to him the certificate of election. His only excuse for refusing to comply with 
the law above quoted is that a few days after the election certified copies of affidavits, 
accompanied by a petition purporting to be signed by several candidates for the legisla¬ 
ture in Pulaski County, asking him not to count the returns from that county, on account 
of alleged frauds, were laid before him. These certified copies are signed by Stoddard 
(brother of Chauncey Stoddard, who bribed Prigmore) and other members of the legis¬ 
lature. When Clayton was on the stand he could not recognize the handwriting of but 
two of these petitioners, though he knew them all well, and these two are Howard (a 
Democrat) and Chamberlain (a Conservative, who was his political friend and voted for 
him for Senator). Why certified copies of affidavits were used no witness explains. Why 
only the signatures of Howard and Chamberlain are proved (and that by Clayton only) 
to be genuine the committee were not informed. But here comes in an extraordinary fact 
which may be, and in my opinion is, the key to the mystery. No one ever saw those affida¬ 
vits and petition until this investigation commenced, though Clayton says he received 
them the 17th of November, 1870, so far as the testimony shows, except Clayton and 
Chamberlain. K. J. T. White, secretary of state, swears he never saw them. Barton, Clay¬ 
ton’s private secretary and brother-in-law, and his witness, makes no reference to the 
existence of these affidavits and the petition. And when Clayton was asked how these 
papers came to be in his possession now, his significant reply was that when he vacated 
the executive chair he retained them, “ deeming they would probably be of some im¬ 
portance in the future.” Boles also swears that in his interview with Clayton, thirty 
days after the election (about 8th December), when Clayton told him to “ go on to Wash¬ 
ington; he [Clayton] guessed the certificate would be all right,” Clayton did not even 
refer to the existence of these affidavits and this petition. 

Another part of this history necessary to be known is this: Chamberlain and Howard 
were beaten by the returns first made from Pulaski County. The clerk of the county, 
McDiarmid, had received two sets of poll-lists; had rejected one and certified the other 
and sent it to the secretary of state. The one certified defeated Edwards and elected 
Boles—defeated Chamberlain, Howard, Gantt, Mitchell, and others, and elected J. L. 
Hodges and others. 

It was all-important, therefore, in order to justify issuing the certificate to Edwards, 
that the rejected polls in Pulaski should be counted, and the polls certified to the secre¬ 
tary of state should be rejected. When Edwards called on Governor Clayton, about ten 
or fifteen days after the election, they and Chamberlain held a conference, and it was 
then and there agreed that steps should be taken to get the returns excluded by Mc¬ 
Diarmid sent up. Chamberlain sued out from the supreme court, then consisting of 
McClure, Bowen, and Wilshire (another adherent and appointee of Clayton), a manda¬ 
mus to this clerk. A case was made and the court decided that the excluded polls were 
the legal votes. But still the certificate was not issued, though this decision was ren¬ 
dered two days before the legislature met. The election for Senator was yet to take 
place, and the support of Edwards and the Democrats was to be given. The election 
occurred on the 11th of January, 1871, and all the Democrats except five voted for Clay¬ 
ton. He accepted the position as Senator and still would not issue the certificate. Two 
of the candidates for the house in Pulaski County, Gantt and Mitchell, had proposed to 
Clayton, Edwards, and their friends that they must desist from this contest for seats if 
Clayton would issue the certificate to Edwards. When Clayton was elected on January 
11, as above stated, Gantt (who was authorized by Mitchell to act for him) complained 
because Edwards was not commissioned. On January 27 Gantt addressed the following 
letter to the house: 

To the honorable the house of representatives of the State of Arkansas: 

I learn from the published proceedings of the house of representatives in the city 
papers of this date that it was announced in your honorable body on yesterday that I 
had retired from any contest for a seat therein, and that the protest and papers presented 
on the first day of your session by Hon. L. B. Mitchell and myself to abandon our con¬ 
test on condition that a certificate of election as member of Congress was issued to Gen¬ 
eral John Edwards. I certainly understood this to be fully assented to, and in compli¬ 
ance with that agreement prepared a formal abandonment of the contest, in writing to 
be used only after such certificate should have been issued to General Edwards. ’ 

Believing that General Edwards had been legally elected a member of Congress and 


POWELL CLAYTON. 


467 


that lie could render efficient service in that capacity, hut fearing that the issuance of 
his certificate of election was likely to be delayed, if issued at all, and desiring that it 
should be issued, we consented to surrender our individual rights in the premises for 
what we considered to be the public good. 

Hon. L. B. Mitchell and I are able to show, by the most indubitable evidence, that 
we were legally elected representatives from the tenth district, and respectfully ask that 
we be afforded an opportunity of doing so; that the papers connected with our contest 
be rereferred to the committee on elections, and that we may have a fair and impartial 
hearing. 

R. S. GANTT. 

Before the date of Gantt’s letter the court had decided that the excluded polls were the 
legal votes in Pulaski County, which gave Edwards a majority of 50, and the legislature, 
by joint committee, had decided the same question in the same way. This result, let it 
be remembered, was all Clayton said he desired to decide to whom he would issue the 
certificate. Hence Gantt complained, because the agreement had been carried out by 
him and the other Democrats and Clayton had not issued the certificate to Edwards. 

I will now state some facts which furnish an explanation of this delay or refusal. 
The fact is sworn to by many wilmesses on both sides; indeed, it is admitted by Clayton 
that during the canvass for the election for the legislature and Congressmen he pledged 
himself to his political friends that he would not if elected Senator accept the position 
and leave Lieutenant-Governor Johnson in office to become governor. This pledge was 
on him at his first election in January. He, as is alleged, had a proceeding quo warranto 
instituted against Johnson to turn him out of office on the sole ground that Johnson, 
who was elected with Clayton in the spring of 1868, and had been in office for over two 
years, and presiding over the senate by virtue of his office, had not taken the oath of 
office as lieutenant-governor within the time prescribed by law. This was more than 
even the supreme court of Arkansas, constituted, as I have shown it was, could stand. 
The quo warranto failed, and Clayton kept his pledge by resigning the Senatorship. 

The Democrats and Conservatives then became furious. Gantt sent in his letter to 
the house. Articles of impeachment were preferred against Clayton in the house, and 
fourteen of the friends of Clayton, to prevent their presentation to the senate, deserted 
the senate and 11 took to the brush. ’ ’ The certificate was issued to Edwards, and Gantt 
and Mitchell gave up the contest for their seats. From this time to the date of Clayton’s 
second election, on the 15th March, 1871, two other means were adopted to secure his 
election. They constitute the foundation on which the sixth and seventh specifications 
rest. 

I will now proceed with the evidence bearing on the Clayton-Edwards agreement. 

Boles testifies that Clayton was unfriendly to his nomination; that during the canvass 
Clayton asked for his support for the Senate, and he told Clayton that he must stand 
neutral between him and McDonald. 

Edwards, witness for Clayton, as has already been shown by his letters to McConnell, 
was supporting Clayton. He says in substance, ‘ ‘ Clayton, Chamberlain, and I agreed 
on the investigation which was to change the result in Pulaski County by which I would 
get a majority. Chamberlain agreed to take the matter in hand. Chamberlain may 
have told me that he was moving in the investigation at the instance of Governor Clay 
ton. Clayton and I agreed on the matter as any two would agree to any proposition. I 
always saw Clayton privately. Chamberlain told me that he had talked with Clayton and 
that Clayton desired the investigation to go on—just such an investigation as afterward 
took place. [Investigation here referred to was the one afterward conducted by a joint 
committee of both houses, Samuel Mallory, senator, chairman, for the double purpose— 
first, to furnish a ground for issuing a, certificate to Edwards, and, secondly, to exclude 
certain candidates from Pulaski and other counties who were opposed to Clayton’s elec¬ 
tion, and who by the returns then in the executive office were elected.] Chamberlain 
always said he desired Clayton’s election. I left home on my way to Washington about 
the 23d of February; was informed by letter before leaving home that I would get my 
certificate. [Certificate was issued the 20th February.] I heard a rumor of this bar¬ 
gain between Clayton and myself before the certificate was issued; denied it privately 
but not publicly. Gantt told me that if the investigation (by Mallory committee) was 
made I would go to Congress and he and Mitchell would in that case withdraw from 
their contest. The polls which McDiarmid, the clerk of Pulaski County, had excluded 
were counted by the Mallory committee, and those he returned were rejected; this gave 
me 50 majority. The Mallory committee reported after Clayton’s first election. No 
one ever approached me on the subject of a bargain further than as to the withdrawal of 
Gantt and Mitchell. I probably wrote letters urging Clayton’s election. My first in¬ 
terview with Governor Clayton about my certificate was ten or fifteen days after the 
election. He said in that interview he would be governed by the action of the courts 


468 ' 


SENATE ELECTION CASES. 


and the legislature. Democrats and Clayton Republicans told me the same thing. Both 
Clayton and White, secretary of state, told me the election returns were late coming 
in.” 

McConnell says: “Governor Clayton supported Edwards in the election. He told me 
he would issue the certificate to Edwards. Neal, Democrat, told me that there were great 
complaints among the Democrats that Clayton had not given the certificate to Edwards. 
I told Clayton of the complaint; there was at.that time a coalition between the Demo¬ 
crats and Brindle-tails to unseat Clayton men in the legislature. I told him Whitesides, 
elected sheriff of Crawford County, had not received his commission, and suggested that 
he commission Whitesides to conciliate the Democrats. Clayton assented, and informed. 
me that he would issue the certificate to Edwards. He said, however, that commission¬ 
ing Whitesides would raise a howl among the ultra-Republicans. I saw Gantt on the 
morning of Clayton’s second election; told him Clayton had fulfilled his pledge by issu¬ 
ing the certificate to Edwards and that he (Gantt) ought to do something for him; Gantt 
said he would go out and do what he could. Judge Walker, of Washington County, sent 
word by Edwards to Clayton that if he treated Edwards right Walker would urge his 
representatives, Owen and Caraloff and others, to vote for him. 

“While the impeachment was pending against Clayton, Edwards told me he could 
not do much to relieve him unless he (Edwards) got his certificate, and asked me to tell 
Clayton that Edwards says that Clayton had promised to give him the certificate and 
was only waiting for a report from the Mallory committee; that the report had been 
made and the decision of the court in the mandamus case rendered, and that he wanted 
his certificate. I told Clayton, and the certificate was given the same or the next day. 
The impeachment was on the 16th, and the certificate was issued on the 20th of Feb¬ 
ruary. I was acting as the medium of communication between Clayton and various 
parties.” 

Chamberlain, witness for Clayton, says: “Gantt placed the matter of his resignation 
to assist Edwards in my hands, and said that he represented Mitchell also. By changing 
the returns from Pulaski County, Edwards would be seated. I proposed this to Edwards, 
and, with his approval, saw Governor Clayton about it; when the legislature met a reso¬ 
lution was introduced to raise a committee. Judge Bowen, Tankersley, and Judge 
Bennett were present when I saw Clayton. Clayton told me to hurry up the mandamus 
case, and to get the other returns from Pulaski County. I was a supporter of Clayton, 
and opposed Boles. Edwards was urgent for the investigation. Judge Bowen furnished 
the names of the committee to me, and I handed them to Tankersley, the speaker. 
Tankersley left off C. C. Waters and put on Mr. Ham, because Waters was dilatory about 
the matter. Judge Bennett, then circuit judge, went into the house and urged Waters 
to act. Soon alter Bennett was appointed supreme court judge. Judge Watkins brought 
a paper to me from Gantt, proposing to decline a contest for his and Mitchell’s seats if 
Clayton would issue a certificate to Edwards. Bennett took the paper to Clayton, re¬ 
turned, and said Clayton would not sign it. Gantt sent in a letter to the house stating 
he would claim his seat unless the agreement to issue the certificate to Edwards was 
carried out. The certificate was issued, and Gantt and Mitchell withdrew. Saw paper 
from Gantt in Judge Watkins’s hands containing his proposition about Edwards, and 
stated the fact to Clayton, Bowen, and Bennett. This was not long before the Mallory 
committee was raised. I supposed Bennett to be one of Clayton’s confidential advisers 
and friends; almost always saw him in Clayton’s office, and saw him frequently on the 
floor of the house. The main object of the investigation was to seat Edwards in Con¬ 
gress; this was understood all round. It was understood by me in advance, and, I sup¬ 
posed, also by Bowen; that the committee of investigation, whose names Bowen gave me 
to hand to Tankersley, would report so as to seat Edwards. Bowen was then supreme 
judge, and I think Judge Bennett knew all about the committee. Edwards left the 
matter of the investigation with me, requesting me to do all I could, which I promised 
to do. I told him he might go home and rest perfectly easy; that he would get his cer¬ 
tificate. I told Tankersley that those were the names of men he was desired to appoint 
on the Mallory committee. I think I told him that Bowen sent them.” 

Battle, Democrat, says: “I voted for Clayton on his first election; after the election 
my friends told me they had pledged me to Clayton to vote for him before the election; 

I voted for Clayton to make Johnson governor.” 

White, secretary of state, says: “Had no evidence of the election in my office, except 
the returns; the returns in every view showed Boles had a majority; the governor pro¬ 
duced no papers on which he relied in issuing the certificate to Edwards; I issued it 
under his direction. The clerk in my office first informed me that Governor Clayton 
had decided to issue the certificate to Edwards; I asked him on what ground; if the gov¬ 
ernor had given any reason. He said none; and I told him to make a written memo¬ 
randum of the transaction, which was done. There were no affidavits or petition touching 
the election brought to my notice by Governor Clayton.” 


POWELL CLAYTON. 


469 


W. S. Olivir, witness for Clayton, says: “ Clayton advocated the election of Boles and 
the Republican ticket for the legislature in Pulaski County; Clayton advocated the elec¬ 
tion of Brooks and Hodges in that county in all his conversations with me.” (We will 
see directly what measures Clayton advocated to keep them from their seats when it was 
known they were opposed to his nomination for Senator.) 

Catterson says: ‘‘Isaac C. Mills was Democratic candidate for sheriff in Pulaski County 
in 1870; he was supported by Clayton’s political friends; was afterward appointed 
United States marshal lor the eastern district of Arkansas by President Grant, on Clay¬ 
ton’s recommendation. Harrington, now United States district attorney for Arkansas, 
supported and worked for Mills, and was generally understood to have supported Ed¬ 
wards in his contest for his certificate.” 

Having presented these facts to show the intention of Governor Clayton in issuing the 
certificate to Edwards, I will now give, very briefly, the action of the Mallory commit¬ 
tee, which was raised in the legislature to investigate the elections in Pulaski County, 
and framed, as Chamberlain’s evidence clearly shows, with a view to decide in favor of 
Edwards. - Being a joint committee, they appointed Senator Mallory chairman, and pre¬ 
tended to proceed with the investigation. 

Joseph Brooks was contesting for his seat as senator, and held a certificate of election 
from the county clerk. 

J. L. Hodges, Gantt, and Mitchell were contending for their seats, and held certifi¬ 
cates. Chamberlain, Goad, and Pilkington were also contending as opposing candidates. 
The latter were known as Clayton men. General Upham was appointed clerk of the 
committee. I should say that, by the returns, the Clayton men were defeated, so the 
investigation had a double purpose—to seat Edwards in Congress and to seat Chamber- 
lain, Goad, and Pilkington, who favored Clayton’s election. 

Chamberlain, Clayton’s witness, says: “The following-named witnesses, whose tes¬ 
timony appears in the report of the Mallory committee, were never examined by the 
committee, to wit: J. W. Raybun, Calvin Pemberton, Milo Arbuckle, JohnW. Mooney, 
Isham White, Harvey Harrison, and R. R. Carlisle. I took their affidavits myself. 1 
took some in the office of Mr. Fletcher, who was a Democrat. General Upham, secre¬ 
tary of the committee, who was a warm friend of Governor Clayton, told me he desired 
a quiet place to take the testimony of certain witnesses. He said many desired to tes¬ 
tify whose testimony he did not want, among them Joseph Brooks and J. L. Hodges. 
I got the key to the law-office of Faust & Ratcliffe at Upham’s request. The office was 
in a room in the rear of the building, approached by a dark passage in which there was 
no light. One member of the committee came that night, Mr. Cohn, I think, member 
of the house, devoted to Clayton, and who was afterward appointed clerk. The com¬ 
mittee had met before in Upham’s office, across the street from the State-house.” (The 
witness does not say whether any witnesses were examined.) 

Hodges says: “I endeavored to get before the Mallory committee to testify, but never 
could succeed. I was never notified of the time and place to take proof. I went one 
night by appointment of the committee, but there was no member of it present. Fail¬ 
ing in my efforts to get before the committee, I called upon General Upham, the secre¬ 
tary, and proposed that, as I could do no better, that he should take my testimony. 
After making my statement for some minutes, I discovered he was taking down what I 
had not said. I charged it upon him, but he would not allow me to make the correc¬ 
tions. The testimony reported by the Mallory committee as mine was not given by 
me.” 

Battle says: “Was a member of the joint investigating committee of which Mallory 
was chairman. The committee sat a few times, examined Chamberlain , Hartman , Web¬ 
ster, John Reigler, N. L. Pears, S . R. Harrington , Hagan Green, and Jas. V. Hitch. [It 
will be observed that the witnesses whose names are italicized were no doubt very swift. 
Fitch did the registration that they were investigating. Chamberlain, after advising 
with Clayton, Bowen, Bennett, and Edwards, got up the investigation at Edwards’s and 
Clayton’s request, and furnished the names of the committee to Tankersley, the speaker, 
and the committee called in those special friends of Clayton, whose names are italicized, 
to do the swearing.] The witness says Hodges was not examined before the committee. 

I did not know that the report of the committee was going to be made until it was an¬ 
nounced in the house. I did not unite in it, nor approve it. It was made by C. C. Wa¬ 
ters, in the house, who was afterward appointed judge of the criminal court in Phillips 
County. Waters was never present when the committee sat.” 

Joseph Brooks says: “In an interview held by Governor Clayton, Lieutenant-Gov¬ 
ernor Johnson, Judge Bowen, J. L. Hodges, and myself, just before Governor Clayton’s 
second election, that Governor Clayton then stated to him that the Mallory committee 
and its proceedings were projected simply for the purpose of a counter pressure to a fight, 
which he understood that we were putting up on him in Washington. ” Brooks told him 
“that he and Hodges had been wrongfully and outrageously and unlawfully kept out 


470 


SENATE ELECTION CASES. 


of their seats, through his influence chieftly, through the power of the star-chambei 
Mallory committee.” These statements are corroborated fully by the witness Hodges, 
and are not denied by Governor Clayton. To the account of this interview, as given by 
Brooks, who is a very intelligent man, I especially invite the attention of the Senate. 

As the fifth and sixth specifications of charges both relate to the means employed to 
remove Lieutenant-Governor Johnson from office, and thus remove the last obstacle to 
Clayton’s coming to the Senate, I will treat them both together. 

The proceeding by quo warranto has already been referred to. It was instituted for 
no other purpose than to fulfill the pledge which Clayton had given his friends repeat¬ 
edly, that he would not accept the Senatorship until he had made way with Johnson. 
When that proceeding failed, his friends holding him to the pledge, he resigned, under 
the first election. In the mean time much bitterness had been engendered and division 
taken place among his friends and opponents in the legislature growing out of—first, 
the indignation of some at his attempt to overthrow Johnson on so frivolous a pretext; 
secondly, the attempt made by his partisans to impeach Lieutenant-Governor Johnson; 
third, his resigning the Senatorship, and, fourth, his delay in carrying out the agreement 
with General Edwards. The impeachment of Johnson, which was another effort made 
to get rid of him, was based upon a ground as frivolous, if possible, as the ground upon 
which the quo warranto was instituted. The charge against Johnson was that he was 
guilty of 1 ‘ high misdemeanors and maladministration, ’ ’ because he swore in Joseph Brooks 
as a member of the senate on his certificate of election which he presented after having 
appealed in vain to Senator O. P. Snyder and Senator O. A. Hadley, zealous partisans of 
Clayton, to present his certificate to the senate. And just here I will break the thread 
of my views in order to show how this matter was manipulated by Governor Clayton. 
Brooks says: “ I held a certificate of election as senator; I asked both Snyder and Had¬ 
ley to present my certificate and they declined; I was kept out of the senate until after 
Clayton’s first election; was then sworn in on presenting my certificate; I moved the 
reference of my credentials to the committee on privileges and elections; the committee 
reported unanimously that I was entitled to my seat. Eight days after I was admitted 
I offered several bills; one was to make a disposition of the swamp lands, estimated at 
several millions of dollars. There were before the legislature what was called the levee 
bill, intended to appropriate the same lands for railroads. Just after I introduced the 
bill Senator Mallory moved a recess; it was taken, and at 2 o’clock p. m., when the sen¬ 
ate assembled, Senator Young, from the committee on privileges and elections, made 
another report to unseat me and to seat my opponent, Riley, a Democrat. No evidence 
had been taken by that committee. I had not received any notice of contest'by Riley. 
The previous question was at once ordered on the resolution to unseat me. I appealed 
for an opportunity to be heard. I wrote a note to Senator Sarber (a supporter of Clay¬ 
ton) to intervene for me. He said he would consult with Governor Clayton and let me 
know if I could be heard; he went and returned, saying he had seen Governor Clayton, 
who was in his office with Judges Bennett, Searle, and Bowen, or McClure (not certain 
as to which of the last two named), and that they were consulting on the subject; that 
the governor signified he would let him know in a few minutes; that he would go again 
and inquire of the governor if they might adjourn the question over till morning. 

“I heard nothing more from Sarber. I then sent a message to Clayton by Joseph 
Myers, who returned no answer. The question was not adjourned over, and I was 
ejected from the senate that evening.” 

The above is a mere abstract of a pitiful story told by a man of great intellect, remark¬ 
able intelligence, and quick conscience, who, on account of his opposition to Clayton’s 
election and disapproval of his conduct, was thus ruthlessly crushed without even a 
hearing. But to resume: 

These two efforts to depose Johnson having failed, another election being necessary, 
and his friends being resolved not to vote for Clayton until he got Johnson out of office, 
another plan was devised. Strategy now came into play. A conference was held. Brooks 
and Hodges were invited to meet Clayton, Bowen, and Johnson. They met, and the fol¬ 
lowing is Brooks’s account of the interview. ‘ ‘ Clayton stated that he was pledged not to 
resign and leave Johnson to become governor; that some arrangement must be made so 
that he could carry out his promise, in order that he might go to the Senate. The meet¬ 
ing was called to make an adjustment with Hodges and myself and our associates on the 
ticket in Pulaski and White Counties, and with Johnson. He repeated his often-expressed 
desire to be United States Senator; the earnest efforts he had put forth to secure it; that 
it was more than the dream of his life; that he was very ambitious; his heart was set 
upon it; that he was as ambitious as Caesar; that he would not only be United States 
Senator, but that, if he had the opportunity, he would sway the scepter of universal 
empire. I answered, he knew full well that we had been opposed to his election; that 
it was a new development in political tactics that the successful party (himself) had to be 
conciliated; that though he had secured his election by means we did not and could not 
approve, he should quietly take his seat and we should be permitted to take ours in the 


POWELL CLAYTON. 


471 


general assembly. Bowen seemed equally interested with Governor Clayton, and to 
represent Clayton’s views and feelings. One condition necessary to adjustment, they 
both said, was that they should expect and require that our friends in the house, not 
only those who were to be admitted, but other friends of ours who were then members 
of the house, should vote and act on the Hot Springs contest with the Clayton men. 
(This was a contest for seats in the legislature.) 

‘ ‘ One of them said that I would be expected to use my influence with those colored 
members with whom I was supposed to have some influence to have them vote against 
the contestants in the house. I said they were sworn representatives of the people, and 
under obligations of the most solemn character to vote and act in that and every such 
matter in conformity with the facts and evidence as they understood them when pre¬ 
sented; that if they found, in their unbiased judgment, that the contestants, agreeably 
to the testimony, were the members-elect, I could not, of course, counsel them to per¬ 
jure themselves; for myself I claimed to be lawfully elected; stated to the governor I 
thought he knew I was. If I was lawfully elected, then I claimed the seat without con¬ 
ditions and without pledges; that I believed myself to be a Republican, not only un¬ 
questioned, but unquestionable; that if admitted to my seat, on all political questions I 
would undoubtedly act and vote with Senator Clayton’s friends if they were Republicans; 
with respect to general legislation I did not regard myself under obligations to Governor 
Clayton or anybody else, except my constituents. Johnson expressed his wish for an 
adjustment so that Clayton might go to Washington and take his seat. Clayton and 
Bowen then suggested that Clayton might retire and let Johnson try his hand as gov¬ 
ernor. I answered that I thought Clayton’s friends were not the men to be consulted 
with respect to the State administration; that I felt a very great aversion to any such 
horse-swapping on the subject; that Johnson was as much lieutenant-governor as he was 
governor; that he had been elected, after the fashion he had been, United States Senator; 
I thought the law ought to take its course; that we required no conciliation except for 
Clayton to go on as Senator, let the constitution and laws of the State take their course, 
and for them to suspend what I designated their star-chamber performances through the 
Mallory committee; that Hodges and I and our associates on the ticket had been denied 
the right of a hearing there, and that there could be no harmony or restoration of friend¬ 
liness of feeling unless they either gave us a chance to be heard fully and fairly before 
that committee or the committee dissolved and their ex parte proceedings were cast into 
oblivion. Clayton replied that he thought, if other matters could be arranged, that 
there would be no difficulty with respect to that committee; that it was projected simply 
for the purpose of a counter-pressure to a fight which he understood we were putting up 
on him at Washington. I replied no fight had been put up on him, nor was any contem¬ 
plated; that we and our friends were entirely content that he take his seat unmolested; 
that while we believed we had been outrageously kept out of our seats, through his in¬ 
fluence chiefly, that was passed. Clayton expressed the opinion that if our delegation 
(from Pulaski County) had been admitted at the organization of the general assembly 
he would have failed of his election. Finally, late in the night, perhaps day-dawn, 
Bowen asked me if I would be satisfied with any adjustment made between Clayton and 
Johnson. I replied I had nothing to do with such an adjustment, and would make no 
trouble about it. We separated about the crack of day without any further adjustment 
than I have named. 

“I understood Governor Clayton’s remarks, that I have in part stated, to be to the 
effect that the Mallory committee was projected by himself, and its proceedings carried 
forward under his direction, with a view, as he stated it, to furnish counter-pressures 
against a supposed fight of ours against him in Washington.” 

The foregoing statement of Brooks is confirmed entirely by Hodges. This proposition 
made by Clayton and Bowen to influence votes to seat members without respect to their 
rights, and, in consideration of such influence to be exerted by Brooks and Hodges, gra¬ 
ciously to consent that Brooks and Hodges might take their seats, not being accepted, 
still another device was hit upon, and that was to secure his seat by the use of money. 
O. A. Hadley was then delegated to wait upon R. J. T. White, secretary of state, and 
after a few blandishments he made the direct proposition to pay him $5,000 in money and 
$25,000 worth of first-mortgage bonds of the Mississippi, Ouichita and Red River Rail¬ 
road Company to resign his office. It is hardly necessary to say that this masterly stroke 
was successful. This was just before Clayton’s second election. It had been previously 
arranged that Johnson, who was all along the stumbling-block, if White would vacate 
his office, would resign and accept it; O. A. Hadley would be elected president of the 
senate, become ex-officio governor; Clayton would be re-elected and accept the place of 
Senator. Hadley says that White’s resignation, Johnson’s resignation and appointment 
to White’s place, and Clayton’s nomination all occurred within less than an hour of each 
other. Why these events occurred in such rapid succession and so immediately before 
Clayton’s re-election we will better understand when we come to consider the last charge. 

Now as to a few facts bearing upon the purchase of White. I will let Mr. White 


472 


SENATE ELECTION CASES. 


tell bis own story, premising by saying that it is not only uncontradicted by any witness, 
but not even referred to by Clayton when on the stand. Referring the Senate to his 
testimony for the whole story, I content myself with mentioning the material facts: 
“O. A. Hadley called to see me. He said it was understood and agreed if I would re¬ 
sign I should not suffer pecuniarily, and that parties with whom he had conferred had 
agreed to see me out, if I suffered pecuniarily, and he mentioned the sums which they 
supposed I would be a sufferer. He named a sum, $5,000 and $25,000 in $1,000 first- 
mortgage bonds of the Ouachita and Red River Railroad Company; we separated there. 
I called on Johnson to know if the thing as represented was true. He said so, and it 
seemed to turn out that way afterward. I do not think I saw Hadley any more on the 
subject. I never called on Governor Clayton. He once passed me and asked me whether 
Senator Hadley had spoken to me on the subject, and I told him he had. We parted, 
and there was nothing more said. I resigned my office soon after. I met Governor Clay¬ 
ton in New York a short time after that, and spoke to him on the subject; the matter 
was lightly touched, a mere passing remark; and some time afterward I received a letter 
from him, inclosing a certificate of deposit on a bank in New York for $5,000, and 
twenty-five $1,000 first-mortgage bonds of the Mississippi, Ouachita, and Red River Rail¬ 
road. The letter was signed by Governor Clayton, and contained nothing but, ‘I in¬ 
close you’ thus and so.” When asked if he understood what they meant, he says, “I 
did; the papers showed for themselves what they meant.” The witness attempts to 
show that other matters entered into the consideration for accepting this money and these 
bonds, but it is a most ‘ ‘ lame and impotent conclusion. ’ ’ He admits that when Hadley 
called on him the subject of conversation was about his losses by resigning his office, 
and says that his salary and fees of office given up by him under this agreement were 
worth from $6,000 to $7,000 per annum. The value of the bonds received by White may 
be estimated by the statement of the witness McLane, who says that he sold the same 
number of railroad bonds ($25,000) at 32 \ cents on the dollar. White’s pay for resigning 
his office, at this estimate, would be over $13,000. By buying off White, and appointing 
Johnson to his office, an obstacle otherwise insurmountable in Clayton’s path to the 
Senate was removed. To appreciate the value of this success, we have only to bear in 
mind that witness after witness who voted for him testifies that unless he had removed 
Johnson he could not have been elected. His own party friends would not have sup¬ 
ported him, because they were resolved to do no act that would result in making John¬ 
son governor. So, by removing Johnson, by paying White to resign and appointing 
Johnson to his place, he virtually bought the votes of his own friends. 

The seventh and last charge is that Governor Clayton purchased his election by ap¬ 
pointments to office of many of the members of the legislature, and by paying them 
money. It is answered to this charge, so far as relates to the appointments to office, 
first, that no such agreement was made, and, secondly, that the appointments, which 
are not denied, were made by Governor Hadley, who succeeded Clayton. Before stating 
the facts, I will remark that Clayton was elected on the 15th of March and Hadley was 
installed as governor on the 17th of March. This will explain why most of the appoint¬ 
ments were made by Hadley. Clayton was certainly too shrewd to ‘ ‘ pay the piper before 
the dance was over.” Hence he made but few appointments before the votes were de¬ 
livered. Besides, some of these appointments were made to offices created during that 
session of the legislature, and some of them by acts passed after Clayton’s election, 
though they and the persons to fill them had been agreed upon in caucuses of the Clay¬ 
ton men before his election. From the split which occurred among his friends in the 
legislature, from the causes which I have already mentioned, and the decided opposition 
of the “ Brindle-tails,” or Brooks faction, and most of the Democrats, his second election 
was very doubtful. This is shown by the herculean efforts which he and his friends put 
forth for some time before the second election. Frequent caucuses were held, conferences 
at night were numerous, and continued up to a late hour the night before the election. 
The doubtful issue of the contest is further shown by the vote on the second election. 


In the house, first election (house journal, page 74): 

Votes cast_78 

Of which Clayton received_71 

Necessary to a choice_40 

Majority- 31 

In the house, second election (house journal, page 715): 

Votes cast_ 78 

Clayton received_ 42 

Hecessary to a choice_ 40 

Majoi vty_ 2 










POWELL CLAYTON. 


473 


In the senate, first election (senate journal, page 44): 

Votes cast________’ .....25 

Clayton received_23 

Necessary to a choice_~__13 

Majority__ 10 

In the senate, second election (senate journal, page 272): 

Votes cast_23 

Clayton received______ 15 

Necessary to a choice_"HU"”?!”!"””"” 12 

Majority__ 3 


Thus it appears that his first majority (41) was reduced on the second election to 5. 

Let us inquire now whether there were more than 5 members of that general assembly 
voting at that last election who received lucrative appointments from Governor Clayton, 
or from Governor Hadley by agreement with Clayton. We will first take Hadley’s own 
testimony on this point. He says: 

“I appointed the following-named members of the legislature to office: 

“S. W. Mallory, senator, commissioner of claims and director of the Mississippi and 
Ouachita Railroad Company. 

“John W. Sarber, senator, trustee of the industrial university. 

“ P. H. Young, senator, to same position. 

“Conway Barbour, representative, assessor of Chicot County. 

“E. H. Chamberlain, representative, a justice of the peace. 

“ M. A. Cohn, representative, superintendent of public instruction. 

“I. P. Grady, representative, sheriff Crawford County. 

“George Haddock, representative, assessor of Clark County. 

“W. C. Hazeldine, representative, circuit judge. 

“G. H. Joslyn, representative, county and probate judge of Lincoln County. 

“Herbert Marr, representative, circuit school superintendent. 

“Thoms Orr, representative, assessor of La Fayette County. 

“ J. A. Robinson, representative, assessor of Desha County. 

“C. C. Waters, representative, circuit judge. 

“ E. R. Wiley, representative, justice of the peace. 

“ C. W. Tankersley, representative, superintendent of penitentiary. 

“A. Hemmingway,senator, was appointed commissioner to locate county site for Lin¬ 
coln County. 

“G. W. Prigmore, representative, circuit court clerk of Jefferson County, March 17, 
1871, the day Hadley was installed. Hadley says he does not remember whether he or 
Clayton appointed him.” 

I will next take the testimony of E. A. Fulton: 

“ D. P. Belden, senator, was appointed justice of the peace in Hot Springs County. 

“E. D. Rushing, senator, appointed justice of the peace. 

“A. O. Espey, representative, appointed justice of the peace. 

“Carl Pope, representative, appointed justice of the peace. 

“T. G. T. Steele, representative, circuit court judge. 

“J. M. Alexander, representative, justice of the peace. 

“James V. Fitch, representative, circuit clerk of Pulaski County and clerk and re¬ 
corder of criminal court of same county.” 

These offices (Fitch’s) are regarded as the best paying in that county, and are worth 
about $10,000 per year. This criminal court was created by the same legislature that 
elected Clayton. The act creating the office of superintendent of the penitentiary, to 
which Tankersley was appointed, was also passed at the same legislature. 

We have here the names of nineteen representatives and six senators—twenty-five 
members of that legislature in all—who were appointed to lucrative offices, and all of 
whom are recorded in the journals of the house and senate as voting for Senator Clayton 
in his second election. Of the fifty-seven men who elected him, nearly one-half were 
appointed to office. The very pregnant question arises just here, How did this come 
about? Was it by design or by accident? Hadley appointed most of them, but why? 
What interest had he in rewarding men from whom he had received no favors, so far as 
the testimony shows? But we are not left entirely to conjecture in solving this question. 
There is much positive testimony which shows that many of these votes were obtained 
by contract. Hadley admits that he appointed some of them at the suggestion of Clay¬ 
ton. Some of these appointments were arranged in caucus before Clayton’s election. 










474 


SENATE ELECTION CASES. 


And just here I will remark that while Clayton says he never attended a single caucus 
during the session of the legislature, his own witness, W. S. Oliver, says that Clayton 
was generally present at all the caucuses. He attended them himself and saw Clayton 
there. Chamberlain, also his witness, says he attended a caucus of Republicans when 
Clayton and Bowen were present. The levee bills, the penitentiary bill, and certain 
railroad bills were agreed upon in caucus; so was Clayton’s nomination. 

Scales, a Democrat who voted for Clayton on the second election, says that in an in¬ 
terview he had with Governor Clayton before his election, and in talking on that sub¬ 
ject, Clayton told him if he would name good men to fill the office of magistrate in his 
county he would appoint them. Hadley was present and said he would agree to what¬ 
ever Clayton said he would do. That was in the event Hadley became governor. This 
was after Johnson was appointed secretary of state, and before the election of Clayton. 
Had a conversation on the same day with Isaac C. Mills, who was supporting Clayton. I 
think I told him I bad assurances from Clayton and Hadley that these appointments would 
be made; told him I would support Clayton, and told Mills of my conversation with 
Clayton. I voted for Clayton, and considered when I voted for him that these vacant 
offices in my county would be filled. I gave the names of some seven or eight Demo¬ 
crats and Republicans to Hadley and he appointed them. Clayton appointed some 
before he resigned. Hadley did not appoint some I recommended, and that is the only 
complaint I made against him. Neal, a Democratic member of the house, voted for the 
articles of impeachment against Clayton. When the resolution was passed, fourteen 
senators, as before stated, to break the quorum of the senate, and thus to prevent action 
on the articles of impeachment, “took to the brush ” (using the language of the witness) 
and were gone a week, remaining during that time at the dwellings of W. S. Oliver and 
Judge Bowen, and visited while there by Clayton. Meanwhile Neal had evidently been 
manipulated, for the committee managing the impeachment in the house was changed 
and Neal appointed by Tankersley, the speaker of the house, chairman of that comrnit- 
* tee. The committee on the second or third day after Neal was appointed, without taking 
any evidence to support the articles of impeachment, except to examine some records in 
Clayton’s office, reported back to the house that they could find no evidence on which 
to sustain the charges. Neal had two measures of much importance to him pending 
before the legislature. He wanted two courts established and desired Clayton’s influence 
to pass the bill. The bill was afterward passed. Neal did not vote for Clayton, and 
gives the reason why he did not vote at all, that the election came off at 11 o’clock in¬ 
stead of 12 o’clock in the day. The house journal shows, page 715, that the election 
was held in accordance with the provisions of the act of Congress, which designates 12 
meridian as the hour. 

McLane swears that he was in the house when the election was going on, and that he 
saw Neal during the roll-call get up and leave the chamber. Neal was also interested in 
a railroad for which he wanted State aid, which could only be granted by the board of 
commissioners, of which Clayton was one of three members. 

The negro (White) senator was also a competitor of Clayton’s in the election, and was 
instructed by his constituents to vote for himself. He did so, but before the announce¬ 
ment of the result of the ballot, he rose and said, ‘ 1 1 change my vote to Powell Clay¬ 
ton.” 

McConnell says that Clayton and Bowen called at his room at a late hour the night 
before the election and stated that they had just seen White (this senator) and another 
member of the legislature named Mason, and had fixed the matter with them, but that 
they were very expensive. 

McLane swears that White told him he was visited after 12 o’clock the night before 
the last election of Clayton by Clayton and Hadley; that they staid with him an hour 
or two and fixed the matter up. 

Fulton swears that White boasted that he got $25,000 worth of stock in a railroad while 
he was senator. 

Another witness testifies that White was charged at a public meeting where he was 
present with having received $25,000 in bonds for his vote, and did not make any denial. 

McConnell testifies that Clayton told him to say to Steele (senator), who was consid¬ 
ered doubtful, that he (Clayton) would appoint him judge of the circuit court if he 
would vote for Clayton for Senator. Steele voted for Clayton and was appointed judge 
of that court, vice Searle, resigned. 

Chamberlain (projector, with Clayton and Edwards, of the “star-chamber commit¬ 
tee,” and Clayton’s witness) says: “Clayton asked me to vote for him on his second 
election; said if I would he would make out for me a commission as justice of the 
peace right then. I voted for Clayton, and got my commission afterward from Hadley. ” 
He states, however, that he did not vote in consideration of the commission. Per contra 
let it be remembered that between the first and second Senatorial elections Chamberlain 
had broken out the traces. The impeachment of Johnson to depose him, and thus ful- 


POWELL CLAYTON. 


475 


fill Clayton’s pledge, no man can doubt, was Clayton’s own work. Here Chamberlain 
broke. He opposed that assault and voted against it. Hence the necessity for his re¬ 
capture. McConnell says that Chamberlain told him Clayton had not treated him right, 
and if Clayton expected his support he must pay for it. 

McConnell says Clayton told him just before his second election that Johnson was 
going to be impeached, and he felt sure of success, and asked witness to assist. Witness 
saw J. P. Grady, representative, and reported to Clayton that he thought Grady was 

bullheaded, ” meaning stubborn. Clayton said, “ Tell Grady he can have the sheriff’s 
office, or anything reasonable”; that he must have his vote. Mr. Grady voted against 
the previous question when it was ordered on the motion to impeach Johnson (house 
journal, 231). But he afterward voted for Clayton at his second election, and received 
the appointment of sheriff. The same witness says that Clayton told him, in the presence 
of Mills, district attorney, that Scales’s (Democrat) vote could be got by giving him the 
patronage of his county. 

To show that these appointments were all agreed upon before the Senatorial election, 
I will state that McLane testifies he was informed before the election by Tankersley that 
he (Tankersley) would be appointed superintendent of the penitentiary; by Sarber, that 
Mallory would be appointed commissioner, and that Neal would get his railroad aid and 
county bills, and that Waters would be appointed judge of the criminal court. 

Thus it will be seen that five members of the legislature, to wit, Scales, a Democrat; 
Chamberlain, a Conservative, who ran on the ticket in Pulaski County, which was sup¬ 
ported by the Democrats; Steele, who was considered doubtful as to his vote; Grady, who 
had refused to vote for Clayton’s measure impeaching Johnson, and White, a rival can¬ 
didate for the United States Senate, are shown by direct testimony to have given their 
votes for Clayton as Senator at the election under which he now holds his seat, under 
promise of a valuable consideration, which they afterward received, while the opposition 
of Neal, a Democrat, was overcome by some magic influence, supposed to be a grant of 
State aid to his road by Governor Clayton. Clayton’s majority on that election was five; 
the men whose names are given above, excluding Neal, were five in number, and all 
voted for Clayton. 

There is another very important fact, to which I now call attention. It is that even 
the majority he received would have been overcome had the delegation from the Hot 
Springs district and Pulaski and White Counties been allowed to take their seats. They 
were undoubtedly excluded by the iron hand of Clayton, and to prevent their opposition 
to his election. He had but one purpose, as shown by the evidence, to accomplish 
through the aid of that body, and that was to come to the Senate. Everything was 
subsidized and subordinated to that end. 

McConnell says that Clayton told him, when he took Haymaker to see Clayton about 
his (H.’s) levee bill, that there were four levee bills before the legislature; that they 
were good to use for political purposes; that he would keep out of the fight for a while, 
and then favor the bill best suited for political purposes. 

Various witnesses testify that many of Clayton’s friends and supporters, in the legis¬ 
lature and outside of it, were interested in these bills and several railroad bills. Neal 
was interested in a railroad; so was Sarber; so was Judge Bowen. Judge Bennett was 
interested to the extent of a fee of $70,000. And all these were looking to the governor 
for State aid and his influence. 

By the returns in the secretary’s office the delegation from Pulaski and White, opposed 
to Clayton, were elected. But White, the secretaiy, sent in the roll of members-elect 
with the names of Clayton’s supporters from those two counties upon it. Among those 
opposed to him and left off the roll were Hodges and Brooks. We have seen that Brooks 
told Clayton in that remarkable interview that he knew that Brooks and Hodges were 
opposed to his election, and that he told him further he knew the delegation from Hot 
Springs district, three in number, were also opposed to him, and that he (Clayton) had 
originated the Mallory or star-chamber committee, for the express purpose of keeping 
these opposition candidates out of the legislature; that Clayton did not deny the charge 
that he raised the committee, but simply stated it was raised to countervail their oppo¬ 
sition to his getting his seat at Washington. We further know the proposition that 
Clayton then made, that he would consent to admit those two delegations in order to 
remove all obstacles to his election. That he prevented their being seated to secure his 
election is shown by the following facts: The Hot Springs delegation, after being kept 
out of their seat through the report of the Mallory committee from the 2d day of Jan¬ 
uary until after Clayton’s election on the 15th of March, were finally received into the 
house. Brooks, of the Pulaski delegation, the most powerful opponent, intellectually 
and morally, that Clayton had, was kept out until after the first election, was after the 
election declared by the committee unanimously to be entitled to his seat, was, without 
notice or hearing before the second election, on the report of the-committee on privileges 
and elections, ejected from the senate, and Riley, his Democratic opponent, seated, while 


476 


SENATE ELECTION CASES. 


Hodges and the other candidates for the house from the Pulaski disrtict were never per¬ 
mitted to take their seats. The complexion of the delegation from Pulaski and White, 
who were seated, is somewhat motley, not to say significant. They were C. A. Whitte- 
more, a Democrat; Robert A. Howard, Democrat; E. H. Chamberlain, Democrat or Con¬ 
servative; J. W. House, Democrat; and Pilkington and Goad, Republicans. The seats 
of Goad and Pilkington were contested by Gantt and Mitchell, Democrats, who, it will 
be remembered, withdrew to insure the certificate of election to Edwards. Goad and 
Pilkington voted for Clayton. 

There are many other facts which illustrate this contest for power and place, but 
having already extended this review farther than I expected, I will refer to but few 
more. 

At the organization of the legislature an armed force took possession of the State- 
house, and no one was allowed to enter the house or senate except those who held cer¬ 
tificates of election. Tankersley entered, as several witnesses say, almost on a run, and 
took his seat in the speaker’s chair before he was nominated. The two houses were 
organized on the roll furnished by the secretary of state, who, it will be remembered, 
excluded from the list of members-elect some who, by the returns in his office, had a 
majority, but who were opposed to Clayton’s election. When the articles of impeach¬ 
ment were about to be presented against Clayton, or had been preferred, his attached 
friends, members of the legislature, and some outside, formed a military company for 
the purpose of offering resistance. Clayton ordered arms from the arsenal at Little 
Rock sufficient to arm from one hundred to one hundred and fifty men, and these arms were 
placed in the executive office ready for use. Even his own witnesses testify that John¬ 
son, who was then considered the head of the opposition, was a very peaceable man, and 
that they saw no demonstrations of force on the part of either Johnson or any of his 
friends. One witness, Brooks, says that this armed power had a very discouraging influ¬ 
ence on the members who had been appointed to conduct the impeachment. Clayton 
and his friends, as a pretext for this, threatened bloodshed, saying that they feared John¬ 
son and his friends would endeavor to depose the governor from office in advance of a 
compliance with the laws of the State, but no witness testifies to any act which showed 
such an intention. 

However much we may differ on the demurrer to these facts, on a calm survey of this 
whole testimony there is one conclusion as to which, I think, all men will agree. It is 
that Senator Clayton is responsible for all the acts of that legislature, through its com¬ 
mittees and otherwise, which were done to promote his election. He was the doer of 
many of them, and all the others were done by those who either stood in the most inti¬ 
mate personal relations to him, and were in almost daily conference with him, or others 
who were bending every energy to accomplish his one purpose. Bowen was the omni¬ 
present and ever present, his mentor and monitor, his man Friday, his very shadow. 
Hadley was his creature, was made governor by him, and obeyed his mandates to the 
letter, as shown by the appointments Hadley made. Storey said that when he applied 
to have the public printing restored to him Hadley answered that he could not do so 
until he consulted Senator Clayton, then in Washington. 

Judge Bennett, appointed by Clayton circuit judge a month after his admission to the 
bar for his zeal and labor in this contest, was promoted during that legislature to the 
supreme bench by the same benefactor. He of course was subservient. Judge Mc¬ 
Clure, the recipient of a like favor, was alike devoted. Judge Searle, who withdrew in 
the Congressional race, received like honors. Tankersley, whom one witness calls Clay¬ 
ton’s candidate for speaker, devoted to the end, was rewarded by being assigned through 
mistake to a place over the penitentiary. And so with many others: Who can doubt 
that their acts and sayings were Clayton’s own so far as they related to his election ? 
Who can doubt, not only from these circumstances, but from the positive evidence in this 
case, that the five votes of Scales, Chamberlain, White, Grady, and Steele were procured 
directly by Governor Clayton for a valuable consideration? Who can doubt that he is 
directly responsible for the exclusion of those members, ten in number, whose votes 
were pledged against him, and who, if admitted, would have defeated his election? 

Is not the conclusion irresistible that the appointment of those members of the legisla¬ 
ture to office by Hadley was the act of Clayton himself ? And, going one step further, who 
does not believe, considering the history of this transaction and the extraordinary fact thal 
nearly one-half of the members who voted for Clayton were, during the session of thal 
legislature and soon after his election, appointed, some to the most honorable and some 
to the most lucrative offices within the executive patronage, that these appointments 
were the price of their votes ? 

Recurring now to the transaction with R. J. T. White, is there any room left for doubt 
that White sold out and that Clayton bought him ? Hadley made the arrangement, 
Clayton recognized it by a simple word or wink from White, and then Clayton paid the 
price in the very amount of money and of bonds, and the very class of bonds (first- 


POWELL CLAYTON 


477 


mortgage Ouachita and Red River Railroad), which Hadley told White would be paid. 
And Clayton by the use of this money secured the votes of his own party friends, three 
or four of whom on this investigation have sworn they would not have voted for him 
unless he had removed Johnson. Johnson was removed by removing White. If this 
be true, then it is clear that Clayton obtained his election solely through the power of 
money. If he had removed Johnson by the quo warranto on the judgment of a compe¬ 
tent court there would have been nothing corrupt in it, or if the impeachment had 
resulted in deposing him after a fair trial it might have been considered very sharp but 
not corrupt practice. But when these failed, and he had no other means left by which 
to obtain a seat in the United States Senate, except the power and iufluence of gold, used 
and applied as it was, I cannot regard that means as other than corrupt. The circum¬ 
stances of the bargain show that he and White were of the same opinion. Clayton’s 
emissary Approached White at a late hour of night after White had gone to bed— 
made the proposition. The interview was ‘ ‘ short, sharp, and decisive. ’ ’ White said he 
would consider. When he and Clayton met on the street Clayton referred to the subject 
and passed on. When they met in New York after the election White renewed the sub¬ 
ject with a single remark; Clayton signified his obligation, and when Clayton inclosed 
the money and bonds, instead of sending his own draft (which would have an ear-mark) 
he sent a certificate, reading that Jackson E. Sickles had deposited to White’s credit in a 
New York bank $5,000. 

Taking a retrospective glance over the field of this contest, brought on by ambition, 
made fierce by party strife, and ending in shame, what a sad spectacle do we behold ! 
Clayton’s plan of battle was laid while his enemies slept, and long before the day of 
action. Through executive power he commanded the situation, held it, and won, but 
with irreparable loss. We see executive power cruelly brought to bear on Storey, party 
ties subrogated, friend and foe falling without discrimination. We see legislators obey¬ 
ing his beck, and crushing Brooks and others at his nod. We see the representatives of 
the people seated and unseated at his pleasure. And all these to put him in the Senate! 
We see registrars appointed and protected by him when charged with fraud. We see 
overtures to his enemies to join hands and wage war on his friends. We see friends and 
foes, Democrats and Republicans, following his banner, each confident he was their leader, 
and each, like the irate knights, seeing a different color on either side the shield. We 
see an inoffensive citizen, honored by his people with the next highest State office in 
their gift (and given simultaneously with the highest, which they conferred on Clayton), 
assailed without cause, by quo warranto , to gratify ambition. We see a plain law—so 
plain that he who runs may read—violated, and a certificate of election issued, under a 
bargain made for his own promotion, to one not entitled to it. We afterward see this 
Democratic favorite ejected from his seat in Congress, obtained on that certificate, and 
his opponent, a Republican, seated by a rebuking majority vote. To furnish an apology 
for this act we see him raise a packed committee to investigate alleged frauds, and ‘ ‘ to 
report in favor of Edwards.” We see the certificate of election withheld for more than 
two months after it should have been issued, and more than one month after the report 
of that committee. This ambition still foiled, we see it turn again on Johnson with 
ferocity increased by disappointment, and attack not only Johnson’s position but his 
honor. Here we see the mercenaries of this leader of two opposing parties discover the 
reverse side of his banner and desert. A few of their opponents desert and join them and 
turn upon their former leader. To escape defeat he withdraws his adherents to the head¬ 
quarters of his first-lieutenant, Bowen, where they are quartered for six days. Strategy 
meantime is active. One of the opposing leaders, Neal, is captured—joins the enemy— 
carries a few followers, and the combined forces return, and Neal reports against im¬ 
peachment. Still ambition is not sated. Still foiled by its foe, Johnson, it curbs pas¬ 
sion, abandons the open field, and, encouraged by its success with Neal, again resorts to 
strategy. An armistice ensues, and Johnson is invited to a counsel. We there see this 
ambition tender gold to White and office to Johnson, and its hitherto unconquerable foe 
surrenders. Though the opposing chief surrendered, his followers did not, and victory 
was not assured. The stragglers, who had sworn they would not advance under Clayton 
against the opposing forces until their commander, Johnson, had been either killed or 
captured, hearing of his capture, returned to the ranks. This ambition, still fearing a 
field engagement, tried again the skill of strategy. Gold and promotion to office were 
tendered to a few of the enemy; they grounded their arms, joined Clayton, and, thus re¬ 
enforced, he conquered. 

Is it not clear, on a full review of all these facts, that money, or its equivalent, alone 
gave Clayton his majority of five? Taking the buying of White, by which Johnson was 
overcome; the votes of the Republicans opposed to his election if Johnson remained 
lieutenant-governor (three or four of whom testify here that they would not have voted 
for him except on that condition, and who further swear they did vote for him), and 
counting those with whom he bargained to give them lucrative offices for their votes, it 


478 


SENATE ELECTION CASES. 


is demonstrable by figures that he got more than five votes (his majority) by these two 
means. 

The only remaining question, granting the facts, is, what is the law ? On this head I 
shall be brief. I consider it unnecessary to cite precedents or quote authorities; for the 
single question is, was using money and lucrative offices in that way fraudulent and cor¬ 
rupt ? If so, they make the election void, and the Senate may declare the seat vacant. 
If, in the judgment of the Senate, such conduct was not corrupt and fraudulent, there is 
no case made out. This I understand to be the generally accepted rule of law in such 
cases. 

I know there are some who go to the extreme of holding that the Senate has no jurisdic¬ 
tion over a Senator for any offense he may have committed prior to the moment of his 
election, even though the act was bribery in securing his election. And it is founded on 
the doctrine of State rights. To my mind this rule is not only unsound but repugnant 
to State rights. For I can conceive of few higher rights the people of a State, who are 
the sovereign power of that State, have than to be represented by a Senator who is chosen 
in conformity to law. The legislature are but the agents of the people. They cannot 
exceed their delegated power. A part of their delegated power is to elect Senators for 
their principal, the people—the sovereign. An inseparable incident of that power thus 
delegated is that it shall be exercised fairly and honestly. The law will never imply 
that even a private agent is authorized to act fraudulently in transacting the business of 
his principal. His agency ceases the instant he commits the fraud, and he makes him¬ 
self individually responsible for the act. He not only cannot act fraudulently, and bind 
thereby his principal, but he cannot bind his principal by a lawful act done extra the 
scope of his agency. This being true of a private agent, the rule is even more rigid as to 
public agents, for reasons I need not stop to enumerate. A legislature is a public agent. 
And while a court cannot inquire whether a statute was passed by a bribed majority, 
the people—the principal—to be bound by the statute may. For instance, if a charter 
for a private corporation should be obtained by a bribed majority, the people, through 
their legislature, may annul the contract by repealing the charter. 

To apply this rule to the election of a Senator. He represents the State. He is in no 
sense the representative of the legislature. He is elected by the legislature as an agent 
delegated for that purpose. The agent must act strictly within the limits of his delegated 
power. Fraud lies outside of that power. And when a candidate bribes a sufficient 
number of the electors to secure his election, he and they knowingly commit a fraud on 
the people, and by every rule of law any act done through combination of an agent with 
a third party to defraud the principal is void. And the man thus elected (to use a sole¬ 
cism) was never elected. The election is void and the seat vacant. And when the fact 
is judicially ascertained by the Senate, it is only necessary to declare by resolution the 
seat vacant. I say further, that in such case it is the imperative duty of the Senate so 
to do, and for the reason that no other power can. The legislature of the State cannot. 
The people in sovereign character cannot. For the Senate alone, under the Constitution, 
can judge of the election and qualifications of its members. If the election is void, there 
has been no election and the State is pro tanto unrepresented in the Senate. She is en¬ 
titled to two members in this body, and it would be the duty of the Senate to say one 
seat was vacant, that the State might fill it. Here, in my opinion, the power of the 
Senate to judge of the election of its members necessarily includes the right to go behind 
the moment and form of an election in order that it may determine whether that elec¬ 
tion was procured by bribery. 

Again, the Senate is expressly clothed with power by the Constitution to judge of the 
elections, returns, and qualifications of its members. The ‘ ‘ qualifications ” of a Senator 
are prescribed in the Constitution. The ‘ ‘ returns ’ ’ spoken of are the formal evidence of 
his election. But the power to judge is not confined to ‘ ‘ qualifications ’ ’ and ‘ 1 returns. ’ ’ 
It extends to the election itself, and in terms is unlimited. Is it without limit, or, in 
other words, may an election be declared void for any cause for which a majority of the 
Senate in their discretion may see fit to avoid it? Certainly not. It is not a question 
of discretion, but of parliamentary and constitutional law. A cause which, according to 
parliamentary law, consistent with the Constitution, avoids an election, is a sufficient 
cause. But according to parliamentary law, both in England and the United States, an 
election may be avoided for bribery. The provision in the Constitution is a transcript 
of the parliamentary law of the English House of Commons, as it existed when, and 
long before, the Constitution was adopted. And it is to be observed that the same clause 
that makes the Senate the judge of the election of a Senator makes the House the judge 
of the elections of its members. The clause is as follows: 

“Sec. Y, Aet. —. Each House shall be the judge of the elections, returns, and quali¬ 
fications of its own members.” 

The power of the two Houses is, therefore, the same, and no one has ever doubted that 
the election of a Representative may be set aside for bribery. 


POWELL CLAYTON. 


479 


I see no reason for a distinction between the electors who choose a member of the 
House and those who choose a Senator. The members of a legislature, in choosing a 
Senator, act as a body of electors, just as the people act as a body of electors in choosing 
a Representative. Either class may be bribed, and the reasons for holding that bribery 
avoids the election in the one case apply with equal force to the other. 

And hence I say that this right, so far from infringing on State rights, is necessary 
to their protection. In the case supposed, the State would be defrauded by the election 
ot a corrupt man to the Senate without the power to vacate his seat. For with two 
members of the Senate admitted as her representatives, and one in a seat obtained by 
bribing her agent, she could not elect a third to take his place without action by the 
Senate declaring his seat vacant. 

My conclusion on the specifications, which, as before stated, I resolved into three dis¬ 
tinct charges, is: 

First, that while the evidence satisfies me that a combination did exist between Clay¬ 
ton and Edwards, by which, for the support of Democrats, Clayton agreed to issue the 
certificate to Edwards, and did accordingly so issue it; yet, that not having obtained his 
seat by the election held on the 11th of January, at which he received these Democratic 
votes, the act is one not cognizable by the Senate; 

Second, that the charge made of procuring his seat by the corrupt use of money in 
the transaction with White is sustained by the evidence; 

And third, that he obtained 5 other votes, which make his majority, and were neces¬ 
sary to his election, by giving to those electors as a consideration for their votes lucrative 
offices; and that this was as corrupt as if for the same purpose he had paid them money 
in kind. 


[Special session of Senate, March, 1873.] 

Tuesday, March 11, 1873. 

Mr. Wright submitted the following resolution for consideration: 

‘ ‘ Resolved , That the charges made and referred to the select committee for investiga¬ 
tion affecting the official character and conduct of the Hon. Powell Clayton are not 
sustained, and that the committee be discharged from their further consideration.” 

Monday, March 24, 1873. 

On motion by Mr. Wright that the Senate proceed to the consideration of the resolu¬ 
tion submitted by him on the 11th instant, declaring that the charges against the Hon. 
Powell Clayton are not sustained, 

After debate, it was determined in the affirmative—yeas 36, nays 14. 

On motion by Mr. Bayard, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Alcorn, Allison, Ames, Bogy, Boreman, 
Boutwell, Buckingham, Chandler, Cragin, Dorsey, Ferry of Connecticut, Ferry of Mich¬ 
igan, Frelinghuysen, Goldthwaite, Hitchcock, Howe, Ingalls, Lewis, Logan, Mitchell, 
Morrill of Maine, Morrill of Vermont, Morton, Oglesby, Patterson, Pratt, Ramsey, Rob¬ 
ertson, Sargent, Scott, Sherman, Spencer, Stewart, West, Windom, and Wright. 

Those who voted in the negative are Messrs. Bayard, Casserly, Davis, Fenton, Gordon, 
Hamilton of Texas, Kelly, McCreery, Merrimon, Norwood, Saulsbury, Stevenson, Stock- 
ton, and Thurman. 

So the motion was agreed to. 

Whereupon, the Senate proceeded to consider the resolution; and 

The resolution having been modified by Mr. Wright, with the consent of the Senate, 
to read as follows: 

“ Resolved , That the charges made and referred to a select committee of the Senate at 
the last Congress for investigation affecting the official character and conduct of the Hon. 
Powell Clayton are not sustained,” 

Pending debate, 

On motion by Mr. Wright, the Senate proceeded to the consideration of executive 
business. 

[The debate is found on pages 165-173 of the Congressional Record, special session of 
the Senate, 43d Cong.] 

Tuesday, March 25, 1873. 

The Senate resumed the consideration of the resolution submitted by Mr. Wright on 
the 11th instant, viz: 

“ Resolved , That the charges made and referred to a select committee of the Senate at 
the last Congress for investigation affecting the official character and conduct of the 
Hon. Powell Clayton are not sustained; ” 

And, on the question to agree thereto, 

After debate, it was determined in the affirmative—yeas 33, nays 6. 


480 


SENATE ELECTION CASES. 


On motion by Mr. Davis, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Alcorn, Allison, Ames, Anthony, Bore- 
man, Boutwell, Chandler, Conover, Cragin, Dorsey, Ferry of Connecticut, Ferry of Mich¬ 
igan, Frelinghuysen, Hitchcock, Howe, Ingalls, Jones, Lewis, Logan, Mitchell, Morrill 
of Maine, Morton, Patterson, Pratt. Ramsey', Robertson, Sargent, Scott, Sherman, Stew¬ 
art, West, Windom, and Wright. 

Those who voted in the negative are Messrs. Cooper, Davis, Goldthwaite, Gordon, 
Merrimon, and Norwood. 

So the resolution was agreed to. 

[The debate is found on pages 184-192 of the Congressional Record, special session of 
the Senate, 43d Cong.] 




THE LOUISIANA CASES, 1873-80. 


481 


[Third session Forty-second Congress to third session Forty-sixth Congress.] 

RAY VS. McMILLEN; McMILLEN vs. PINCH BACK (MARK and 
EUSTIS) 5 and SPOFEOBJ) vs. KELLOGG (MANNING). 

of Louisiana. 


William P. Kellogg, whose term expired March 3,1873, resigned January 13,1878. January 22,1873, 
credentials of John Ray and William L. McMillen, each claiming to have been elected to till the 
unexpired term, were presented, and referred to the Committee on Privileges and Elections. Mr. 
Ray’s credentials were signed by William P. Kellogg as governor, and Mr. McMillen’s by John 
McEnery as governor. January 16, a resolution of the Senate directing the committee to inquire 
and report whether there was an existing legal State government in Louisiana had been referred 
to the committee. February 20, the committee submitted one report on the credentials and on the 
resolution. They reported that the State e lection held in November, 1872, in which Messrs. Kellogg 
and McEnery each claimed to have been elected governor, was void for fraud; that the Kellogg 
government, so called, approached more nearly a government de facto, and the McEnery govern¬ 
ment a government dejure; that had the election been fairly conducted, Kellogg and a legislature 
of the same political party would have been elected, but that, while the Kellogg government was 
in possession of the State-house, there was not a quorum of both houses of the Kellogg legislature 
who had any pretense of having been elected to their seats; that, under such circumstances,Con¬ 
gress bad authority to order a new election. The committee recommended the adoption of resolu¬ 
tions that there was no State government existing at the time in Louisiana, and that neither Ray 
nor McMillen was entitled to a seat, neither having been elected by the legislature of the State, and 
recommended the passage of a bill ordering an election in the State. Three members of the com¬ 
mittee submitted separate views dissenting from the conclusions of the majority . The bill referred 
to was rejected February 27, 1873. No further action was taken on the credentials. The expenses 
incurred by Messrs. Ray and McMillen were reimbursed. The proceedings of the Senate relating 
to the resolution of January 16 and the bill referred to are not included in the proceedings given 
below. 

The legislature electing Mr. McMillen for the unexpired term ending March 3,1873, elected him for 
the succeeding term, and the legislature electing Mr. Ray elected Pinckney B. S. Pinchback for the 
succeeding term. December 4,1873, the credentials of both were referred to the Committee on Privi¬ 
leges and Elections. December 15, the committee reported that they were evenly divided upon the 
question as to whether Mr. Pinchback was upon his credentials entitled to be sworn as a member, 
and asked to be discharged from the further consideration of the subject and to refer the whole 
matter to the determination of the Senate. On the same day a resolution was submitted that the 
credentials of Mr. Pinchback being in due form he was entitled to be sworn as a member, and that 
any grounds of contest should be made thereafter. January 26,1874, the resolution was modified so 
that the credentials of Mr. Pinchback be referred to the Committee on Privileges and Elections, and 
that the committee be instructed to inquire into the conduct of Mr. Pinchback in connection with 
his election. January 27, it was ordered that the credentials of Mr. McMillen be referred to the com¬ 
mittee. The Senate debated the resolution of January 26, but no further action was taken during the 
session. December 23,1874, a resolution was submitted that the Committee on Privileges and Elec¬ 
tions be instructed to report if Mr. Pinchback was entitled to be admitted on a prima facie case, or if 
such admission should be postponed until after the investigation of the charges of corruption. Jan¬ 
uary 22,1875, credentials of a second election of Mr. Pinchback, signed by Mr. Kellogg as governor, 
were presented. They were referred the same day, together with all the papers in relation to the 
contested seat, to the committee. (All subsequent action by the Senate was on Mr. Pinchback’s first 
credentials.) February 8, the committee reported that Mr. Pinchback had a prima facie title to ad¬ 
mission, and recommended the adoption of a resolution that he be admitted. There was a minority 
report. The Senate debated the resolution for some days, when it was ordered to lie on the table. 
March 5, the same resolution was submitted and debated. December 15,1875, the Senate resolved 
“ that the request of W. L. McMillen,heretofore claiming a seat in the Senate, for the return of his cre¬ 
dentials be granted.” December 20, the credentials of Robert H. Marr, appointed by John McEnery 
as governor, to fill the vacancy occasioned by the resignation of Mr. McMillen, were presented and 
ordered to lie on the table. January 18,1876, the papers purporting to be the credentials of James B. 
Eustis, elected by the legislature of Louisiana to the contested seat, were presented and ordered to 
lie on the table. January 24, they were referred to the committee. January 28, the committee re¬ 
ported that Mr. Pinchback having been elected to that seat, there was no vacancy, and recommended 
that the papers relating to Mr. Eustis be laid on the table. February 3, the Senate resumed the con¬ 
sideration of the resolution of March 5,1875, and March 8, the resolution having been amended by 
inserting the word “not” before the word “ admitted,” the Senate resolved that Mr. Pinchback be not 
admitted. March 9,1877, the Senate resolved that the credentials of Mr. Eustis be taken from the 
files and referred to the committee. December 1, the committee reported that the legislature elect¬ 
ing Mr. Eustis, made up according to what was known as the “ Wheeler compromise,” was the 
lawful legislature; that a vacancy existed at the time of his election; and that the committee felt 
bound to regard the vote of the Senate on Mr. Pinchback’s claim as final adjudication. They re¬ 
ported a resolution that Mr. Eustis be admitted. December 10, the resolution was agreed to, and 
Mr. Eustis took the seat which had been vacant since the resignation of Mr. Kellogg, January 13, 
1873. Mr. Pinchback was allowed compensation from the beginning of the term to the period of 
the determination of the contest. 

From the existence of two rival bodies, each claiming to be the legislature of Louisiana, arose 
another contest for the seat for the term beginning March 4,1877. Mr. Kellogg’s credentials were pre¬ 
sented Jan uarv 20,1877. Objectionftaving been made to the oaths being administered to him March 5, 
the Senate resolved, March 7, that the credentials lie on the table, to be referred to the Committee on 
Privileges and Elections when appointed. October 17, the credentials of Henry M.Spofford were pre¬ 
sented. October 18, the Senate resolved that the credentials of Mr. Spofford be referred to the com¬ 
mittee, and that the committee also report on the credentials of Mr. Kellogg. November 26, the com¬ 
mittee reported that Mr. Kellogg’s credentials were signed by Stephen B. Packard as governor, and 
hat he had been elected January 10,1877, by what was known as the Packard legislature; that Mr. 

S. Doc. 11-31 



482 


SENATE ELECTION CASES. 


Spofford’s credentials were signed by Francis T. Nicholls as governor, and that he had been chosen 
April 24,1877, by what was known as the Nicholls legislature; that the committee had gore behind 
the certificates of the returning officers of the State, and had investigated the elections of individ¬ 
ual members of the general assembly; that they found that the returning officers in throwing out 
certain polls where freedom of election was utterly destroyed, and declaring Republican candi¬ 
dates elected, did what they believed to be legal, and what was really equitable; that a sufficient 
number of the members by whose votes Mr. Kellogg was elected were lawfully and equitably enti¬ 
tled to their seats; that afterwards the Nicholls legislature by illegal means came to contain an un¬ 
disputed majority of members lawfully elected to the general assembly, but that until and after the 
election of Mr. Kellogg the Packard legislature was de facto and dejure the government of Louisi¬ 
ana ; that upon that legislature devolved the duty of electing a Senator; that the duty was performed 
in the election of Mr. Kellogg; that no subsequent events, especially successful revolution, could 
undo what had been lawfully done. The committee recommended the adoption of the following 
resolutions: “ Resolved , That William Pitt Kellogg is, upon the merits of the case, lawfully entitled 
to a seat in the Senate of the United States from the State of Louisiana for the term of six years, 
commencing on the 4th day of March, 1877, and that he be admitted thereto upon taking the proper 
oath. Resolved, That Henry M. Spofford is not entitled to a seat in the Senate of the United States.” 
There was a minority report. November 30, the resolutions were agreed to, and Mr. Kellogg took 
the seat. March 21,1879, a memorial of Mr. Spofford was presented, praying for an investigation 
into his claim to a seat, which was referred to a committee. May 7, the Senate resolved that the 
committee be authorized to make a full investigation into the subject. March 22, 1880, the com¬ 
mittee reported that the evidence taken showed that the Packard legislature was, in fact as well 
as in law, not a legislature, but a body of men assembled by fraud, held together by force, and con¬ 
trolled by bribery, with the aid and in the interest of the sitting member. The committee reported 
the testimony taken and recommended the adoption of resolutions that Mr. Kellogg was not en¬ 
titled to the seat in the Senate, and that Mr. Spofford was chosen by the legislature, and that he be 
admitted to the seat. A minority report claimed that the resolutions of November 30,1877, were 
binding as final decisions by the Senate; that a change in the party majority in the Senate was 
the only change that had taken place since Mr. Kellogg took his seat in pursuance of a resolution of 
November 30, 1877. The resolutions reported by the committee were debated, but no further action 
was taken by the Senate. December 7,1880, credentials of Thomas C. Manning, appointed by the 
governor in place of Mr. Spofford, who died August 20,1880, were presented and referred to the com¬ 
mittee. No further action was taken on the credentials. Compensation from March 4,1877, to 
August 20,1880, were allowed to the representatives of the estate of Mr. Spofford. The expenses in¬ 
curred by Messrs. Kellogg and Manning were reimbursed. 

The history of the cases here given consists of a transcript of the proceedings of the Senate relating 
to them from Senate Journals,3d sess. 42d Cong, to 1st sess. 47th Cong., and the reports of the com¬ 
mittee (except the testimony). 

Special references to the debates of each day are inserted below, and references to the reports are 
given in footnotes. 


RAY vs. McMILLEN. 


Contest for seat for unexpired term ending March 3, 1 873. 

Wednesday, January 22, 1873. 

Mr. West presented the credentials of W. L. McMillen, elected a Senator by the legis¬ 
lature of Louisiana to fill the vacancy occasioned by the resignation of William Pitt 
Kellogg; which were referred to the Committee on Privileges and Elections. Mr. West 
presented the credentials of John Ray, elected a Senator by the legislature of Louisiana 
to fill the vacancy occasioned by the resignation of William Pitt Kellogg; which were 
referred to the Committee on Privileges and Elections. 

Thursday, February 20, 1873. 

Mr. Carpenter, from the Committee on Privileges and Elections, who were directed by 
a resolution* of the Senate of January 16, 1873, to “inquire and report to the Senate 
whether there is an existing legal State government in Louisiana, and how and by whom 
it is constituted,” and to whom were referred the credentials of W. L. McMillen and 
John Ray, claiming seats in the Senate in the place of W. P. Kellogg, resigned, submit¬ 
ted a report (No. 457), accompanied by a billf (S. 1621) to establish a government in 
the State of Louisiana, republican in form; which was read and passed to a second read¬ 
ing. 

Mr. Morton, Mr. Hill, and Mr. Trumbull, members of the Committee on Privileges 
and Elections, each submitted views dissenting from the conclusions arrived at by the 
committee, which were ordered to be printed to accompany the report (No. 457). 


REPORT OF COMMITTEE.:}: 


In the Senate of the United States. 


February 20, 1873.—Ordered to be printed. 


Mr. Carpenter submitted the following report to accompany bill S. 1621 • 

The Committee on Privileges and Elections,, to whom was referred Senate resolution 
of January 16, 1873, as follows: 

“Resolved, That the Committee on Privileges and Elections be instructed to inquire 


* The resolution here given is the one on which this report was made. The onetriven hvnn 
In the Senate Journal (resolution of January 7, 1873) was reported February 10 (No 4171 * 

t For copy of bill see Congressional Globe, part 3, 3d sess. 42d Cong., pages 1850 1851 
t From Senate Reports, 3d sess. 42d Cong., No. 457. The accompanying testimony is here omitted 






THE LOUISIANA CASES, 1873-80. 


483 


and report to the Senate whether there is any existing State government in Louisiana 
and how and by whom it is constituted,” 

And to which committee were also referred the credentials of John Ray and W. L. Mc- 
Millen, both claiming the seat supposed to have been made vacant by the resignation of 
William Pitt Kellogg, a Senator of the United States from the State of Louisiana, re¬ 
spectfully submit the following report: 

Your committee have devoted weeks to the investigation of the subjects referred to 
them, and have taken much record and oral testimony, which accompanies this report. 

On the 15th of January, 1873, John McEnery certifies, under what purports to be the 
great seal of the State of Louisiana, that he is governor of said State; and that on the 
14th day of January, 1873, W. L. McMillen was by the legislature of said State duly 
elected a Senator of the United States to fill the unexpired term of Hon. William Pitt 
Kellogg. On the same day, January 15,1873, William Pitt Kellogg certifies, under what 
purports to be the great seal of said State, that he is the governor of said State, and 
that John Ray was duly elected by the legislature of said State on the 15th day of Jan¬ 
uary, 1873, to fill said unexpired term of said Kellogg in the Senate of the United 
States. 

The certificate of said John McEnery is countersigned by Y. A. Woodward, assistant 
secretary of state; and the certificate of said Kellogg is countersigned by P. G. Deslondes, 
secretary of state. 

The Senate must therefore determine whether either McMillen or Ray, and, if either, 
which, is entitled to said seat. 

The extraordinary fact that two men are claiming to be the governor of said State, 
and that two men are certified under the great seal of the State to have been elected to 
one and the same seat in the Senate, and the resolution of the Senate requiring your 
committee to inquire and report whether there is any existing State government in Lou¬ 
isiana and how and by whom it is constituted, have compelled your committee to inquire 
fully into*the condition of things in that State; and the conclusions to which your com¬ 
mittee have arrived are now to be stated: 

On the 4th day of November last, Henry C. Warmoth was governor of said State, hav¬ 
ing been elected in 1868. On that day a general election for governor and other State 
officers, and one-half of the senate and all the members of the house of representatives 
of said State, ought to have been holden. 

The constitution of said State, art. 46, provides as follows: 

“Returns of all elections for members of the general assembly shall be made to the 
secretary of state. ’ ’ 

The constitution, Title III, executive department, art. 48, provides as follows: 

‘ ‘ The supreme executive power of the State shall be vested in a chief magistrate, who 
shall be styled the governor of the State of Louisiana. He shall hold his office during 
the term of four years, and, together with the lieutenant-governor elected for the same 
term, be elected as follows: The qualified electors for representatives shall vote for gov¬ 
ernor and lieutenant-governor at the time and place for voting for representatives; the 
returns of every election shall be sealed up and transmitted by the proper returning 
officer to the secretary of state, who shall deliver them to the speaker of the house of 
representatives on the second day of the session of the general assembly then to be 
holden. The members of the general assembly shall meet in the house of representa¬ 
tives to examine and count the votes. The person having the greatest number of votes 
for governor shall be declared duly elected; but in case of a tie-vote between two or 
more candidates, one of them shall be immediately chosen governor by joint vote of the 
members of the general assembly. The person having the greatest number of votes 
polled for lieutenant-governor shall be lieutenant-governor; but in case of a tie-vote 
between two or more candidates one of them shall be immediately chosen lieutenant- 
governor by joint vote of the members of the general assembly.” 

Article 60 provides as follows: 

“He (the governor) shall nominate and, by and with the advice and consent of the 
senate, appoint all officers whose offices are established by the constitution, and whose 
appointments are not herein otherwise provided for: Provided , however , That the general 
assembly shall have a right to prescribe the mode of appointment to all other offices 
established by law.” 

These are provisions of the constitution with which the reconstructed State of Lou¬ 
isiana was admitted into the Union. 

On the 16th of March, 1870, the legislature of that State pretended to pass a law 
regulating elections, which among other things provided as follows: 

“Sec. 29. Be it further enacted , &c., That in any parish, precinct, ward, city, or town, 
in which during the time of registration or revision of registration, or on any day of 
election, there shall be any riot, tumult, acts of violence, intimidation, armed disturb¬ 
ance, bribery , or corrupt influences at any place within said parish, or at or near any poll 


484 


SENATE ELECTION CASES. 


or voting place, or place of registration or revision of registration, which riot, tumult, 
acts of violence, intimidation, armed disturbance, bribery, or corrupt influences shall 
prevent, or tend to prevent, a fair, free, peaceable, and full vote of all the qualified 
electors of said parish, precinct, ward, city, or town, it shall be the duty of the com¬ 
missioner of election, if such riot, tumult, acts of violence, intimidation, armed disturb¬ 
ance, bribery, or corrupt influences occur ©n the day of election, or of the supervisor of 
registration, or any assistant supervisor of registration of the parish, if they occur during 
the time of registration or revision of registration, to make in duplicate and under oath 
a clear and full statement of all the facts relating thereto, and of the effect produced 
by such riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or cor¬ 
rupt influences, in preventing a fair, free, peaceable, and full registration or election, 
and of the number of qualified electors deterred by such riot, tumult, acts of violence, 
intimidation, armed disturbance, bribery, or corrupt influences, from registering or vot¬ 
ing, which statement shall also be corroborated under oath by three respectable citizens, 
qualified electors of the parish. 

“When such statement is made by a commissioner of election or assistant supervisor 
of registration he shall forward both copies to the supervisor of registration immediately 
on the close of the election. The supervisor of registration shall forward one copy of all 
such statements, whether made by himself or a commissioner of election or by an assist¬ 
ant supervisor of registration, to the governor, and shall deposit one copy with the 
clerk of the district court of the parish. 

“Sec. 53. Be it further enacted , &c., That immediately upon the close of the polls on 
the day of election the commissioners of election at each poll or voting place shall seal 
the ballot-box by pasting slips of paper over the keyhole and the opening in the top 
thereof, and fastening the same with sealing-wax, on which they shall impress a seal, 
and they shall write the names of the commissioners on the said slips of paper; they 
shall forthwith convey the ballot-box so sealed to the office of, and deliver said ballot- 
box to, the supervisor of registration for the parish, who shall keep his office open for that 
purpose from the hour of the close of the election until all the votes from the several 
polls or voting places of the precinct shall have been received and counted. The super¬ 
visor of registration shall immediately upon the receipt of said ballot-box note its con¬ 
dition and the state of the seals and fastenings thereof, and shall then, in the presence 
of the commissioners of election and three citizens, freeholders of the parish for such poll 
or voting place, open the ballot-box and count the ballots therein, and make a list of all 
the names of the persons and offices voted for, the number of votes for each person, the 
number of ballots in the box, and the number of ballots rejected, and the reason there¬ 
for. Said statements shall be made in triplicate, and each copy thereof shall be signed 
and sworn to by the commissioners of election of the poll and by the supervisor of regis¬ 
tration. As soon as the supervisor of registration shall have made the statement above 
provided for, for each poll in his precinct or parish, and it shall have been sworn to and 
subscribed as above directed, the supervisor of registration shall inclose in an envelope 
of strong paper or cloth, securely sealed, one copy of such statement from each poll and 
one copy of the list of persons voting at each poll, and one copy of any statements as to 
violence or disturbance, bribery or corruption, or other offenses specified in section 29 of 
this act, if any there be, together with all memoranda and tally-lists used in making the 
count and statement of the votes, and shall send such package by mail, properly and 
plainly addressed, to the governor of the State. The supervisor of registration shall send 
a second copy of said statement to the governor of the State by the next most safe and 
speedy mode of conveyance, and shall retain the third copy in his -own possession. 

“Sec. 54. Be it further enacted , <&c., That the governor, the lieutenant-governor, the 
secretary of state, and John Lynch and T. C. Anderson, or a majority of them, shall be 
the returning officers for all elections in the State, a majority of whom shall constitute 
a quorum and have power to make the returns of all elections. In case of any vacancy 
by death, resignation, or otherwise by either of the board, then the vacancy shall be 
filled by the residue of the board of returning officers. The returning officers shall, after 
each election, before entering upon their duties, take and subscribe to the following oath 
before a judge of the supreme or any district court: 

“ ‘I, A. B., do solemnly swear (or affirm) that I will faithfully and diligently perform 
the duties of a returning officer as prescribed by law; that I will carefully and honestly 
canvass and compile the statements of the votes, and make a true and correct return of 
the election: So help me God. ’ 

“Within ten days after the closing of the election said returning officers shall meet 
in New Orleans to canvass and compile the statements of votes made by the supervisors 
of registration, and make returns of the election to the secretary of state. They shall 
continue in session until such returns have been completed. The governor shall at such 
meeting open in the presence of the said returning officers the statements of the super¬ 
visors of registration, and the said returning officers shall, from said statements, canvass 


THE LOUISIANA CASES, 1873-80. 


485 


and compile the returns of the election in duplicate. One copy of such returns they shall 
file in the office of the secretary of state, and of one copy they shall make public procla¬ 
mation by printing in the official journal and such other newspapers as they may deem 
proper, declaring the names of all persons and officers voted for, the number of votes for 
each person, and the names of the persons who have been duly and lawfully elected. 
The returns of the elections thus made and promulgated shall be prima facie evidence in 
all courts ol justice and before all civil officers until set aside, after a contest according 
to law, ot the right of any person named therein to hold and exercise the office to which 
he shall by such return be declared elected. 

“The governor shall within thirty days thereafter issue commissions to all officers 
thus declared elected who are required by law to be commissioned. 

“Sec. 55. Be it further enacted, &c., That in such canvass and compilation the return¬ 
ing officers shall observe the following order: They shall compile first the statements from 
all polls or voting places at which there shall have been a fair, free, and peaceable regis¬ 
tration and election. Whenever from any poll or voting place there shall be received 
the statement of any supervisor of registration, assistant supervisor of registration, or 
commissioner of election, in form as required by section 29 of this act, on affidavit of 
three or more citizens, of any riot, tumult, acts of violence, intimidation, armed dis¬ 
turbance, bribery, or corrupt influences which prevented or tended to prevent a fair, free, 
and peaceable and full vote of all qualified electors entitled to vote at such poll or vot¬ 
ing place, such returning officers shall not canvass, count, or compile the statement of 
votes from such poll or voting place until the statements from all other polls or voting 
places shall have been canvassed and compiled. The returning officers shall then pro¬ 
ceed to investigate the statements of riot, tumult, acts of violence, intimidation, armed 
disturbance, bribery, or corrupt influences at any such poll or voting place, and if from 
the evidence of such statements they shall be convinced that such riot, tumult, acts of 
violence, intimidation, armed disturbance, bribery, or corrupt influences did not mate¬ 
rially interfere with the purity and freedom of the election at such poll or voting place, 
or did not prevent a sufficient number of qualified voters thereat from registering or voting 
to materially change the result of the election, then, and not otherwise, said return¬ 
ing officers shall canvass and compile the vote of such poll or voting place with those 
previously canvassed and compiled; but if said returning officers shall not he fully sat¬ 
isfied thereof, it shall be their duty to examine further testimony in regard thereto, and 
to this end they shall have power to send for persons and papers. If, after such exami¬ 
nation, the said returning officers shall be convinced that said riot, tumult, acts of vio¬ 
lence, intimidation, armed disturbance, bribery, or corrupt influences did materially 
interfere with the purity and freedom of the election at such poll or voting place, or did 
prevent a sufficient number of the qualified electors thereat from registering and voting, 
to materially change the result of the election, then the said returning officers shall not 
canvass or compile the statement of the votes of such poll or voting place, but shall ex¬ 
clude it from their returns. The returning officers may appoint such clerks as may be 
necessary, for a length of time not to exceed thirty days, who shall be paid $5 per day 
each for the time actually served, which time shall be specified in a written account, 
subscribed and sworn to by such clerk, and approved by the returning officers. The 
auditor of public accounts shall issue his warrant upon the treasury for the amount of 
such account so subscribed and sworn to and approved. 

“ Sec 56. Be it further enacted , &c ., That it shall be the duty of the secretary of state 
to transmit to the clerk of the house of representatives and the secretary of the senate of 
the last general assembly a list of the names of such persons as, according to the returns, 
shall have been elected to either branch of the general assembly; and it shall be the duty 
of said clerk and secretary to place the names of the representatives and senators elect, 
so furnished, upon the roll of the house and of the senate, respectively; and those repre¬ 
sentatives and senators whose names are so placed by the clerk and secretary, respect¬ 
ively, in accordance with the foregoing provisions, and none other, shall be competent to 
organize the house of representatives or senate. Nothing in this act shall be construed 
to conflict with article 34 of the constitution of the State. 

‘ 1 Sec. 57. Be it further enacted, <&c ., That should any of the returning officers named 
in this act be a candidate for any office at any election, he shall be disqualified to act as 
returning officer for that election, and a majority of the remaining returning officers 
shall summon some respectable citizen to act as returning officer in place of the one so 
disqualified. ’ ’ 

This act is in conflict with the constitution in several particulars. First, the consti¬ 
tution provides that the return of the election of all members of the legislature shall be 
made to the secretary of state. (See art. 46.) And article 48 provides that the returns 
of every election for governor and lieutenant-governor shall be sealed up and transmitted 
to the secretary of state, who shall deliver them to the speaker of the house of represent¬ 
atives then next to be holden, and that the members of the general assembly—that is, 


486 


SENATE ELECTION CASES. 


both houses of ihe legislature—shall meet in the house of representatives to examine and 
count the votes for governor and lieutenant-governor. 

The act provides that the returns shall be made to the governor, and that the governor, 
the lieu ten tant-governor, the secretary of state, and John Lynch and T. C. Anderson, or 
a majority of them, shall be returning officers for all elections in the State; that they 
shall examine, canvass, and count the votes, and determine who has been elected gov¬ 
ernor and to other State offices, and who members of the legislature. The act provides 
for a totally different machinery from that provided by the constitution for the safe¬ 
keeping, examination, and count of the votes for governor and lieutenant-governor. The 
act, in so far as it provides that Lynch and Anderson shall be members of said canvassing 
board, is in conflict with the provision of the constitution in relation to appointments to 
office. 

Under these provisions of the constitution and laws of the State, a general election was 
held in the State on the 4th day of November, 1872, for governor and other Stateofficers, 
and members of the legislature. At this election McEnery and Kellogg were candidates 
for governor, and Dibble, who was then judge of the eighth district court of New Orleans, 
and Elmore were candidates for the office of judge of said court. 

The election was in fact conducted, and returns thereof made, in pretended pursuance 
of the election law above quoted from. Governor Warmoth held in his own hands the 
entire machinery of the election. He appointed the registrars and they appointed the 
commissioners of election, and the returns from the parishes were made to him, as the 
law required, and not to the secretary of state, as required by the constitution. 

On the 13th of November, 1872, there was a meeting of the returning or canvassing 
board. Present: Warmoth, governor; Pinchback, lieutenant-governor; Herron, secretary 
of state, and Lynch, Anderson being absent. At this meeting Governor Warmoth was 
elected chairman of the board, Lynch was elected secretary, and the board adjourned to 
November 14, 12 m. 

It seems that Governor Warmoth had become satisfied that the board, as constituted, 
would not do his bidding or execute his schemes, and he resolved to reconstruct it. 

This makes it necessary to consider the imbroglio which then existed in regard to the 
secretary of state. At the election in 1868, at which Warmoth was elected governor, 
Bovee was elected secretary of state. In August, 1871, upon pretense of some malfea¬ 
sance by Bovee, Warmoth issued a so-called “executive order, ” suspending Bovee as sec¬ 
retary of state, and appointing Herron in his place. This ‘ ‘ executive order, ’ ’ so far as 
your committee can ascertain, had no warrant in the constitution or laws of the State, 
but was an act of usurpation. But Bovee commenced suit against Herron in the eighth 
district court of New Orleans, under the “ intrusion act,” and in that court, Emerson, 
judge, presiding, it was declared that the governor had authority to suspend Bovee; that 
such suspension created a vacancy in the office, which the governor could fill by com¬ 
mission, to extend until the close of the next session of the legislature. Bovee attempted 
to appeal from this decision, but the supreme court dimissed the appeal for the reason 
that it had not been taken in time. This left the decision of the court below in full 
force, and it has never been set aside or reversed. 

The legislature next met in January, 1872, when Governor Warmoth presented to the 
house of representatives charges against Bovee, and the house appointed a committee to 
investigate these charges, with a view to his impeachment. This investigation lasted 
for some time, and, finally, near the close of the session, on the application of Bovee, was 
continued to the next session of the legislature, upon the condition that Bovee should 
remain suspended until the next session. 

In March, 1872, after the adjournment of the legislature, Bovee brought a second suit 
against Herron in the eighth district court of New Orleans, and this court decided, Dib¬ 
ble, J., presiding, that Bovee was entitled to the office, upon the ground that, conceding 
his original removal and the appointment of Herron in his place to have been legal, yet 
the commission of Herron expired with the session of the legislature next after the re¬ 
moval of Bovee and appointment of Herron. This decison was appealed from to the 
supreme court, and affirmed about the 2d day of December, 1872. 

In the mean time, on the 14th of November, 1872, at 10 a. m., Governor Warmoth 
had appointed Wharton in place of Herron, who up to that time had been secretary of 
state de facto; and the governor defends this upon two grounds: first, that Herron ’3 com¬ 
mission expired with the adjournment of the legislature, leaving the office vacant, and 
that by the constitution the governor is authorized to fill all vacancies happening during 
the vacation of the legislature; and, second, that Herron was a defaulter in a former 
office, and by a provision in an amendment to the constitution was ineligible to any office 
while thus in default. Wharton, under his appointment, obtained possession of the 
the office and It eld it, performing its duties down to the time when the supreme court— 
about December 2, 1872—decided, in Bovee s second suit, that he (Bovee) was entitled 
to the office. 


487 


THE LOUISIANA CASES, 1873-80. 

Governor Warmoth, apparently apprehending that this decision of the supreme court, 
on being certified to the eighth district court of New Orleans, would be executed by the 
installation ot Bovee in the office of secretary of state, issued a commission to Elmore as 
judge of said court, upon the ground that Elmore had been elected at the election of 
November 4,1872, in place of Dibble, and seated him by force on the bench to the exclu¬ 
sion of Dibble, although no canvass had been made of the votes given at said election foi 
the office of judge of said court; and when the mandate went down from the supreme 
court in the suit in which that court had decided that Bovee was legally secretary of 
state, Judge Elmore refused to execute the mandate and issue the proper writ to put 
Bovee in possession ot the office. Thereupon the supreme court adjudged Elmore to be 
in contempt, and sentenced him to a fine of $50, and imprisonment for ten days, which 
fine and imprisonment Governor Warmoth remitted by pardon. No writ in favor of 
Bovee was issued before the troops of the United States took possession of the State-house, 
as hereinafter stated, about the 6th of December, 1872, when Wharton was excluded 
from, and Bovee admitted to, the exercise of the office. 

Let us now return to the narrative of events following the last November election. 
We have seen that the first meeting of the board of canvassers, or returning officers, as 
styled by the law, was held November 13, 1872, and adjourned to November 14, at 12 
noon. Before the adjourned meeting of the board, to wit, November 14, 10 a. m., Gov¬ 
ernor Warmoth removed Herron and appointed Wharton in his place, who qualified 
both as secretary of state and a member of the canvassing board; and at 12 noon on that 
day, the hour to which said board stood adjourned, Warmoth, governor, Herron, sec¬ 
retary of state, Pinchback, lieutenant-governor, and Lynch appeared in said board. 
Pinchback and Anderson, having been candidates at the last November election, were 
disqualified to serve on said board. Wharton at this time appeared and presented his 
commission as secretary of state, and claimed a seat in the board in place of Herron. 
How these two vacancies were filled is disputed in the testimony. Governor Warmoth, 
Wharton, Cooley, Bragdon, Sheridan, and others swear that Hatch and Da Ponte were 
elected in the place of Pinchback and Anderson; while on the other hand it is testified 
by Lynch and Herron that Longstreet and Hawkins were elected to fill these vacancies. 
This difference gave rise to two boards: First, Warmoth, governor, Wharton as secre¬ 
tary of state, Hatch, and Da Ponte, claiming to be a majority of the board, admitting 
that Lynch was entitled to a seat, from which, however, he absented himself. Second, 
Herron, claiming still to be secretary of state, notwithstanding Wharton’s appointment; 
Longstreet and Hawkins, claiming to have been elected to fill the vacancies of Pinchback 
and Anderson; this board admitting that Governor Warmoth was one of its members, 
but he absenting himself from its sessions. These boards, for convenience of designation, 
will hereafter be called the Warmoth board and the Lynch board. 

Each of these boards appealed to the court. The Lynch board, about November 18, 
1872, commenced suit against the Warmoth board in the eighth district court of New 
Orleans, Dibble, J., presiding. About the same time the Warmoth board commenced 
suit against the Lynch board in the same court, and before the same judge. Dibble 
granted an injunction in both cases, enjoining both boards. In connection with this 
extraordinary proceeding of injunction against injunction, it should be borne in mind 
that Dibble was a judge holding over until his successor should be commissioned, and 
was therefore directly interested in restraining any canvass of votes which must deter¬ 
mine that his opponent (Elmore) was duly elected and entitled to his (Dibble’s) seat; 
and that he would continue in office as long as the injunctions granted by him should 
prevent a legal determination that his opponent (Elmore) had been elected in his place. 
That Elmore had, in fact, been elected over Dibble, two to one, is admitted by all parties 
in this controversy. 

About the 19th of November Dibble decided the suit commenced by the Lynch board 
in their favor, and enjoined the Warmoth board, and on the same day dismissed the 
suit in favor of the Warmoth board against the Lynch board. 

Thereupon Governor Warmoth took from his safe a bill which had been passed by 
the legislature in the previous spring, but never approved by him so as to become a law, 
and on the 20th of November, 1872, gave it his approval. 

This act, approved November 20, 1872, among other things, provides as follows: 

“Sec. 2. Be it further, enacted , &c., That five persons, to be elected by the senate from 
all political parties, shall be the returning officers for all elections in the State, a majority 
of whom shall constitute a quorum, and have power to make the returns of all elections. 
In case of any vacancy by death, resignation, of otherwise, by either of the board, then 
the vacancy shall be filled by the residue of the board of returning officers. The return¬ 
ing officers shall, after each election, before entering on their duties, take and subscribe 
to the following oath before a judge of the supreme or any district court: 

“ ‘I, A. B., do solemnly swear (or affirm) that I will faithfully and diligently perform 
the duties of a returning officer as prescribed by law; that I will carefully and honestly 


488 


SENATE ELECTION CASES. 


canvass an i compile the statements of the votes, and make a true and correct return of 
the election: So help me God.’ 

“Within ten days after the closing of the election said returning officers shall meet in 
New Orleans to canvass and compile the statement of votes made by the commissioners 
of election, and make returns of the election to the secretary of state. They shall con¬ 
tinue in session until such returns have been compiled. The presiding officer shall, at 
such meeting, open, in the presence of said returning officers, the statements of the com¬ 
missioners of election, and the said returning officers shall, from said statements, canvass 
and compile the returns of the election in duplicate; one copy of such returns they shall 
file in the office of the secretary of state, and of one copy they shall make public procla¬ 
mation, by printing in the official journal and such other newspapers as they may deem 
proper, declaring the names of all persons and officers voted for, the number of votes for 
each person, and the names of the persons who have been duly and lawfully elected. 
The return of the election thus made and promulgated shall be prima facie evidence in 
all courts of justice and before all civil officers, until set aside after contest according to 
law, of the right of any person named therein to hold and exercise the office to which he 
shall by such return be declared elected. The governor shall, within thirty days there¬ 
after, issue commissions to all officers thus declared elected who are required by law to 
be commissioned.” 

And further, as follows: 

“Sec. 71. Be it further enacted , <&c., That this act shall take effect from and after its 
passage, and that all others on the subject of election laws be, and the same are hereby, 
repealed.” 

Governor Warmoth claimed that the effect of this act was to abolish all previously 
existing canvassing or returning boards; and that inasmuch as the act took effect during 
the vacation of the legislature he was authorized to appoint the board under that pro¬ 
vision of the constitution before quoted, which authorizes the governor to fill vacancies 
occurring during such vacation. 

On the same day upon which the governor approved the last-named act he issued a 
proclamation calling a session of the legislature to convene on the 9th day of December, 
1872. It is admitted on all hands that the members of the legislature elected Novem¬ 
ber 4, 1872, if any were elected, were authorized to convene under this proclamation. 

On the 21st of November motion was made before Judge Dibble for a new trial in the 
snit of the Lynch board against the Warmoth board, in which the judge had decided in 
favor of the Lynch board, enjoining the Warmoth board, and in the suit in favor of the 
Warmoth board against the Lynch board, which that judge had dismissed; and these 
motions were set down for hearing before Judge Dibble on the 25th of November. Be¬ 
fore this day arrived Governor Warmoth pretended to be convinced that Elmore had been 
elected in place of Dibble; commissioned Elmore, who, supported by the sheriff and a 
posse comitatus of roughs and thugs, took his place on the bench and excluded Dibble. 
It should be stated, however, in this connection that although no legal canvass had been 
made ascertaining the fact that Elmore was elected, nevertheless it is admitted by all 
parties that he was in fact elected by about 9,000 majority. 

On the 3d of December, Elmore, who had been commissioned as aforesaid, and was 
seated on the bench substantially by force, granted the motion for new trial in both 
cases upon the ground that the act approved November 20 had abolished all former 
boards; and he dissolved the injunction granted against the Warmoth board and dis¬ 
missed both suits. 

Governor Warmoth having thus by the judgment of a judge by him prematurely com¬ 
missioned rid himself of the embarrassment arising from the two boards of canvassers 
pretending to act, on the evening of the 3d of December proceeded to fill the board pro¬ 
vided for by the act of November 20 by appointing De Feriet, Wiltz, Isabel, Austin, and 
Taylor in pretended pursuance of the authority conferred upon him by article 61 of the 
constitution, to fill vacancies happening in the vacation of the legislature. 

We now come to the saddest chapter in this melancholy business—the interference of 
Federal authority with the affairs of the State of Louisiana. 

The fifteenth amendment of the Constitution provides as follows : 

“ Section 1. The right of citizens of the United States to vote shall not be denied or 
abridged by the United States, or by any State, on account of race, color, or previous 
condition of servitude. 

“Sec. 2. The Congress shall have power to enforce this article by appropriate legis¬ 
lation.” 

The subject of suffrage belongs entirely to the States and must be regulated by them 
exclusively, with the single exception created by this amendment, that no State can 
deny to a citizen of the United States the right to vote on account of race, color, or pre¬ 
vious condition of servitude; and the extent of the power of Congress over the subject is 
to see to it that the States do not violate this provision. Congress has the undoubted 


THE LOUISIANA CASES, 1873-80. 


489 


power to enact such laws as are necessary and proper to secure to the colored citizen his 
right to vote upon the same terms and conditions and with the same effect as the right 
is enjoyed and exercised by white citizens; and, speaking of the case before us, this is 
the extent of jurisdiction possessed by the National Government in regard to State 
elections. 

The act of Congress of May 31, 1870 (16 Stat. at Large, 140), provides as follows: 

Section 1 . That all citizens of the United States who are or shall be otherwise 
qualified by law to vote at any election by the people in any State, Territory, district, 
county, city, parish, township, school district, municipality, or other territorial subdi¬ 
vision, shall be entitled and allowed to vote at all such elections without distinction of 
race, color, or previous condition of servitude, any constitution, law, custom, usage, or 
regulation of any State or Territory, or by or under its authority, to the contrary not¬ 
withstanding.” 

The second section provides for registration under the laws of the State without dis¬ 
tinction of race, color, or previous condition of servitude; and section 3 provides that 
where any act is required by any State law—as registration, for instance—“the offer of 
any such citizen to perform the act required to be done, as aforesaid, shall, if it fail to 
be carried into execution by the wrongful act” of the State officer, be deemed and held 
a performance in law of the act required; and that the person so offering and failing, as 
aforesaid, shall be entitled to vote in the same manner as if he had in fact performed 
such act. 

Section 23 is as follows: 

“That when any person shall be defeated or deprived of his election to any office, ex¬ 
cept elector of President or Vice-President, Representative or Delegate in Congress, or 
member of a State legislature, by reason of the denial to any citizen or citizens who 
shall offer to vote, of the right to vote, on account of race, color, or previous condition 
of servitude, his right to hold and enjoy such office and the emoluments thereof shall 
not be impaired by such denial; and such person may bring any appropriate suit or pro¬ 
ceeding to recover possession of such office; and in cases where it shall appear that the 
sole question touching the title to such office arises out of the denial of the right to vote 
to citizens who so offered to vote, on account of race, color, or previous condition of 
servitude, such suit or proceeding may be instituted in the circuit or district court of 
the United States of the circuit or district in which such person resides. And said cir¬ 
cuit or district court shall have, concurrently with the State courts, jurisdiction thereof, 
so far as to determine the rights of the parties to such office by reason of the denial of 
the right guaranteed by the fifteenth article of amendment to the Constitution of the 
United States and secured by this act.” 

This act was amended by the act of February 28, 1871, 16 Stat. L., 433, section 15, 
providing as follows: 

“That the jurisdiction of the circuit court of the United States shall extend to all 
cases in law or equity arising under the provisions of this act or the act hereby amended; 
and if any person shall receive any injury to his person or property, for or on account of 
any act by him done under any of the provisions of this act or the act hereby amended, he 
shall be entitled to maintain suit for damages therefor in the circuit court of the United 
States in the district wherein the party doing the injury may reside or shall be found.” 

These acts were passed to give effect to the provisions of the fifteenth amendment and 
regulate elections for members of Congress; and, so far as they apply to the election of 
State officers and members of State legislatures, they are confined to the single purpose 
of securing to all citizens the right to vote without distinction of race, color, or previous 
condition of servitude; and an act of Congress attempting to go beyond this would be 
void for want of authority in Congress to enact it. Therefore, a contest between two 
citizens of the same State in relation to the office of governor, or other State office, can¬ 
not be waged in a Federal court, except upon the ground that the contestant has been 
defeated or deprived of his election by reason of the denial to any citizen or citizens of 
the right to vote on account of race, color, or previous condition of servitude. If the 
contestant has been defeated in consequence of a denial to citizens of the right to vote 
on account of their belonging to a particular political party, or a particular church, or 
for any reason, except race, color, or previous condition of servitude, no Federal court 
has power to hear and determine it. 

Keeping this in mind, we come to consider the proceedings in the circuit court of the 
United States for the district of Louisiana. 

On the 16th of November, 1872, Kellogg filed his bill on the equity side of said cir¬ 
cuit court against the Warmoth board—Warmoth, Wharton, Hatch, and Da Ponte— 
and against McEnery, and the New Orleans Republican Printing Company, publishers of 
the New Orleans Republican, being the official journal of the State, stating that a gen¬ 
eral election was held on the 4th day of November, 1872, for governor and other State 
officers; that Kellogg and McEnery were candidates for governor at said election; that 


490 


SENATE ELECTION CASES. 


Governor Warmoth had the power by law to appoint registrars; and that prior to the 
election Warmoth had repeatedly avowed his intention to unlawfully defeat the election 
of Kellogg, and to that end had appointed persons who would aid him in his purpose; 
and made it a condition of their appointment that they should so aid him, and that one 
of his plans was to deprive a large number of citizens of the right to vote, by refusing 
them registration on account of their race, color, and previous condition; that this plan 
was carried into execution, so that at least 10,000 voters were on that account deprived 
of registration; that persons so refused registration applied to vote at the election and 
were denied; that he (Kellogg) was in possession of evidence of this fact; and that he 
is informed and believes that from three to five thousand persons who had offered to be 
registered had been denied the right to vote on account of race and color. 

That Warmoth, combining with the officers appointed by him, had caused a dishonest 
and false count of votes cast at said election, and had falsified and caused false returns 
of the election to be made; that a number of ballots of citizens of color, sufficient to 
have elected him, had not been counted. 

That when the canvassing board met, November 14, 1872, Longstreet and Hawkins 
were elected by the board to fill the vacancies of Pinchback and Anderson; that War¬ 
moth, being in possession of returns, refused to open and present the same to said board; 
that Warmoth, without authority, had pretended to eject Herron from the office of sec¬ 
retary of state, and had attempted with force and arms to take possession of the records 
and archives of that office, and had unlawfully pretended to appoint Wharton secretary 
of state; and that Wharton pretended to be a member of the board, and that Warmoth 
and Wharton had pretended to elect Hatch and Da Ponte to fill the vacancies of Pinch¬ 
back and Anderson, and that Warmoth had unlawfully opened and submitted the returns 
to this illegal board, and that it was the intention of the board to make a false canvass 
and declare McEnery elected; that although the canvass by such unlawful board would 
be void, yet their determination would embarrass him in legal proceedings to obtain said 
office; and that it was the intention of Warmoth and his board to destroy the returns; 
and the intention of McEnery and the Warmoth board to have it declared and published 
in the official paper that he (McEnery) was elected. 

That Warmoth had totally disregarded the law in regard to said election; that he had 
done everything in his power to defeat the will of the people; that he intended to de¬ 
stroy the returns and all evidences of the election, so as to render it impossible for him 
(Kellogg) ever to establish his right to the office. 

The bill prayed an injunction against Warmoth, restraining him from canvassing the 
returns except in presence of the Lynch board, and commanding him not to deliver the 
returns to the Warmoth board, and restraining the Warmoth board from acting or mak¬ 
ing any return or certificate in regard to said election; and restraining McEnery from 
pretending to act as governor, or asserting any claim to the office, by virtuo of any certifi¬ 
cate or canvass then made, or thereafter to be made, by the Warmoth board; and re¬ 
straining the publishers of the official newspaper from publishing any canvass made by 
the Warmoth board. 

The prayer for the relief is as follows: 

“And it may also please your honors to order and adjudge that the said defendant, 
H. C. Warmoth, within a period of time to be fixed by your honors, do make and deposit 
in this honorable court, in the office of the clerk thereof, full, true, and exact sworn 
copies of each and every paper, document, affidavit, tally-sheet, list, sworn statement 
or certificate or letter which he may have received or may have come into his possession 
from any commissioner or commissioners, or any officer concerned in the control or man¬ 
agement of said election, or who had any duties to perform in connection therewith, and 
from all supervisors or assistant supervisors of election, in any manner relating to said 
election, in order that the same may be beyond the power of destruction by the said de¬ 
fendant Warmoth and his said confederates, and in order that the same may be saved 
to your orator as evidence to enable him to establish his right to the office of governor 
as aforesaid in any judicial proceedings which he may be compelled to institute in this 
court to establish and vindicate the same. 

“ And that the same may be also preserved for use or proof in support of your orator’s 
bill in this behalf, and to establish his right to the relief by him herein and hereby prayed 
for, and that the said evidence, documents, &c.,'to be produced remain on file in this 
court in order that the same may be preserved as evidence in any action which your ora¬ 
tor may be required to institute in this court to establish his said right to said office.” 

The bill also contained prayer for process and for general relief. 

It is at least questionable whether this bill on its face presented a case within the 
jurisdiction of the Federal court. Although it is alleged in the former part of the bill 
that about ten thousand persons had been denied registration on account of race and 
color, and that from three to five thousand of those thus deprived of registration were 
denied the right to vote, yet this wrong was completed at the time the bill was filed, and 


THE LOUISIANA CASES, 1873-80. 


491 


it was not in the power of the court to undo it. In the subsequent part of the hill the 
pleader appears to ignore the fact of race, color, or previous condition of servitude as an 
element of jurisdiction. 

Again, it can hardly be claimed that Kellogg had been deprived of his office of gov¬ 
ernor at the time the bill was filed. The bill states, indeed, Kellogg’s apprehension that 
this board would declare McEnery elected, and that such declaration would embarrass 
him in the enforcement of his legal right to the office. 

On the other hand, it may reasonably be claimed that if Warmoth should destroy 
the returns it would be out of Kellogg’s power to establish the fact that he had been 
defeated because citizens had not been allowed to vote on account of race and color. 

Conceding, however, that the bill did present a case within the jurisdiction of the 
court, that jurisdiction was limited by the scope of the bill, and gave no warrant to the 
extraordinary proceedings which were subsequently had in the case. The only legiti¬ 
mate purpose of this bill was to preserve testimony, and the subsequent attempt of the 
court, on a bill in equity, to determine the title of Warmoth, Wharton, and others to 
act as State canvassers was a matter wholly beyond the jurisdiction of Federal courts. 
The bill shows that Warmoth, Wharton, Hatch, and Da Ponte claimed to be members 
of the board, and were acting as such; and alleges that they were not members of the 
board, but that Lynch, Herron, Longstreet, Hawkins, and Warmoth were the legal mem¬ 
bers of said board. What jurisdiction had the Federal court to determine the right 
between these contending boards ? They were State officers, and it is not alleged in the 
bill that any colored man was deprived of any right which had resulted in the election 
of Hatch and Da Ponte. Besides, the question of right to this office was entirely collat¬ 
eral in the proceedings. Wharton and Longstreet might have contested their respective 
rights in the State courts under the “intrusion act” of that State, which corresponds to 
proceedings by quo warranto at the common law. But it was never before pretended that 
such a question could be settled by suit in equity. 

The utmost which the court had authority to do upon this bill was to restrain the 
destruction of the returns and documents, to preserve which the bill was filed. They 
were State records, and the Federal court had no right to take possession of them. The 
bill did not ask the court to do so, but only to require copies to be filed. But the court 
issued the following restraining order: 

“United States of America, circuit court of the United States, fifth circuit and district 
of Louisiana, November term, A. D. 1872. 

“New Orleans, Saturday , November 16, 1872. 

“Court met pursuant to adjournment. Present, the Hon. E. H. Durell, district 
judge. 

“William P. Kellogg 1 

vs. 1 No. 6830. 

“H. C. Warmoth et al. J 

“On motion of J. K. Beckwith, counsel and solicitor for complainant, it is ordered that 
H. C. Warmoth, Jack Wharton, Frank H. Hatch, Durant Da Ponte, John McEnery, 
and the New Orleans Republican Printing Company, publishers of the New Orleans 
Republican, a newspaper, being the official journal of the State of Louisiana, be enjoined 
and restrained from in any manner, either directly or indirectly, pretending to consider 
or canvass any certificate, statement, or return of any supervisor of registration, except 
in the presence of the legal returning officers named in the bill of complaint filed this 
day, to wit, John Lynch, Jacob Hawkins, James Longstreet, and Francis J. Herron; 
and it is further ordered that the said H. C. Warmoth desist and refrain from submit¬ 
ting to the defendants, Jack Wharton, Frank H. Hatch, and Durant Da Ponte, or any 
or either of them, either as pretended members of any board of returning officers of elec¬ 
tions of the State of Louisiana, or as individuals, any statements, certificates of returns, 
or pretended statements, certificates, or returns of election, and to desist from assisting, 
aiding, abetting, or permitting any other person or persons whatsoever other than John 
Lynch, Jacob Hawkins, James Longstreet, and Francis J. Herron, or their duly quali¬ 
fied successors, as returning officers, to inspect, consider, or have custody of or access to 
said statements, certificates, or returns of said supervisors of registration, or any other 
paper, document, affidavit, or proof that may have come into the hands of said Warmoth, 
or shall hereafter come into his hand, relating to said election, or to the fairness or cor¬ 
rectness thereof, and which by law it is his duty to submit to the said John Lynch, 
Jacob Hawkins, James Longstreet, and Francis J. Herron, the said legal board of 
returning officers of elections, and which should be properly considered by them. 

“And it is further ordered that the said H. C. Warmoth, Jack Wharton, Frank H. 


SENATE ELECTION CASES. 


m 

Hatch, and Durant Da Ponte, and each of them, be commanded and enjoined to refrain 
and desist from pretending to act together as a board of returning officers, or as return¬ 
ing officers of elections, from canvassing or attempting to canvass or consider any certifi¬ 
cate, document, affidavit, return, statement of votes, or any paper whatsoever properly 
relating to said election mentioned in the said hill of complaint, and from attempting to 
make a canvass, to make, declare, or publish any pretended deduction, calculation, state¬ 
ment, or proclamation based thereon, or pretended to be derived therefrom, in any way 
relating or pertaining to said election mentioned in the said bill of complaint, held on 
the 4th day of November, 1872, or certifying to any candidate for office at said election any 
certificate of election, or any statement of the result of said election tending to show any 
right to office in any person growing out of ballots cast at said election, and from meddling 
with, altering, suppressing, falsifying, obliterating, or destroying any document, paper, 
voucher, proof, statement of votes, or certificate relating to said election. And it is further 
ordered that the said John McEnery be commanded, enjoined, restrained, and inhibited 
from in any manner acting or pretending to act as governor of the State of Louisiana, and 
from making any pretensions or asserting any claim to the office of governor of said State by 
virtue of any pretended evidence of election thereto under or by virtue of any certificate, 
document, or count, canvass, or adjudication now or hereafter made by the said defendant, 
H. C. Warmoth, and the said defendants, Jack Wharton, Frank H. Hatch, Durant Da 
Ponte, in this bill charged to be unlawfully combined and conspired as returning officers. 
And it is further ordered that the said New Orleans Republican Printing Company, 
under whose control and direction the newspaper called the New Orleans Republican, 
the official journal of the State of Louisiana, is published, whereof W. R. Fish is presi¬ 
dent, be enjoined and restrained from in any manner publishing any official notice, 
document, or statement relating to any canvass or statement of votes made, or pretended 
to be made, or in any manner emanating from the said H. C. Warmoth, and said Jack 
Wharton, Frank H. Hatch, Durant Da Ponte, or either of them, as a pretended board 
of returning officers of elections, in any manner relating to the said election held on the 
4th day of November, A. D. 1872. 

“And it is further ordered that the said defendants, H. C. Warmoth, Jack Wharton, 
Frank H. Hatch, Durant Da Ponte, John McEnery, and the New Orleans Republican 
Printing Company, named in the bill of complaint this day filed, be so commanded, en¬ 
joined, and restrained until the further order of this honorable court.” 

And this order was duly served by the marshal on the 17th of November, 1872. 

On the 19th of November, 1872, Kellogg filed an affidavit, as follows: 

“William P. Kellogg, being first duly sworn, deposeth and saith that he is advised 
and informed, and thereby believes, that the said defendants, H. C. Warmoth, Durant 
Da Ponte, Jack Wharton, and Frank H. Hatch, are now, and at all times since the mak¬ 
ing and service of the restraining order, issued in this cause, have been acting in disre¬ 
gard and in disobedience thereof, in contempt of the lawful orders of this court, and have 
aided, abetted, and countenanced the continued possession, custody, and canvass of the 
returns, certificates of officers connected with said elections, by persons other than the 
said Lynch, Longstreet, Herron, and Hawkins, and have in other material respects dis¬ 
obeyed the orders of this honorable court. 

“WM. P. KELLOGG. 

“ Sworn to and subscribed before me this 19th November, 1872. 

“J. W. GURLEY, 

“ United States Commissioner .” 

A rule was granted against Warmoth and others to show cause, upon which interrog¬ 
atories and answers were filed, and this matter was slowly progressing when Governor 
Warmoth, to escape the clutches of Judge Durell, approved the act of November 20, 
1872, which act repealed all the laws before then in force in regard to canvassing boards, 
and of course legislated both the Warmoth and Lynch boards out of existence. After this 
it is difficult to see what was left of the case made by Kellogg’s bill in the United States 
court. Warmoth exercised the legislative power of the State, took the whole subject 
away from the United States court, and, on the evening of December 3, appointed De 
Feriet, Wiltz, Isabelle, Austin, and Taylor a canvassing board under the act of Novem¬ 
ber 20, and at the same time, as governor, commenced suit in the eighth district court 
before Judge Elmore, and obtained an injunction restraining the Lynch board, upon the 
ground that the act of November 20 had abolished that board. The Lynch board applied 
to the Federal court for a certiorari to remove this suit of Warmoth against the Lynch 
board into the Federal court. The State court treated the writ with contempt and made 
no retumto it. No proceedings were had in the Federal court on the certiorari, nor was 
any motion made in that court to dissolve the injunction which had been granted against 
the Lynch board. Conceding the right of the Federal court to issue this writ of certi- 


THE LOUISIANA CASES, 1873-80. 


493 


orari, its effect, when served upon the State court, was to transfer the cause to the Fed¬ 
eral court; and the Lynch board might have applied to the Federal court to compel a 
return, and for a dissolution of the injunction granted by the State court. But as no 
such application was made to the Federal court, the injunction granted by the State 
court remains in full force against the Lynch board. 

Warmoth having thus become master of the situation, having by the act approved No¬ 
vember 20 legislated all former boards out of existence, and obtained an injunction against 
the Lynch board, restraining them upon the ground tha>t their offices had been abolished, 
ordered the De Feriet board tothefront; and that board, on the4thdayof December, made 
their canvass, declaring McEnery elected governor, Penn lieutenant-governor, Graham 
auditor, Armistead secretary of state, Ogden attorney-general, and Lusher superintend¬ 
ent of education; and declaring, also, who had been elected members of the legislature; 
and on the same day Governor Warmoth issued his proclamation promulgating this re¬ 
sult, and therewith published the certificate of Wharton, secretary of state, containing 
the list of members of the legislature, to the secretary of the senate and clerk of the 
house of representatives, as required bylaw; being those declared by the De Feriet board 
to have been elected at said November election. (See pages 303, 304 of testimony at¬ 
tached to this report.) 

The governor undoubtedly congratulated himself at this point that he had secured a 
complete victory over Judge Durell; but, unfortunately for the governor’s joy, Judge 
Durell took a very different view of the situation; and, out of court, at his house, late 
at night, December 5, without application by any party, made the following order, which 
is without parallel, and it is hoped will remain so, in judicial proceedings. 

“Circuit court of the United States, fifth circuit and district of Louisiana, in equity. 

“William P. Kellogg j 

vs. \ No. 6830. 

“H. C. Warmoth et al. J 

“Whereas Henry C. Warmoth, one of the respondents herein, has, in violation of the 
restraining order herein, issued the following proclamation and returns of certain per¬ 
sons claiming to be a board of returning officers, all in violation and contempt of the said 
restraining order, as follows, viz: 


“ ‘ Proclamation . 


“‘State of Louisiana. Executive Department, 

“ 1 New Orleans , December 4, 1872. 


‘“Whereas P. S. Wiltz, Gabriel De Feriet, Thomas Isabelle, J. A. Taylor, and J. E. 
Austin, returning officers appointed by the governor to fill vacancies existing, in accord¬ 
ance with the constitution and laws of the State of Louisiana, have made declaration of 
the result of an election held November 4,1872, and have declared certain persons elected 
to the senate and house of representatives of the State of Louisiana, as will appear from 
the returns herewith attached and made a part of this proclamation; and 

“ ‘Whereas such returns are compiled from the official returns of commissioners of 
election and supervisors of registration, on file in this office, and are in fact and in form 
accurate and correct, and made in accordance with law: 

“ ‘Now, therefore, I, Henry Clay Warmoth, governor of the State of Louisiana, do issue 
this my proclamation, making known the result of said election aforesaid, and command 
all officers and persons within the State of Louisiana to take notice of and respect the 
same. 

‘ ‘ ‘ Given nnder my hand and the seal of the State this 4th day of December, A. D. 
1872, and of the independence of the United States the ninety-seventh. 

“‘H. C. WARMOTH. 


“ ‘ By the governor: 


“ ‘ Y. A. WOODWARD, 

“ 1 Assistant Secretary of State.' 


“Now, therefore, in order to prevent the further obstruction of the proceedings in this 
cause, and, further, to prevent a violation of the orders of this court, to the imminent 
danger of disturbing the public peace, it is hereby ordered that the marshal of the United 
States for the district of Louisiana shall forthwith take possession of the building known 
as the Mechanics’ Institute, and occupied as the State-house for the assembling of the 
legislature therein, in the city of New Orleans, and hold the same subject to the further 
order of this court, and meanwhile to prevent all unlawful assemblage therein under 
the guise or pretext of authority claimed by virtue of pretended canvass and returns 


494 


SENATE ELECTION CASES. 


made by said pretended returning officers in contempt and violation of said restraining 
order; but the marshal is directed to allow the ingress and egress to and from the public 
offices in said building of persons entitled to the same. 

“E. H. DURELL.” 

It is impossible to conceive of a more irregular, illegal, and in every way inexcusable 
act on the part of a judge. Conceding the power of the court to make such an order, 
the judge, out of court, had no more authority to make it than had the marshal. It has 
not even the form of judicial process. It was not sealed, nor was it signed by the clerk, 
and had no more legal effect than an order issued by any private citizen. 

There had been no amendment of the bill of complaint. The law of November 20 had 
been promulgated. The De Feriet board had been appointed in pretended pursuance 
thereof. Whether under the constitution the governor had the power, in the vacation 
of the legislature, to appoint that board, upon the ground that the act of November 20 
created offices, and therefore vacancies in office, your committee do not inquire. But it 
is understood that the constitution has been so construed in that State, and that Judge 
Dibble was appointed by the governor under similar circumstances. 

The De Feriet board, therefore, had color of official existence. Their canvass was com¬ 
pleted, and the result promulgated under color of the State law, and it is clear that this 
gave the Federal court no more right to seize the State-house than to seize this Capitol. 

The marshal, on receiving this pretended order, called for a detachment of United 
States troops to act as a posse comitatus, seized the State-house at 2 a. m. of December 6, 
and held it for weeks. 

Afterward, on the same day, Judge Durell delivered an opinion in the Kellogg case on 
the application for injunctions pendente lite , and made an order granting the injunction as 
prayed for by the bill. As matter of justice to Judge Durell, we give his opinion, order, 
and injunction in full: 

“United States circuit court, in equity. 

“ William Pitt Kellogg l 

va. \ No. 6830. 

“Henry C. Warmoth et al. J 

“Filed December 6, 1872. 


“Opinion of the court. 

* ‘ This application comes before me under a bill to preserve evidence to enable the com¬ 
plainant to prosecute a suit at law. This bill is well known to courts of chancery, and 
is founded upon the statute, being chapter 104 of the second session of the Forty-first 
Congress, sixteenth Statutes at Large, page 140, entitled ‘ An act to enforce the rights of 
citizens of the United States to vote in the several States of this Union, and for other 
purposes,’ and upon the amendment to the same, being chapter 99 of the third session 
of the same Congress, sixteenth Statutes at Large, page 433. Section 1 of the first act 
cited provides as follows: 

“ ‘ That all citizens of the United States who are or shall be otherwise qualified by law 
to vote at any election by the people in any State, Territory, district, county, city, par¬ 
ish, township, school district, municipality, or other territorial subdivision, shall be 
entitled and allowed to vote at all such elections without distinction of race, color, or 
previous condition of servitude, any constitution, law, custom, usage, or regulation of 
any State or Territory by or under its authority to the contrary notwithstanding.’ 

“Section 3 of the same act provides: 

“ ‘That whenever, by or under the authority of laws of any State, or the laws of any 
Territory, any act is or shall be required to be done by any citizen as a prerequisite to 
qualify or entitle him to vote, the offer of any such citizen to perform the act required to 
be done as aforesaid shall, if it fail to be carried into execution by reason of the wrongful 
act or omission aforesaid of the person or officer charged with the duty of receiving or 
permitting such performance or offer to perform, or acting therein, be deemed and held 
as a performance in law of such act. And the person so offering and failing, as aforesaid, 
being otherwise qualified, shall be entitled to vote in the same manner and in the same 
extent as if he had in fact performed such act. ’ 

“Section 23 provides as follows: 

“ ‘That whenever any person shall be defeated or deprived of his election to any office 
except elector or President or Vice-President, Representative or Delegate in Congress, or 
member of a State legislature, by reason of the denial to any citizen or citizens who shall 
offer to vote, of the right to vote, on account of race, color, or previous condition of servi- 


495 


THE LOUISIANA CASES, 1873-80. 

tude, his right to hold and enjoy any such office and the emoluments thereof shall not 
be impaired by such denial.’ 

“And section 15 of the amending act provides as follows: 

“ ‘That the jurisdiction of the circuit court of the United States shall extend to all 
cases in law or equity arising under the provisions of this act, or the act hereby amended, 
and if any person shall receive any injury to his person or property for or on account of 
any act by him done, under any of the provisions of this act or the act hereby amended, 
he shall be entitled to maintain a suit for damages thereof in the circuit court of the 
United States in the district wherein the party doing the injury may reside or shall be 
found. ’ 

‘ ‘ These two acts were passed by Congress to enforce the provision of the Constitution 
of the United States known as the fifteenth amendment (16 Statutes at Large, pages 
140 and 433), which reads as follows: 

“ ‘The right of citizens of the United States to vote shall not be denied or abridged 
by the United States, or by any State, on account of race, color, or previous condition of 
servitude. 

“ ‘Sec. 2. The Congress shall have power to enforce this article by appropriate legis¬ 
lation.’ 

“The whole matter involved in the discussion, which has occupied more than a week 
before me, has been presented on both sides with such ability, research, and fullness 
that I feel greatly indebted to the solicitors of both the complainant and the respond¬ 
ents for the aid which they have rendered in enabling me to come to an early decision. 

“The first question to be solved is, are the acts referred to constitutional? Do they 
fall within the appropriate legislation authorized and imposed as a duty upon Congress 
by the second section of the amendment? To solve this question we must look to the 
object proposed to be attained by the amendment. It was to protect all citizens of the 
United States, including the recently emancipated and enfranchised colored citizens, in 
the full and free exercise of the right to vote. Nine years previous to the adoption of 
the amendment, and the enactment of the statutes passed to enforce the same, four 
millions of those who now constitute the great body of the citizens of the United States 
were slaves. It is not necessary here to repeat the history of slavery in this country; 
how it was and continued to be from the very foundation of our Government a source of 
internal disquiet, increasing year by year until it culminated in a most bitter and dev¬ 
astating civil war. The result of that war was the emancipation and enfranchisement 
of four millions of people, who thus passed rapidly from a state of bondage to the pos¬ 
session of all the civil and political rights of citizens of the United States. It was im¬ 
possible that so large a body of people should be suffered to remain exposed to the assaults 
of the prejudice naturally growing out of their former condition without securing to them 
through Congressional legislation a free and perfect use of the vote which the fifteenth 
amendment gave to them as a shield and a sword of protection for their persons, their 
liberties, and their property. 

“ Congress has legislated and given us the acts referred to as the means most appro¬ 
priate for effecting the object proposed. These acts have been highly eulogized by the 
solicitors on both sides, and they seem to me to be most wise and in the highest sense 
appropriate. It is to be remarked that the fifteenth amendment is most broad in its 
comprehensiveness. Though called into existence in order to protect the freedman, it 
protects as well all other citizens, both native and foreign. It would protect the for¬ 
eigner who had become a citizen should another Know-Nothing excitement agitate the 
nation, and it would protect the native-born should the foreign-bom citizen ever gain in 
any State or locality an ascendency and attempt to use that ascendency oppressively. 
The same may be said of the acts of Congress to give practical effect to the amendment. 
The provision of the Constitution that no State shall pass a law impairing the obliga¬ 
tions of contracts needed no legislation to enforce it beyond giving the right of review 
in the Supreme Court of the United States to the party feeling himself aggrieved; but in 
the case of the fifteenth amendment the helplessness of the party to be protected ren¬ 
dered a larger and peculiar jurisdiction necessary. 

“Congress, then, in the acts under consideration, threw around all classes of citizens 
these effective laws and secured obedience thereto—first, by criminal punishment; sec¬ 
ond, by clothing the candidate of the voter with the right to prevent or redress the 
wrong attempted or perpetrated upon the vote by an appropriate civil action. Now, 
what are the grievances set forth in this case? What are the allegations made in the 
bill? They are that 10,000 citizens of this State have been on account of race, color, 
and previous condition deprived of registration, and after due proffer of the right to 
vote; and that that 10,000 votes which were in fact cast for the complainant for the 
office of governor have been or are about to be suppressed by an illegally constituted 
board of returning officers; and that without the interference of this court these votes, 
both those refused and those cast, which ought to be counted for the complainant, will 
l>e lost to him, and that thereby he will be defeated for said office. 


496 


SENATE ELECTION CASES. 


“The allegations are supported by upward of four thousand affidavits of the actual 
voters. The chief defendant, namely, H. C. Warmoth, meets this weight of testimony 
solely by his answer and affidavit; and certain acts done by him since the canvass com¬ 
menced force upon my mind the belief that his defense rests upon no solid foundation. 
The further allegation is made that the board of canvassers legally constituted are de¬ 
prived by this respondent of the proper returns with the view to deprive the citizens of 
the right to vote. In other words, that the respondent has prevented a fair canvass of 
the votes by impeding the legal board and setting up an illegal board. This leads me 
to consider the facts with reference to these two boards. 

“By an«act of the State legislature of March 16,1870, the board of returning officers 
was made to consist of the governor, lieutenant-governor, secretary of state, Mr. Lynch, 
and Mr. Anderson. The lieutenant-governor and Mr. Anderson being disqualified on 
account of having been candidates, the governor, Lynch, and Herron, as a majority of 
the board, met to fill vacancies. The governor attempted to remove Herron, who was 
certainly de facto secretary of state, who seems to have some sort of judgment in his 
favor against Bovee, the elected secretary of state, who has for a long period attested all 
the statutes of the State, and who, without going into his title to the office as against 
Bovee, was the de facto officer clothed with sufficient authority to act as one of the board. 
The attempt to remove Herron I dismiss with the remark that if all the governor alleges 
against him had been true, it could have been established only by judicial inquiry, and 
gave the governor no right to displace him. Herron and Lynch by a majority vote filled 
the vacancies by electing Hawkins and General Longstreet, and these four, together 
with the governor, are clearly the legal board of returning officers. Wharton’s vote 
goes for nothing, as he never had any legal status in the board, and with him necessarily 
fhll out Da Ponte and Hatch. Thus it appears that the board which we will call the 
Herron board, in contradistinction to the Wharton board, is the board wb>ch this court 
feels bound to recognize as having been the legal board at the time this suit was com¬ 
menced. And this brings me to inquire as to the effect of the approval by the governor 
of the act of November 20, 1872. The only question before me at this stage of the case 
connected with the effect of that approval is, did it change in any way the legal status 
of the Herron board? The act contained a repealing clause, and since it covered the 
whole subject of the election, and the election cannot be said to be complete until the 
final counting is concluded, I was at first startled by what seemed to me to be the log¬ 
ical inference of some of the authorities cited by the learned solicitors of the respondents, 
that if the act of 1870 was at that time repealed it might vitiate the whole election. 
But it is not necessary for me to pass upon the question, for giving the act of November 
20 all the force of law, still the Herron returning board must continue to discharge 
their duties until their successors are inducted into office. Article 122 of the State con¬ 
stitution of 1868 reads thus: 

“‘Art. 122. All officers shall continue to discharge the duties of their offices until 
their successors shall have been inducted into office, except in cases of impeachment or 
suspension. ’ 

‘ ‘ Indeed, the Herron board must finish the canvass of the votes, or a new legislature 
cannot be legally organized so as to create a board of canvassers in accordance with sec¬ 
tions 2 and 44 of the law of the 20th of November, 1872. 

‘ ‘ ‘ Sec. 2. Be it further enacted , &c ., That five persons, to be elected by the senate from 
all political parties, shall be the returning officers for all elections in the State, a major¬ 
ity of whom shall constitute a quorum, and have power to make the returns of all elec¬ 
tions. In case of any vacancy by death, resignation, or otherwise, by either of the board, 
then the vacancy shall be filled by the residue of the board of returning officers. The 
returning officers shall, after each election, before entering on their duties, take and sub¬ 
scribe to the following oath before a judge of the supreme or any district court: 

‘“I, A. B., do solemnly swear (or affirm) that I will faithfully and diligently perform 
the duties of a returning officer as prescribed by law; that I will carefully and honestly 
canvass and compile the statements of the votes, and make a true and correct return of 
the election: So help me God.’ 

“ ‘ Within ten days after the closing of the election said returning officers shall meet 
in New Orleans to canvass and compile the statement of votes made by the commission¬ 
ers of election, and make returns of the election to the secretary of state. They shall 
continue in session until such returns have been compiled. The presiding officer shall 
at such meeting open, in the presence of the said returning officers, the statement of the 
commissioners of election, and the said returning officers shall, from said statements, can¬ 
vass and compile the returns of the election in duplicate; one copy of such returns they 
shall file in the office of the secretary of state, and of one copy they shall make public 
proclamation by printing in the official journal and such other newspapers as they may 
deem proper, declaring the names of all persons and officers voted for, the number of 
votes for each person, and the names of the persons who have been duly and lawfully 
elected. The return of the election thus made and promulgated shall be prima facie 


THE LOUISIANA CASES, 1873-80. 


437 


evidence in all courts of justice and before all civil officers until set aside after a contest, 
according to law, of the right of any person named therein to hold and exercise the office 
to which lie shall by such return be declared elected. The governor shall, within thirty 
days thereatter, issue commissions to all officers thus declared elected, who are required 
by law to be commissioned. 

‘“Sec. 44. Be it farther enacted, &c ., That it shall be the duty of the secretary of 
state to transmit to the clerk of the house of representatives and the secretary of the sen¬ 
ate of the last general assembly a list of the names of such persons as, according to the 
returns, shall have been elected to either branch of the general assembly; and it shall be 
the duty of the said clerk and secretary to place the names of the representatives and 
senators elect so furnished upon the roll of the house and of the senate, respectively; 
and those representatives and senators whose names are so placed by the clerk and secre¬ 
tary, respectively in accordance with the foregoing provisions, and none other, shall be 
competent to organize the house of representatives or senate. Nothing in this act shall 
be construed to conflict with article 34 of the constitution of the State. ’ 

‘ 1 1 see, therefore, no way of avoiding the conclusion that, in any view of the case, the 
Herron board of returning officers are still authorized to continue their duties, and are 
still entitled to the protection of the court. 

“Thecourt keeps within the acts of Congress and the fifteenth amendment. It does 
not pretend in any way to make a governor of the State, or in any degree to interfere with 
the voice of the people expressed through the ballot-box. What it does is to aid in mak¬ 
ing known the voice of the people, in accordance with sections 3 and 23 of the act of 
Congress, and with section 15 of the amendment thereto, and in its action is only a 
clearly needed adjunct of the legal returning board. Many propositions were discussed 
during the argument which it is not necessary for me to now pass upon. It is enough 
that I find the statute constitution; that the court has j urisdiction, and that the board 
of returning officers, composed of H. C. Warmoth and Messrs. Hawkins, Lynch, Long- 
street, and Herron, are the legal board, and as such entitled to the protection of this 
court. 

“As to the question of the ineligibility of the complainant in the bill to the office of 
governor, this question cannot arise under the bill, and could only come before this court 
in a direct action at law to test the title to the office. It is not, therefore, necessary or 
proper for me to decide it now; but were it otherwise, I would say that the reason of 
the thing seems to favor his eligibility, the object of the provision of the constitution 
being to prevent a man serving two masters and having a divided allegiance. And the 
fact that, contemporaneously with the adoption of the constitution which first contained 
this provision, the then Territorial governor was by the then constitutional convention 
made governor of the State provisionally, and at the ensuing election made by the peo¬ 
ple the first governor of the State, would seem to indicate that the meaning of the inhi¬ 
bition was understood to be as I above stated. 

“It only remains for me now to make the following order: 

“Circuit court of the United States, district of Louisiana, in equity. 


“William Pitt Kellogg, complainant, 


vs. 

“Henry C. Warmoth,. Jack Wharton, Frank H. - 
Hatch, Durant Da Ponte, and John McEnery, and the 
New Orleans Republican Printing Company, defendants. _ 


No. 


6830.—Order entered 
December 6, 1872. 


“This cause having come on for hearing on the complainant’s motion for writs of in¬ 
junction pendente lite, and for other interlocutory orders prayed for in complainant’s bill 
and amended bill of complaint, and the court having considered the pleadings, affidavits, 
and exhibits filed in the cause, and having heard counsel as well for the complainant as 
for said defendants, and the court having considered the premises, 

“ It is ordered— 

“That the said defendant, Henry C. Warmoth, during the pendency of this cause, be, 
and he hereby is, until the further order of this court, enjoined, inhibited, and restrained 
from in any manner, either directly or indirectly, considering, or pretending to consider 
or canvass, any statement, certificate, or return of any supervisor or assistant supervisor 
of registration, or any office, having any duties to perform about or concerning an elec¬ 
tion held on the 4th day of November, A. D. 1872, in the Stat£ of Louisiana, or relat¬ 
ing to any votes or ballots cast at said election, except in the presence of John Lynch, 
Jacob Hawkins, James Longstreet, and George E. Bovee, a board of returning officers 
for said election; and that he do further desist and refrain from submitting, or allowing 
to be submitted, or from aiding or assisting in the submission to the defendants, Frank 
Hatch, Jack Wharton, Durant Da Ponte, or any other person or persons whatsoever, 
other than the said Hawkins, Bovee, Lynch, and Longstreet, any paper, document, affi¬ 
davit, statement of votes, return of officers of election, or other proof in any manner 

S. Doc. 11-32 




498 


SENATE ELECTION CASES. 


relating to said election, and from allowing any other person or persons whatsoever, other 
than those in this order excepted, whether pretending to act as returning officers, or in 
any other capacity, to inspect, consider, have access to, canvass, or tamper with any paper, 
document, affidavit, statement of votes, returns or written proof relating to said election 
or to the fairness and correctness thereof, that may have heretofore or may hereafter come 
into his hands or possession, and which, by law, should properly be laid before, submit¬ 
ted to, or considered by such returning officers of election in making a canvass thereof. 
And that the said defendant, H. C. Warmoth, be further enjoined and inhibited from 
altering, suppressing, mutilating, destroying, or secreting any such document, proof, or 
paper. And that he further desist and be enjoined from in any manner interfering with, 
obstructing, or hindering the said Lynch, Longstreet, Bovee, and Hawkins, or either of 
them, from full and complete access to, as well as custody of, all such documents, papers, 
and proofs relating to said election, as he may or shall have in his possession, custody, or 
control, or as they shall or may demand, either byrefusing to deliver such documents or 
proofs to them, or either of them, or by any suit or proceeding instituted with the intent to 
hinder, delay, or obstruct them in the performance of their duty as returning officers. And 
that he be further restrained and enjoined from issuing commissions to any persons based 
upon any calculation, deduction, or pretended canvass of ballots cast at said election, or 
make, publish, sign, or deposit in the office of the secretary of state, or in any other public 
office, or cause to be so deposited, any document, statement of persons elected to any offices 
or positions of trust at said election, and from giving any effect to the same if already filed 
and deposited, unless the same be with the concurrent action and lawfully given consent 
of the said Lynch, Hawkins, Bovee, and Longstreet, or a majority thereof, or of a sufficient 
number of them to constitute a majority of a board of returning officers, acting as such 
returning officers. 

“And it is further ordered that the said defendants, Jack Wharton, Frank H. Hatch, 
Durant Da Ponte, and the New Orleans Republican Printing Company, until the final 
hearing of this cause, or until the further order of the court, be severally and respect¬ 
ively enjoined and restrained to the same extent, effect, and manner as said complainant 
has in his said bill of complaint prayed they may severally and respectively be restrained. 
And that writs of injfmction in due form of law issue against the said defendants, in 
accordance with the terms of this order. And that the returning order heretofore issued 
and allowed in this cause continue in full force and effect until the court shall otherwise 
order. 

“And in order that the evidence relating to said election maybe perpetuated and pre¬ 
served, that it may be of avail upon the hearing of this cause, and in any cause which the 
said complainant may hereafter be compelled to institute and prosecute to test or deter¬ 
mine his right to the office of governor of said State, and in order that public inconven¬ 
ience may not result therefrom, it is further ordered that the said Henry C. Warmoth 
do forthwith and without delay deliver unto the said returning officers, John Lynch, 
George E. Bovee, Jacob Hawkins, and James Longstreet, each and every paper, docu¬ 
ment, affidavit, tally-sheet, list, sworn statement, certificate, letter, communication, or 
proof which he has or may have in his possession, or which may hereafter come into his 
possession from any supervisor or assistant supervisor of registration or election, or any 
officer or person, commissioner or commissioners, in any manner concerned in the con¬ 
duct, control, management, or direction of said election, held on the 4th day of Novem¬ 
ber, A. D. 1872, in any manner relating to said election, or any voting or ballots cast at 
said election or in any manner relating thereto, in order that they may consider, canvass, 
and make due return thereof, as required by law; and when the same are no longer re¬ 
quired for the purpose of said canvass, it is ordered that the said defendant, H. C. War¬ 
moth, do thereafter immediately file and deposit the same with the clerk of this court, 
there to remain until true, accurate, and complete attested copies thereof be made by 
the clerk, subject to the direction of the court. 


“ Injunction.—Issued December 6, 1872. 


“William Pitt Kellogg 
vs. 

“ Henry C. Warmoth, Jack Wharton, Frank H. 
Hatch, Durant Da Ponte, John McEnery, and the 
New Orleans Republican Printing Company. 


No. 6830. 


“Circuit court of the United States, fifth circuit and district of Louisiana 
11 The President of the United States , greeting: 

“Whereas it has been represented to us in our said circuit court on the part of William 
P. Kellogg, by his bill of complaint lately exhibited against you and each of you, touch¬ 
ing certain matters and things therein set forth: 

“Now, therefore, in consideration of the premises and of the allegations in said bill 



THE LOUISIANA CASES, 1873-80. 499 

contained, yon, the said above-named defendants, your attorneys and each of you, are 
hereby commanded and strictly enjoined under the penalty of the law that you abso¬ 
lutely retrain and desist during the pendency of this cause, until the further order of 
this court, from in any manner, either directly or indirectly, considering or pretending 
to consider or canvass any statement, certificate, or return of any supervisor or assistant 
supervisor of registration, or any officer having any duties to perform about or concern¬ 
ing an election held on the 4th day of November, 1872, in the State of Louisiana, or re¬ 
lating to any votes or ballots cast at said election, except in the presence of John Lynch, 
Jacob Hawkins, James Longstreet, and George E. Bovee, a board of returning officers 
for said election, or from submitting or allowing to be submitted, or from aiding or 
assisting in the submission to the said defendants, Frank H. Hatch, Jack Wharton, Durant 
Da Ponte, or any other person or persons whatsoever other than the said Hawkins, Bovee, 
Lynch, and Longstreet, any paper, document, affidavit, statement of votes, return of offi¬ 
cers of election, or other proof in any manner relating to said election, and from allowing 
any other person or persons whatsoever other than those in this order excepted, whether 
pretending to act as returning officers, or in any other capacity, to inspect, consider, have 
access to, canvass, or tamper with any paper, document, affidavit, statement of votes, re¬ 
turn, or written proof relating to said election, or to the fairness and correctness thereof, 
that may have heretofore or may hereafter come into his hands or possession, and which 
by law should properly be laid before, submitted to, or considered by such returning 
officers of election in making a canvass thereof; and that the said defendant, H. C. War- 
moth, be further enjoined and inhibited from altering, suppressing, mutilating, destroy¬ 
ing, or secreting any such document, proof, or paper. 

“And that he further desist and be enjoined from in any manner interfering with, 
obstructing, or hindering the said Lynch, Longstreet, Bovee, and Hawkins, or either of 
them, from full and complete access to, as well as custody of, such documents, proof, or 
paper. 

“And that he further desist and be enjoined from in any manner interfering with, 
obstructing, or hindering the said Lynch, Longstreet, Bovee, and Hawkins, or either of 
them, from full and complete access to, as well as custody of, such documents, papers, 
and proofs relating to said election as he may or shall have in his possession, custody, or 
control, or as they shall or may demand, either by refusing to deliver such documents 
or proofs to them, or either of them, or by any suit or proceeding instituted with the 
intent to hinder, delay, or obstruct them in the performance of their duty as returning 
officers; and that he be further restrained and enjoined from issuing any commissions to 
any persons based upon any calculation, deduction, or pretended canvass of ballots cast 
at said election, or make, publish, sign, or deposit in the office'of the secretary of state 
or in any other public office, or cause to be so deposited, any document, statement of 
persons elected to any offices or positions of trust at said election, and from giving any 
effect to the same, if already filed and deposited, unless the same be with the concurrent 
action and lawfully-given consent of the said Lynch, Hawkins, Bovee, and Longstreet, 
or a majority thereof, or of a sufficient number of them to constitute a majority of a 
board of returning officers. 

“And it is further ordered that the said defendants, Jack Wharton, Frank H. Hatch, 
Durant Da Ponte, and the New Orleans Republican Printing Company, until the final 
hearing of this cause, or until the further order of the court, be severally and respectively 
enjoined and restrained to the same extent, effect, and manner as said complainant has 
in his bill of complaint prayed they may severally and respectively be restrained. 

“And that writs of injunction in due form of law issue against the said defendants in 
accordance with the terms of this order. 

‘ c And that the restraining order heretofore issued and allowed in this cause continue 
in full force and effect until the court shall otherwise order. 

“Witness the Honorable Salmon P. Chase, Chief Justice of the Supreme Court of the 
United States, at the city of New Orleans, this 6th day of December, in the year of our 
Lord 1872. 

“[seal.] F. A. WOOLFLEY, Clerk. 

“ Marshal's return. 

“Received December 7, 1872, by the United States marshal, and on the same day, 
month, and year served the within-named persons with a copy of this injunction, as fol¬ 
lows: On H. C. Warmoth, by handing the same to him in person at the Saint Charles 
Hotel, in this city; Jack Wharton, same day, month, and year, served the within injunc¬ 
tion by handing the same to him in person at the Saint Charles Hotel, in this city; on 
Durant Da Ponte, same day, month, and year, by handing the same to him in person in 
this city; on Frank H. Hatch, same day, month, and year, by handing the same to him 
in person in this city; on the New Orleans Republican, December 9, 1872, by handing 
the same to W. R. Fish, president of said paper. 

“C. R. STEELE, 

“ Deputy United States Marshal. ’ ’ 


500 


SENATE ELECTION CASES. 


It is somewhat remarkable that in this opinion the judge makes no allusion to the fact 
that the State-house was then in possession of Federal troops, under an order issued by 
him, out of court, the night before. The opinion materially misstates the allegations of 
the bill, and wholly ignores the fact that, under the act of November 20, the governor 
had appointed a new canvassing board which had in fact canvassed the votes; of all which 
he was aware, because the proclamation of the governor officially promulgating these 
facts was embodied in the order for seizing the State-house, made by the judge the night 
before. The judge also declares that about four thousand affidavits sustain the aver¬ 
ments of the bill. 

Your committee have examined many of these affidavits, and it is admitted that none 
of them contain the statement that right of registration or right of voting was denied on 
account of race, color, or previous condition of servitude. 

But in this opinion he disposes of the act of November 20 in a remarkable way. He 
seems to admit its validity, but seems also determined that it shall not take effect at an 
inconveniently early date. He admits that it repealed all former election laws, and cov¬ 
ered the whole subject of elections; but from this he draws two singular conclusions: 
First, that inasmuch as the act of November 20 repealed all former election laws, all 
that had been done under such repealed laws was void; and second, to avoid this diffi¬ 
culty, which he says at first startled him, that it was his duty to continue the old laws 
in force until the old boards could have a reasonable opportunity to complete all the 
business before them. 

One of two things is certain: The governor’s approval of the new election law on the 
20th of November gave it effect on that day, or it did not. Assuming that the approval 
on that day was regular, the new law absolutely repealed all the law T s under which the 
Warmoth board and the Lynch board were pretending to act, and, of course, abolished 
both boards without regard to the question which was the legal one. All that had been 
done in the election of November, 1872, in pursuance of the old laws—that is, the regis¬ 
tration, voting, and returns—was as valid after the act of November 20 as before. If 
the canvass had been made by the proper board under the old law, and in all things 
completed, the rights of parties based upon that canvass would not have been affected 
by the repeal of the laws. But the act of November 20, taking effect after the returns 
were made, and before they were canvassed, transferred the duty of canvassing to the 
new board created by the act. 

Congress, a year or two ago, passed an act creating a new judicial district in the State of 
Wisconsin, carved out of the territory of the then existing district. When the President 
signed the bill, the circuit court for the old district was in session, and in the midst of a 
jury-trial, in that part of the State which the act erected into a new district. What 
would have been said if the court had determined not to regard the act of Congress until 
that trial could be completed? The court stopped, and the trial fell. Acts have fre¬ 
quently been passed abolishing courts. It never was pretended that the abolished court 
could proceed and dispose of pending causes. If the act abolishing a court transfers its 
jurisdiction to another court, or creates a new court in its stead, the new court assumes 
jurisdiction and proceeds with the causes, and orders and injunctions granted by the old 
court are valid in the new. 

A few years since, on admitting one of the new States, by which the Territorial courts 
were abolished, Congress, by inadvertence, omitted to provide for pending causes in those 
courts; and, after a suspension of jurisdiction for a year or more, Congress passed an act 
transferring those causes which were of Federal cognizance to the courts of the Union, 
and the Supreme Court held it valid. 

In the opinion of your committee there can be no doubt—conceding the validity of 
the act of November 20—that it transferred the duty of canvassing the returns of the last 
election to the board to be elected under the provisions of the act. The act provided for 
such election by the senate, and, taking effect in the vacation of the legislature, created 
offices to be filled thereafter by the senate. This is what is styled in that State an origi¬ 
nal vacancy, which, happening in the vacation of the legislature, the governor is author¬ 
ized to fill by appointment; and it is said that the courts of that State have repeatedly 
recognized the right of the governor to make such appointments. 

Viewed in any light in which your committee can consider them, the orders and in¬ 
junctions made and granted by Judge Durell in this cause are most reprehensible, erro¬ 
neous in point of law, and are wholly void for want of jurisdiction; and your committee 
must express their sorrow and humiliation that a judge of the United States should have 
proceeded in such flagrant disregard of his duty, and have so far overstepped the limits 
of Federal jurisdiction. 

After the foregoing decision was made by Judge Durell, Armstead filed a bill in the 
eighth district court against the members of the Lynch board, and obtained an injunction 
commanding them to make no canvass of the November election, except upon the re¬ 
turns made in pursuance of law. This injunction in no way conflicted with the decision 


501 


THE LOUISIANA CASES, 1873-80. 

of Judge Durell; for, conceding Lynch that the hoard was, notwithstanding the repeal 
of the law creating it, a valid board, it cannot be doubted that the courts of the State 
might restrain that board from canvassing any but the legal returns of the election. 

A writ of certiorari was issued by the Federal court in this case, which was disregarded 
by the State court.. No subsequent proceedings were had in the Federal court upoh 
said writ, and the injunction remains in full force. 

On the 6th of December, 1872, the Lynch board—Bovee (who was then acting as secre¬ 
tary of state in place of Herron), Lynch, Longstreet, and Hawkins—pretended to have 
canvassed the returns of the election, and certified to the secretary of state that Kellogg 
had been elected governor; Antoine, lieutenant-governor; Clinton, auditor; Field, attor¬ 
ney-general; Brown, superintendent of education, and Deslondes, secretary of state; and 
also certified a list ol persons whom they had determined to be elected to the legislature. 

There is nothing in all the comedy of blunders and frauds under consideration more 
indefensible than the pretended canvass of this board. 

The following are some of the objections to the validity of their proceedings: 

1. The board had been abolished by the act of November 20. 

2. The board was under valid and existing injunctions restraining it from acting at all, 
and an injunction in the Armstead case restraining it from making any canvass not 
based upon the official returns of the election. 

3. Conceding the board was in existence, and had full authority to canvass the returns, 
it had no returns to canvass. 

The returns from the parishes had been made, under the law of 1870, to the governor, 
and not one of them was before the Lynch board. 

It was testified before your committee by Mr. Bovee himself, who participated in this 
canvass by the Lynch board, that they were determined to have a republican legisla¬ 
ture, and made their canvass to that end. The testimony abundantly establishes the 
fraudulent character of their canvass. In some cases they had what were supposed to 
be copies of the original returns, in other cases they had nothing but newspaper state¬ 
ments, and in other cases, where they had nothing whatever to act upon, they made an 
estimate based upon their knowledge of the political complexion of the parish, of what 
the vote ought to have been. They also counted a large number of affidavits purporting 
to be sworn to by voters who had been wrongfully denied registration or the right to 
vote, many of which affidavits they must have known to be forgeries. It was testified 
by one witness that he forged over a thousand affidavits, and delivered them to the Lynch 
board while it was in session. It is quite unnecessary to waste time in considering this 
part of the case, for no person can examine the testimony ever so cursorily without see¬ 
ing that this pretended canvass had no semblance of integrity. 

But it has been claimed before your committee that a decision of the supreme court of 
Louisiana, rendered since this investigation commenced, has determined that the Lynch 
board was the legal returning board at the time it pretended to canvass the votes; and 
it is urged that a wholesome regard for the rights of the State precludes the Senate from 
investigating this subject back of that decision; that the canvassers were a board of 
officers created by the State law, and that the decision of the supreme court having 
determined that the Lynch board was the legal board the United States is esstopped by 
that decision, and the canvass made by the board. To this there are three answers: 

First. The supreme court, in the case referred to, is understood not to have had any 
testimony before it showing the character of the proceedings by the Lynch board, which 
testimony is before your committee very fully. Fraud vitiates everything, and it is cer¬ 
tain that no court, upon the testimony before your committee, could hold the canvass by 
that board to be valid. 

Second. In the opinion of your committee the supreme court had no jurisdiction of the 
case in which they made the decision. The judgments of every court, the most exalted 
in character, are absolutely void if rendered without jurisdiction. But this point will 
be considered more fully hereafter. 

Third. But for the interference of Judge Durell in the matter of this State election, a 
matter wholly beyond his jurisdiction, the McEnery government would to-day have 
been the de facto government of the State. Judge Durell interposed the Army of the 
United States between the people of Louisiana and the only government which has the 
semblance of regularity, and the result of this has been to establish the Kellogg govern¬ 
ment, so far as that State now has any government. For the United States to interfere 
in a State election, and, by the employment of troops, set up a governor and legisla¬ 
ture without a shadow of right, and then to refuse redress of the wrong, upon the ground 
that to grant relief would be interfering with the rights of the State, is a proposition 
difficult to utter with a grave countenance. Besides, it is impossible to determine to 
what extent the supreme court may have been influenced in rendering this decision by 
the fact that the Kellogg government, the creation of the Lynch board, had already been 
established, and the expectation that it would be sustained by Federal authority. 


502 . 


SENATE ELECTION CASES. 


But so much stress is laid upon this decision of the supreme court that it merits a more 
particular notice, and we shall examine it with a view to determine whether the court 
had jurisdiction. It is said that the supreme court of a State is the sole judge of its 
jurisdiction under State laws, and that the supreme court here expressly decided that it 
had jurisdiction of this cause. Every judgment implies an assertion of jurisdiction, but 
it is well settled that no judgment of any court has validity when it is shown that it was 
rendered without jurisdiction. The Constitution of the United States declares that in 
each State full faith and credit shall he given to the records and judicial proceedings of 
every other State. And yet it is well settled that when the record of a judgment ren¬ 
dered by the court of another State is produced, inquiry may be made as to the jurisdic¬ 
tion of the court to render such judgment, and that, too, although the court rendering 
the judgment may have expressly asserted its jurisdiction. Whoever presents the record 
of any judicial proceeding, and claims for it conclusive effect, asserts that the court had 
jurisdiction, and if it can be shown that such jurisdiction did not exist the paper is no 
record. 

Now, to examine the decision in question with reference to jurisdiction: 

The suit was commenced in the eighth district court of New Orleans, by the Lynch 
board against the Warmoth board, on the 14th of November, 1872, under the “intrusion 
act,” for the purpose of determining which was the legal board. This suit was anal¬ 
ogous to a proceeding by quo warranto at the common law. The only question involved— 
the entire subject-matter of the suit—was whether Lynch and the other members of that 
board, or Warmoth and the other members of his board, were authorized to act as State 
canvassers. The plaintiffs averred themselves to be the legal members of the board, and 
that the defendants had intruded into their offices. This was the only question that could 
be settled by that proceeding. 

On the 19th November the court decided in favor of the plaintiffs, the Lynch board. 
On the 21st November motion for new trial was made, and was set for hearing on the 
25th November. The hearing of the motion was on that day postponed, and was finally 
had, and the motion granted on the 3d of December; and the suit was dismissed upon the 
ground that the act of November 20 repealed all former election laws, and abolished the 
office. 

By the constitution, article 74, the appellate power of the supreme court extends only 
to cases ‘ ‘ where the matter in dispute shall exceed $500. ’ 1 

It is well settled by adjudications that where an office is in dispute the amount in¬ 
volved is determined by the amount of salary attached to the office. In this case the 
board had no salary. Therefore the Lynch board could not appeal from the judgment 
dismissing the suit. 

On the 19th day of December, A. P. Field, a stranger to the cause, presented his peti¬ 
tion for intervention and appeal. 

His petition states that he was elected attorney-general at the November election, 1872, 
and that it had been so declared by the Lynch board, and that he had been duly com¬ 
missioned; that he was interested in this case, for that the plaintiffs were legal returning 
officers, and had returned that he had been duly elected; and that the judgment in said 
case, against the plaintiffs therein, 1 ‘jeopardizes the position of your petitioner in his said 
office, whereby your petitioner has an interest in having such judgment reversed and set 
aside;” and that he had an interest in this case exceeding $500, the salary of attorney- 
general being $5,000 per annum. The petitioner prayed an appeal to the supreme court, 
which was granted. 

In the opinion of the majority of the supreme court it is attempted to be shown that 
the Lynch board might have appealed from the judgment dismissing their suit, upon the 
ground that, although it did not involve the amount of $500, pecuniary interest, it was 
very important to the people of the State. The theory that, although a case involves no 
pecuniary amount, it may, from its magnificence or public importance, be cognizable by 
a court whose jurisdiction is, by the constitution, limited to cases involving $500, is new 
to your committee; but, conceding its correctness, its materiality is not perceived, be¬ 
cause the Lynch board did not appeal. 

We have carefully examined the opinions of the majority of the court, and the cases 
cited, and also the dissenting opinions of Judge Wyly and Judge Kennard, with the 
cases referred to by them. We are of opinion that the dissenting opinions of Wyly and 
Kennard declare the true principles of law applicable to this subject, and we adopt the 
opinion of Judge Wyly as a part of this report: 

Opinion of Judge Wyly. 

“State ex rel. Attorney-General et al. vs. Jack Wharton et al. Wyly, judge, dissent¬ 
ing. 

“ The judgment of a court without jurisdiction ratione materise is a nullity so absolute 


THE LOUISIANA CASES, 1873-80. 503' 

it need not be pronounced. The court will notice the want of jurisdiction ex proprio 
molu. 

It is well settled that an intervention is not allowable where the party seeking to 
intervene would have no separate cause of action against either or both of the litigants, 
or where he has no claim to the immediate object of the litigation. 

“ The immediate object of the litigation in the case before us is to determine the title 
to the offices of the returning board of election, under act No. 100 of the acts of 1870, 

The controversy is between the relators and the defendants for these offices. 

A. P. Field, who intervenes and brings up this appeal, does not claim the offices in 
dispute. He holds the office of attorney-general, and as neither the relators nor the de¬ 
fendants set up a claim to his office, or attempt in any manner to impede the adminis¬ 
tration thereof, he has no cause of action against either of them. 

He, therefore, has no right to intervene, because the law will not allow a party to 
thrust himself into a litigation he would be prohibited from instituting for himself. The 
object of interpleading is to abridge litigation, and avoid the multiplicity of suits. 
Having no cause of action against either of the litigants, and not claiming the offices in 
dispute, how can A. P. Field interplead, and, by appealing, protract a vexatious litiga¬ 
tion dropped by the original parties? 

“ Such pleading is not allowable in ordinary suits; but this is a proceeding under the 
intrusion act to determine whether the relators or the defendants are entitled to the 
offices of the returning board of election under the act of 1870. 

‘ ‘ The law provides that suits of this character must be brought in the name of the 
State, on the relation of the district attorney or the attorney-general, against the party 
accused of intruding into or unlawfully holding an office; that the name of the person 
claiming to be rightfully entitled to said office may be joined as plaintiff with the State; 
and that when the intrusion is made apparent the court may decide the defendant to be 
an intruder, eject him from office, and order that the person joined with the State as 
plaintiff may be inducted into office. (Acts of 1868, pages 71 and 199.) 

“No provision is made for an intervention in a suit of this kind, and in my opinion it 
is not allowable. If a controversy for a certain office be settled improperly under a 
proceeding of this character, and the person inducted into office is not entitled to it, as 
against a third party, who was not joined as plaintiff with the State, the rights of such 
party are in no manner impaired. He can by mandamus if necessary compel the dis¬ 
trict attorney or the attorney-general to institute in his behalf a proceeding in the name 
of the State, under the intrusion act, and have his title to the office established and the 
previously successful litigant ejected therefrom. After the time for contesting the elec¬ 
tion has passed, the only suit to establish title to office that can be brought is a suit under 
the intrusion act, and that, as before remarked, must be brought in the name of the 
State. The State, as before remarked by this court, must take the initiative; no one can 
litigate for office under that statute in his own name. And if a person cannot in his 
own name bring an action for the office he claims, how can he accomplish the same ob¬ 
ject by filing a petition of intervention in his own name, setting up his separate demand? 

‘ ‘As I understand the intrusion law, no one will be allowed to demand an office in 
this State in a proceeding in his own name, whether he pleads directly in a separate 
action or whether he interpleads in an action between other parties. Whenever he sees 
fit to set up his demand for an office the statutes to which I have referred prescribe the 
precise form or mode of procedure in which he must bring that demand in order that 
the court may decide the title to the office. 

“If the State under the intrusion law must be the prominent litigant, and no demand 
for office can be set up except in the name of the State, how can there be an interven¬ 
tion? Can this State intervene in her own suit? Can the State, suing for A, set up a 
separate demand in her own suit in behalf of B? Can the same party be both plaintiff 
and intervenor in the same suit ? Such a proposition to a legal mind is utterly absurd. 
But then, how are the rights of several persons claiming a particular office to be deter¬ 
mined without numerous suits, which the law abhors? The answer is plain and simple. 

“ It is found in section 9 of the intrusion law, being act No. 58 of the acts of 1868. It 
is in these words: ‘ That where several persons claim to be entitled to the same office or 
llanchise one action may be brought against all such persons in the same action, in order 
to try their respective rights to such office or franchise. ’ 

‘ ‘ Here, then, to simplify pleading and to settle conflicting titles to office, the State 
has enacted a law by which she can in her own name in one action sue all the claimants 
to the office in dispute, and in the same action ‘ try their respective rights to such office 
or franchise. ’ 

‘ ‘ From the very language of the law it is apparent that no interpleading was contem¬ 
plated by the lawgiver. And, indeed, under the statute it could not be done, because, 
as before observed, the State alone can bring the suit, and she cannot in the same action 
occupy two contradictory positions, that of plaintiff, the prominent litigant, and that ol 


504 


SENATE ELECTION CASES. 


intervenor, a third party, a stranger to the suit. Is it doubted that the State is the real 
litigant in suits under the intrusion law? I point to the State vs. Krieder, 21 An. , 482, 
and numerous other decisions wherein this court has so olten affirmed it, and I refer to 
the statute itself. 

“ It is well settled that in a contest for office the pecuniary interest involved is the 
amount of the salary. 

“In the suit before us there is no salary at all. Consequently, as between the orig¬ 
inal parties, the matter in dispute does not exceed $500, and this court is without juris- 
tion ratione materise. To ascertain the jurisdiction of the court it is idle to discuss 
general principles or to cite the adjudications of the Supreme Court of the United States, 
because it does not spring from such sources. The jurisdiction of this court is limited 
and defined in precise terms in the constitution of this State, the instrument creating it, 
and beyond these limitations we cannot go without usurpation. 

“This court has only appellate jurisdiction, ‘ which shall extend to all cases when the 
matter in dispute shall exceed $500. ’ * * * (Article 74, constitution of 1868.) 

‘ ‘ But the intervenor and appellant contends that as his salary of attorney-general is 
$5,000 he has a pecuniary interest in this litigation exceeding $500, and therefore the 
court as to him has jurisdiction. For argument let us assume that it is so. We then 
have no anomaly of a jurisdiction as to one litigant, and no jurisdiction as to the others, 
and positively no jurisdiction as to the offices in controversy, the immediate object in 
dispute, and of the litigation. 

“The matter in dispute between A and B, the very object of their litigation, has a 
pecuniary value less than $500; neither can appeal to this court for want of j urisdiction; 
the difficulty can be obviated; the judgment below can be reversed; all that is necessary 
is for a third party to aver that as he owns some other object worth $500 he has a pecu¬ 
niary interest in the controversy exceeding $500 and therefore can intervene and appeal. 
If the doctrine contended for be true, all the inferior courts of this State, including justices 
of the peace, may in the same manner be brought before this court for revision. Such 
a proposition is unreasonable and absurd. In my judgment the title to an office the 
salary of which is less than $500 canuot be determined by this court, for want of juris¬ 
diction ratione materise, it matters not who is the appellant, and it matters not how 
many affidavits are filed setting up a pecuniary interest exceeding the amount of the 
salary. A third party appealing from a j udgment must show a direct pecuniary inter¬ 
est in the subject-matter of the suit. (Attorney-general vs. Markey, Kaiser, 21 Ann., 
743; 1 N. S.,308; 4 N. S.,342; 2 K., 391.) The subject-matter of this suit is the title 
to the offices of the returning boards of election under act No. 100 of the acts of 1870, 
to which offices there is no salary. Therefore neither the original litigants nor the in¬ 
tervenor has a direct pecuniary interest in the subject-matter of this suit and therefore 
cannot appeal, because this court is without jurisdiction ratione materise. It is therefore 
my judgment that if an intervention in a case like this were allowable, and if a third party 
could intervene and appeal from a judgment not appealable by the original litigants, 
because the matter in dispute is less than $500, the intervenor, A. P. Field, has not 
shown a direct pecuniary interest in this suit sufficient to entitle him to the appeal or 
sufficient to give this court jurisdiction. 

“If he had been joined as plaintiff with the State in this suit, he could not appeal, 
because the subject-matter of the suit is less than $500. The argument, however, is 
urged that Field has a direct pecuniary interest in this case, because, as the time for con¬ 
testing elections has passed (more than ten days after the election having elapsed), he has 
no other way to vindicate his title to the office of attorney-general. That if the board 
by whom he was returned as elected was not the lawful returning board, then his title 
to the office has no basis upon which to rest. Consequently, his entire salary as attor¬ 
ney-general is involved in this controversy between the two returning boards. 

“The answer to this is twofold: First, the controversy between these returning boards 
in no way prevented him from instituting, within proper time, the usual proceedings to 
contest the election. Second, his title to the office of attorney-general cannot now be 
determined as against H. N. Ogden, his opponent at the election, because the latter is not 
a party to these proceedings. Besides, in a controversy for one office the title to another 
office (separate and distinct) cannot be determined. A proceeding under the “intrusion 
act” can only determine the title to the office in dispute, and no one can become a party 
to that proceeding who does not claim the immediate object of the litigation. If A. P. 
Field, who was returned as elected attorney-general, can intervene in this controversy, 
every candidate for-office at the late election, every person expecting an office if his party 
prevails, and every person incidentally or remotely interested in the settlement of the issue 
may intervene, and the rights of everybody, the titles to all the offices in the State, may at 
once be determined, notwithstanding the opponents of these various intervenors were not 
cited, and were not parties to the suit between these returning boards. An argument that 
leads to such monstrous absurdities ought not to be accepted by this court as correct. In 


505 


THE LOUISIANA CASES, 1873-80. 

State vs. Mason et al ., 149, 506, A., where parties not claiming the offices of mayor and 
councilmen of Carrollton contested the election of the defendants to said offices, this court 
said: ‘ It appears reasonable that no one but a person pretending to have a right to an 
office should be perniitted to test the right of the incumbent to that office.’ In Yoisin 
and others vs. Leche et al., 23 A., 25, a similar case, this doctrine was affirmed by this 
court, the identical language being adopted by Chief-Justice Ludeling, the organ of the 
court. In State ex rel. Sullivan et al. vs. Mount et al ., 21 A., 755, where the controversy was 
between two boards of school directors, and where Kendall, the secretary of one of the 
boards, appealed, claiming that as his salary was $1,800 he had a pecuniary interest in 
the controversy exceeding $500, this court held that ‘ in a controversy for office under the 
intrusion act ’ a third party, not holding or claiming the office in dispute, cannot appeal 
from the judgment of the court a qua. There the board that appointed Kendall secretary 
was unsuccessful in the controversy with the other board of school directors, and could 
not appeal because of the want of pecuniary interest (there being no salary allowed the 
school directors of the parish of Orleans). Kendall, the secretary, appealed, and contended 
that, unless his right to appeal was maintained, he would lose his office, affording him 
a salary of $1,800 per annum; that the very basis of his office rested upon the reversal 
of the judgment in the controversy between these two boards of school directors. The 
court held that as he did not claim the offices in dispute (the immediate object of the lit¬ 
igation), Kendall could not ‘appeal from the judgment of the court a qua .’ Here 
neither of the returning boards of election has appealed from the judgment in the con¬ 
troversy between them, because, having no salary, there is no pecuniary interest involved 
as between them. A. P. Field, claiming to be returned as attorney-general by one of 
these boards, whose suit under the ‘ intrusion act ’ was dismissed, has appealed, and he 
contends that unless that j udgment is reversed and the board which returned him as 
elected attorney-general is recognized by this court and declared the lawful board, his 
title to that office has no basis upon which to rest. The case presented by him is iden¬ 
tical in principle with that presented by Kendall, and should have the same solution. 
He is a third party, not claiming the offices in controversy, and cannot appeal from the 
judgment of the court a qua , 21 A., 735. The appellant cites the case of Byerly vs. 
Judge of the Eighth District Court, 23 A., 768, to show that a third party having an ap¬ 
pealable interest may appeal. That case is not like the one before the court. Byerly 
showed a direct pecuniary interest in the matter in dispute. 

“I deem it proper to remark, however, that there is a feature of that case that I do 
not approve of. I was not present at the hearing, and took no part in its decision. What¬ 
ever comfort it may give the appellant, however, is utterly annihilated in the subsequent 
final decision of that same case reported in 24 A., 115. 

“The case in 12 A., 48, cited to show that a third party may appeal, is wholly unlike 
the case before the court. There the property of a third party had been seized, and the 
appeal was from the judgment dissolving his injunction. It being a separate demand, 
C. P., 398, and the value of the property being sufficient to give this court jurisdiction, 
there was no error in maintaining the appeal. 

“ There are other grounds for dismissing the appeal, which I deem it unnecessary to 
notice, because, to my mind, the argument which I have endeavored to make fully 
maintains the exception of the defendants that A. P. Field has no right to take this ap¬ 
peal. 

‘ ‘ Believing that the case is not within the jurisdiction of the court and that the decree 
of a court without jurisdiction, ratione materise , is an absolute nullity, I hardly think it 
necessary to enter upon an elaborate discussion of the issues presented for adjudication 
upon the merits. I will state, however, some of the conclusions forced upon my mind 
from a careful consideration of these questions. 

“I believe the governor had the right to sign the new election law on the 20th of 
November, 1872; that it became operative from the moment of the signing, and that it 
entirely repealed the law creating the offices in controversy, to wit, act No. 100 of the 
acts of 1870. 

“That the governor has the right in this State to sign and approve laws after the 
session of the legislature has ended has often been decided by this court; indeed, I regard 
the jurisprudence settled on this point. But the appellant contends with some show of 
plausibility that when this act was signed (the 20th of November, 1872) the legislature 
that enacted the law had passed out of existence (the terms of most all the members of 
the general assembly having expired); that with the cessation of their terms ended all 
of their unfinished business, so that the governor could not complete by his approval and 
signature a statute after its authors had ceased to exist. 

“This argument is ingenious but unsound. The fallacy lies in supposing that the 
law-making power had ceased to exist. While our structure of government remains 
neither of the co-ordinate branches thereof can cease to exist, although the persons in¬ 
trusted by the people to administer them often discontinue to do so because of death, 
resignation, or the lapse of the terms for which these public functions were chosen. 


506 


SENATE ELECTION CASES. 


“ In this State the effect of a repealing law is not always a question of construction. 
When a repealing law like any other law * is clear and free from ambiguity, the letter of 
it is not to be disregarded under pretext of pursuing its spirit ’ (C. C., 13); 

“It is only when the law is dubious in its language that its meaning must be 
sought by construction (C. C., 16); 

“In my opinion the election law approved 20th November, 1872, entirely repealed 
the law of 1870. It devised a new and different way of canvassing the votes and mak¬ 
ing the returns, and it entirely abolished the offices involved in this controversy. How 
the incumbents of offices that have been abolished can pretend to hold over under arti¬ 
cle 122 of the constitution till their successors are inducted into office I cannot imagine. 

“How can there be an inducting of successors into offices that do not exist? 

“But great stress is laid on the case of Kreider, 21 A., 482, and it is insisted that the 
ruling in that case covers this one. I do not think so. The statute interpreted in that 
case differed very materially from the one now under examination. There the court 
held that the thirteenth section of the act of September 14, 1868, repealing the charter 
of Jefferson, approved March 8, 1867, did not abolish the office of the corporation. This 
clause only repealed the old charter in so far as its provisions were not incorporated in 
the new charter. 

‘ 1 The title of that act was ‘An act for revising and amending the charter of the city 
of Jefferson.’ 

‘ ‘ The title of the act only proposed to ‘ revise and amend ’ the charter. 

“Under cover of such a title the old act could not be abolished, and any clause to 
that effect would be repugnant to article 114 of the constitution requiring the objects of 
every statute to be expressed in the title thereof. In the Kreider case it was held that 
the ‘clause only repealed the old charter in so far as its provisions were not incorporated 
in the new charter. ’ 

“The provisions of that act did not abolish the offices of the corporation, but continued 
them. 

“In the statute before us the officers of returning boards in the old law are not carried 
over and incorporated in it. Therefore these offices are abolished under the authority ot 
Kreider’s case, which has been produced to show the reverse. 

“In my judgment the act approved 20th November, 1872, is not mere revisory legis¬ 
lation; but whether it is or not is of no consequence, because the offices claimed by the 
relators under the old law are abolished, if not directly at least by implication, because 
the continuing of said offices is not provided for in the new law, and it is inconsistent 
therewith. 

“The provision of act No. 100 of the acts of 1870, creating these offices and designat¬ 
ing the duties to be performed therein, is in conflict with the provisions of the act of 
20th November, 1872, and is therefore repealed. 

11 This was the view taken by this court in the analogous case of the State ex rel. Mar- 
tien vs. Lavigne (23 A., Ill); 

“Here, to my mind, another difficulty arises. What judicial effect can the decision 
have? What legal right shall we order to be executed? A. P. Field cannot be put into 
the offices in controversy, because he don’t claim them. 

“We cannot eject the defendants and induct into these offices the relators, because 
the plaintiffs have not appealed from the judgment dismissing their suit. (1 N. S., 308.) 
Besides, the defendants are not claiming the offices, but contend that they, as well as 
the plaintiffs, are not out of office by reason of the approval of the election law of 1872. 

“Furthermore, if the approval of said law is not valid the relators have nothing to 
contend for, having canvassed and made their returns. Notwithstanding the suit, they 
have exhausted the powers confided to them, and they are now functus officio —they are 
no longer excluded from office. There are other questiods which I deem it unnecessary 
to discuss. 

“With all due respect for the views of my learned associates, who compose the quorum 
deciding this case, I feel constrained to differ with them in the conclusion to which they 
have arrived, because I believe their decision is not in harmony with the analogies of 
our law, and the numerous adjudications of ourselves and our predecessors. I believe 
that it practically overrules many important principles and points of practice heretofore 
deemed settled, and that it is a new departure in the jurisprudence of our State. 

‘ ‘ For the reason stated, I feel constrained to dissent in this case. ’ ’ 

No man can be said to be aggrieved by a judgment unless he has some direct interest 
in it. A man may be aggrieved in the sense of being distressed or afflicted at the defeat 
of his neighbor or friend, or because he thinks the judgment will have injurious effects 
upon public interests. But before he can intervene and appeal he must show that some 
right of his is injuriously affected by the judgment. In a suit by quo warranto against 
a person who had been for years acting as a judge of a court it would hardly be main¬ 
tained that every person who had recovered a judgment while the defendant had been 


507 


THE LOUISIANA CASES, 1873-80. 

acting as judge could intervene and appeal from a judgment determining that the judge 
had wronglully exercised the office. One reason is that a judgment rendered by a de 
facto judge is as valid between the parties as if rendered by a judge de jure. And in 
this suit the supreme court, although they declare that Field was entitled to an appeal, 
make no decision in his favor; do not declare that he is entitled to the office of attorney- 
general, and could not, for his opponent was not before the court; but reverse the judg¬ 
ment below solely upon the ground that it was erroneous as to the Lynch hoard, who 
had not appealed. We therefore dismiss the further consideration of this decision of 
the supreme court of the State with the further remark that if the jurisdiction of the 
supreme court were conceded their decision would not be conclusive against the United 
States in an inquiry like this, to ascertain if the State has a government. 

We now proceed to consider another case pending before Judge Durell, in which, if 
possible, he has still more flagrantly transcended his jurisdiction. 

The act of Congress of May 31, 1870, 16 Stat. L., 146, sec 23, provides: 

“That whenever any person shall be defeated or deprived of his election to any office, 
except elector of President or Vice-President, Representative, or Delegate in Congress, 
or member of a State legislature, by reason of the denial to any citizen or citizens who 
shall offer to vote of the right to vote on account of race, color, or previous condition of 
servitude,” such person may have his action in the Federal court, &c. 

On the 7th day of December, 1872, C. C. Antoine, claiming that he had been elected 
lieutenant-governor at the election in November, 1872, filed his bill of complaint on the 
equity side of the circuit court of the United States for the district of Louisiana, against 
the Warmoth board—Warmoth, Wharton, Hatch, and Da Ponte—against the holding- 
over clerk of the house of representatives, and the holding-over secretary of the senate; 
and against Y. A. Woodward, assistant secretary of state; against Penn, claiming to be 
lieutenant-governor; and against Armstead, claiming to be secretary of state; against 
Blanchard, state registrar of voters; against the metropolitan police of the city of New 
Orleans; against all the persons determined by the board composed of De Feriet and 
others, appointed under the act of November 20, to have been elected senators and mem¬ 
bers of the house of representatives: and against the De Feriet board. 

This bill contained, in substance, the allegations contained in the Kellogg bill, though 
more in detail; and set forth that secret and confidential instructions were issued to the 
State supervisors of registration to exclude the supervisors appointed by the United States 
from the canvass of State and parish officers; and to permit no person to vote who had 
been denied registration, unless they knew that he had been so denied; and that War¬ 
moth manipulated the election so as to defeat the complainant; excluding the votes given 
by colored citizens from the count, &c.; the approval by the governor of the act of No¬ 
vember 20; the appointment of De Feriet and others, canvassers under the said act; that 
aid De Feriet board pretended to make a canvass, and that proclamation thereof was 
made, &c.; that by law it was the duty of the secretary of state to transmit to Yigers, 
clerk of the house, and Merritt, secretary of the senate, a list of the persons elected to 
the legislature; they being the only persons competent to organize the legislature; that 
Wharton, as secretary of state, had furnished to the secretary of the senate the list of 
persons declared by the De Feriet board to be elected, and that it was the intention of 
Merritt to organize the senate accordingly; and the same as to the house of representa¬ 
tives; and that the legislature, if so organized, would deprive the complainant of his 
rights, &c.; that Bovee is the lawful secretary of state, and Wharton has no right to said 
office; that the metropolitan police are acting in collusion and will aid the fraudulent 
purpose, &c. 

The bill prays injunction against Warmoth, restraining him from interfering with the 
organization of the legislature on the 9th day of January, 1873, or on any future day, &c.; 
and from aiding any person to a seat not certified by Bovee; and an injunction against 
the police from interfering, &c.; and against the members of the legislature certified by 
the De Feriet board; and against Merritt, secretary of the senate, restraining him from 
placing on the roll any name not certified by Bovee; same as to the house of representa¬ 
tives against Bovee, restraining the clerk from receiving any returns except from the 
Lynch board. 

The prayer for relief is as follows: 

“And may it also please your honors to order and adjudge that the said defendant, 
H. C. Warmoth, within a period of time to be fixed by your honors, do make and deposit 
in this honorable court, in the office of the clerk thereof, full, true, and exact sworn 
copies of each and every paper, document, affidavit, tally-sheet, list, sworn statement or 
certificate, or letter which he may have received, or may have come into his possession 
from any commissioner or commissioners, or any officer concerned in the control or man¬ 
agement of said election, or who had any duties to perform in connection therewith, and 
from all supervisors or assistant supervisors of election, in any manner relating to said 
election, in order that the same may be beyond the power ol destruction by the said 


508 


SENATE ELECTION CASES. 


defendant, Warmoth, and his said confederates, and in order that the same may be saved 
to your orator as evidence to enable him to establish his right to the office as aforesaid 
in any judicial proceedings which he may be compelled to institute in this court lo 
establish and vindicate the same, and that the same may be also preserved for use or 
proof in support of your orator’s bill in this behalf, and to establish his right to the 
relief by him herein and hereby prayed for; and that the said evidence, documents, &c., 
to be produced remain on tile in this court, in order that the same may be preserved as 
evidence in any action which your orator may be required to institute in this court to 
establish his right to said office.” 

The bill also contained prayer for process and for general relief. 

The court granted a rule to show cause, returnable on the 11th December, 1872, why 
injunctions pendente lite should not be allowed as prayed for, and granted restraining 
order in the mean time to the extent and effect prayed for in the bill; and for the pur¬ 
pose of explaining the extent and scope of the order directed the clerk to attach thereto 
a copy of the prayer for injunction, which order and copy attached are as follows: 

“Circuit court of the United States in and for the district of Louisiana, in equity. 

“C. C. Antoine ) 

vs. >- No. 6861. 

“H. C. Warmoth et al. ) 

“ Restraining order.—Issued December 7, 1872. 

“Whereas the plaintiff herein has this day filed and exhibited his bill of complaint 
against the said defendant, H. C. Warmoth, and the other defendants named in said bill 
of complaint, and has therein prayed that injunctions, pendente lite, issue against the 
defendants therein, and that a restraining order be also issued restraining the said de- 
„ fendants as prayed for in said bill from doing or permitting to be done the acts in said 
bill complained of: 

“Now, therefore, on motion of J. R. Beckwith and E. C. Billings, solicitors for com¬ 
plainant, it is ordered that the defendants named in said bill do show cause on the 11th 
day of December, 1872, why injunctions, pendente lite , should not be allowed as prayed 
for. It is further ordered that said defendants, each and every one of them, be, and are 
hereby, commanded and restrained to the extent and effect as in said bill of complaint 
prayed [the clerk will attach to this order a copy of the prayer for injunction as set forth 
in said bill of complaint] until the hearing and determination of said rule for injunction 
and until the further order of the court in the premises. 

“E. H. DURELL, Judge. 

“A true and correct copy of the original order on file in this cause. 

“F. A. WOOLFLEY, Clerk. 

“Wherefore your orator humbly prays that your honor will grant unto him all just 
and proper relief in the premises; that you will allow and grant unto him the most 
gracious writ of injunction issued under the seal of this honorable court, directed to the 
said defendant, Henry C. Warmoth, enjoining and restraining him from in any manner, 
directly or indirectly, by himself or through any other officer of the State, city, or parish, 
or through any other person, from controlling or attempting to control, interfering with, 
or attempting to interfere with, the organization of either branch of this general assembly 
of the State of Louisiana, called to assemble on the 9th day of December, A. D. 1872, 
or that may be called to assemble at any future day, and from directly or indirectly, 
either by himself or through any other person, preventing any person claiming to be a 
member of said general assembly from having full and free ingress and egress to and 
from the place, building, and room of that branch of said general assembly of which he 
may claim to be a member, or from issuing any written or oral order or instruction, re¬ 
quest, or direction, calculated or designed to directly or indirectly control or interfere 
with the organization of either of the branches of said general assembly, or calculated 
or designed to prevent any person from having free access thereto, who claims to be a 
member thereof, and from doing any act, or from giving any order, direction, or making 
any request which may directly or indirectly prevent or binder any person from being 
present and taking part in the organization of said senate, called to convene on the said 
9th day of December, or at any future day, who may be returned as a member thereof 
by the board of returning officers, composed of the said Henry C. Warmoth, George E. 
Bovee, James Longstreet, Jacob Hawkins, and John Lynch, and whose name slialf also 
be transmitted by the said George E. Bovee, secretary'of state, to Charles H. Merritt. 


509 


THE LOUISIANA CASES, 1873-80. 

the secretary of the senate of the last general assembly, and placed oy the said Merritt 
upon the roll of said senate, so to be convened, and from in any manner, directly or in¬ 
directly, aiding or abetting any person who is not so returned by said returning board 
as a member ol said senate, so to be convened, and whose name is not so transmitted as 
a member elected to said senate, and is not so placed upon the roll of said senate, from 
participating in the organization of said senate, and from doing any act, or from giving 
any order, direction, or making any request which may directly or indirectly prevent or 
hinder any person from being present and taking part in the organization of said house, 
called to convene on the said 9tli day of December, or that may be called to convene at 
any future day, who may be returned as a member thereof by the board of returning 
officers, composed of the said Henry C. Warmoth, George E. Bovee, James Longstreet, 
Jacob Hawkins, and John Lynch, and whose name shall also be transmitted by the said 
George E. Bovee, secretary of state, to William Yigers, the secretary of the house of the 
last general assembly, and placed by the said William Vigors upon the roll of said house 
so to be convened, and from in any manner directly or indirectly aiding or abetting any 
person who is not so returned by said returning board as a member of said house, so to 
be convened, and whose name is not so transmitted as a member elected to said house, 
and is not so placed upon the roll of said house, from participating in the organization 
of said house. 

“Except that the said Henry C. Warmoth is not hereby prohibited from participating 
in the canvass and return of the members elected to the said branches of said general 
assembly, so to be convened, provided he do the same in conjunction with and in the 
presence of said George E. Bovee, James Longstreet, Jacob Hawkins, and John Lynch, 
but not otherwise. And that he further be enjoined and restrained from in any manner 
obstructing or hindering the said William Vigers, clerk of the house of representatives, 
or the said secretary of the senate, Charles II. Merritt, in the free and unobstructed dis¬ 
charge of their duties, or in full and complete obedience to the orders of this court, and 
from suspending, removing them, or either of them, from office, or appointing or ordering, 
or abetting any other person or persons to perform any act which by law or the orders of 
this court devolves on eit her the said Vigers, Merritt, or upon George E. Bovee, secre¬ 
tary of state, and from recognizing any validity in any act done or performed by any other 
person or persons pretending to .act in the office or capacity of either of said officers. 

“And that a writ of injunction may also issue, directed to A. S. Badger, chief of metro¬ 
politan police, and to each member of the board of the metropolitan police, and to the 
board of metropolitan police, enjoining and restraining them and each of them from inter¬ 
fering in any manner with the organization of either branch of the general assembly to be 
convened on the 9th of December, A. D. 1872, or at any time thereafter, Except to preserve 
the peace, and to prevent no person from having access to either of the halls of said houses 
who is certified by George E. Bovee as being a member-elect of the same. 

“And that writs of injunction also issue, directed to the said E. Booth, A. Voorhies, 
A. J. Lewis, B. F. Jonas, T. B. Stamps, D. S. Cage, R. C. White, T. C. Anderson, J. M. 
Thompson, E. S. Weber, A. S. Herron, Robert Wonall, O. H. Brewster, E. M. Graham, 

J. W. McDonald, A. H. Leonard, C. J. C. Puckett, James G. White, J. F. Kelly, enjoin¬ 
ing and restraining them and each of them from participating in any manner in the or¬ 
ganization of the senate to be convened on the 9th day of December, A. D. 1872, or at - 
any time thereafter, or from doing any act or thing toward, in, or about the organization 
of said senate, either by casting a vote or otherwise, unless his name shall be and appear 
on the list of names of members of said senate transmitted to the secretary of the same 
by George E. Bovee, secretary of state, as having been elected thereto. 

“And that a writ of injunction also issue to the said J. J. Mellon and James Timony, 

J. A. Shakespeare, J. A. Rice, J. J. Finney, E. H. McCaleb, Charles Montaldo,W. B. Bar¬ 
rett, W. L. Stanford, T. B. Blanchard, jr., F. C. Zacharie, F. Fusillier, V. O. King, A. 
Garidel, L. S. Roderiguez, John Barrow, John Delaney, William Stevens, W. C. Kinsella, 

C. Kummell, J. B. Eustis, J. McConnell, A. J. Dumont, E. L. Bowers, E. Riviere, P. Lan¬ 
dry, C. N. Lewis, E. B. Cox, Numa Vives, T. J. Edwards, W. K. Johnston, T. L. Mills, T. 
Bynum, J. S. Gardere, J. L. Lobdell,W. S. Cockernam, W. H. Scanlan, L. P. Sandidge, J. 

Cl Moncure, George L. Smith, J. Sella Martin, W. H. Kirkman, Thomas J. Humble, Paul 
Jones, George C. Bonham, Cain Sartain, Allen J. Davis, W. F. Moreland, Thomas Price, 
David Young, George Washington, J. P. Elam, A. F. Stephenson, JohnGoir, James Laws, 
James W. Armstead, F. W. Norris, J. H. Hadnot, L. A. Snaer, J. K. Cavannaugh, E. A. 
Hubin, William Kern, C. W. Lowell, J. D. Trahan, John S. Billim, O. Harang, T. G. Da¬ 
vidson, James R. McDowell, C. C. Davenport, E. L. Pierson, W. A. Ponder, W. F. South¬ 
ard, D. Hill, H. Mahoney, J. P. Harris, L. B. Claiborne, L. Texada, John J. Swan, J. G. 

P. Hooe, E. W. Dewees, H. F. Vickers, J. F. Smith, R. V. Ducros, M. Hahn, D. K. Gor¬ 
man, Henry Demas, Benjamin R. Gantt, J. F. Little, E. D. Estilette, L. D. Prescott, V. 
Bochon, L. A. Martinet, James Costello, M. J. Foster, J. G. Tate, J. R. Stewart, J. S. 
Mathews, J. J. Bodes, P. Fonteliu, J. R. Smart, A. C. Bickham, J. P. Schultz, William 


510 


SENATE ELECTION CASES. 


A. Strong, enjoining and restraining them and each of them from participating in any 
manner in the organization of the house of representatives, to be convened on the 9th day 
of December, A. D. 1872, or at anytime thereafter, or from doing any act or thing toward, 
in, or about the organization of the same, either by casting a vote or otherwise, unless 
his name shall be and appear on the list of names of members of said house transmitted 
to the clerk of the same by George E. Bovee, secretary of state, as having been elected 
to the same. 

“And that a writ of injunction may also issue, directed to Charles H. Merritt, secre¬ 
tary of the senate of the last general assembly, enjoining and restraining him from 
placing, causing, or suffering to be placed upon the roll of the senate to be convened on 
the 9th December, A. D. 1872, or at any time thereafter, or from placing, causing, or suf¬ 
fering to be placed upon any list of members-elect to said last mentioned senate, or from 
announcing, causing, or suffering to be announced, as a member elected to said last men¬ 
tioned senate, or from recognizing, or causing or suffering to be recognized, as a member 
elected to said last mentioned senate, or from in any manner designating, or causing, or 
suffering to be designated, as a member to the said last mentioned senate, prior or during 
the organization thereof, any person whose name shall not be transmitted to him by George 
E. Bovee, the secretary of state, upon a list of the names of such persons as have been 
elected to the said last mentioned senate, and from in any manner acting upon any other 
list except the one so transmitted by the said George E. Bovee, in the organization of 
the last mentioned senate, and to disregard in said organization all other lists. 

“ And that a writ of injunction may also issue directed to William Yigers, clerk of the 
house of representatives of the last general assembly, enjoining and restraining him from 
placing, causing or suffering to be placed, upon the roll of the house of representatives, to be 
convened on the 9th of December, A. D. 1872, or at any time thereafter, or from placing, 
causing or suffering to be placed, upon any list of members elected to said last men¬ 
tioned house, or from announcing, causing or suffering to be announced, as a member 
elected to said last mentioned house of representatives, or from recognizing, or causing 
or suffering to be recognized, as a member elected to said last mentioned house of repre¬ 
sentatives, or from in any manner designating, or causing or suffering to be designated, 
as a member to the said last mentioned house, prior or during the organization thereof, 
any person whose name shall not be transmitted to him by George E. Bovee, the secre¬ 
tary of state, upon a list of the names of such persons as have been elected to the said 
last mentioned house of representatives, and from in any manner acting upon any other 
list except the one so transmitted by the said George E. Bovee in the organization of the 
last mentioned house of representatives, and to disregard in said organization all other 
lists. 

“And that a writ of injunction also issue directed to saidGeorge E. Bovee, enjoining 
and restraining him from receiving any return or returns of the election of any State offi¬ 
cers or of the members of either branch of the general assembly of the State of Louisiana, 
excepting such returns as may be received by or filed in the office of him as secretary of 
state from the board of returning officers, and a majority of the same, composed of Henry 
C. Warmoth, James Longstreet, and Jacob Hawkins, and John Lynch, and himself, and 
from delivering, causing, or suffering to be delivered to any speaker of the house of rep¬ 
resentatives any return except received and filed as above stated of any election what¬ 
ever, or from making, or causing or suffering to be made, any list of names of the mem¬ 
bers elected to either branch of the general assembly, except from and according to returns 
so received or filed, as above stated. 

“That a writ of injunction also issue directed to the said Jack Wharton and Samuel 
Armstead, and each of them, enjoining and restraining them and each of them from re¬ 
ceiving auy returns of the elections held in the State of Louisiana on the first Monday of 
November last past, for members of the general assembly, or from transmitting to Will¬ 
iam Yigers, the clerk of the house of representatives, or to Charles H. Merritt, the sec¬ 
retary of the senate of the last general assembly, or to any other person, any list of names 
which is or purports to be a list of names of such persons as, or the name of any person 
who, according to any returns, shall have been, or shall be stated, or claimed, or assumed 
to have been, elected to either branch of the general assembly called to convene on the 
9th day of December, A. D. 1872, or that may be called to convene at any future time, 
and from making any statement or doing anything calculated or designed to furnish a 
basis for the organization of either of said branches of the said general assembly, or from 
delivering or interfering, conniving at, or aiding, or suffering any other person to deliver 
to the speaker of the house of representatives, or any other person, any returns of any 
election whatever. 

“ And that writs of injunction may also issue directed to the said Thomas Isabelle, P. 
S. Wiltz, J. S. Taylor, J. E. Austin, and G. de Feriet; also issue against the said H. C. 
Warmoth, Jack Wharton, Frank H. Hatch, and Durant Da Ponte, commanding them 
and each of them to refrain and desist from pretending to act together as a board of re- 


THE LOUISIANA CASES, 1873-80. 5H 

turning officers or as returning officers of elections, from canvassing or attempting to can¬ 
vass or consider any certificate, document, affidavit, return, statement of votes, or any 
paper whatsoever properly relating to said election, and from attempting to make a 
canvass, declare, or publish any pretended deduction, calculation, statement, or proclama¬ 
tion based thereon, or pretended to be derived therefrom, in any way relating or pertain¬ 
ing to said election, held on the 4th day of November, 1872, or certifying to any candidate 
lor office at said election, any certificate of election, or any statement of the result of said 
election tending to show any right to office in any person growing out of ballots cast at 
said election, and from meddling with, altering, suppressing, falsifying, obliterating, or 
destroying any document, paper, voucher, proof, statement of votes, or certificates relat¬ 
ing to said election. 

I hereby certify that the foregoing is a true and correct copy of the complainant’s 
prayer for injunction in his bill of complaint in the cause of Caesar C. Antoine vs. Henry 
C. Warmoth et al. y No. 6851 of the docket of the circuit court of the United States foi 
the district ol Louisiana, referred to and made a part of the subjoined restraining order. 

“ [seal.] F. A. WOOLFLEY, Clerk. 

“January 3,1873.” 

“ United States of America, circuit court of the United States,-fifth circuit and district 

of Louisiana. 

' “Clerk’s Office. 

“I, Francis A. Woolfley, clerk of the circuit court of the United States for the fifth 
circuit and district of Louisiana, do hereby certify that the foregoing pages contain and 
form a full, complete, true, and perfect transcript of the record and proceedings had, ex¬ 
cept entries from minutes of continuances, &c., in the case of C. C. Antoines. H. C. 
Warmoth et al ., No. 6851 of the docket, so far as the same now remains of record or on 
file in said court. 

“Witness my hand and the seal of said court, at the city of New Orleans, this 3d day 
of January, A. D. 1873. 

“[seal.] F. A. WOOLFLEY, Clerk.' 1 ' 


Here was a restraining order, having the force of an injunction, issued for no purpose 
under heaven except to control the organization of the legislature and compel the seat¬ 
ing of those members who had been returned and certified to by the Lynch board, and 
exclude those who had been certified by the De Feriet board. 

When we consider that the act of Congress under which this proceeding was instituted 
by express words excludes members of the State legislature from the right to maintain 
any proceedings in a Federal court to obtain their seats, even when they have been de¬ 
feated and deprived of their rights, because citizens have been denied the right to vote on 
account of race, color, or previous condition of servitude; and that the State-house was held 
by Federal troops under the unlawful and void order of Judge Durell, hereinbefore set 
forth, which order commanded the marshal to prevent “all unlawful assemblage therein 
under the guise or pretext of authority claimed by virtue of pretended canvass and re¬ 
turns made by said De Feriet board,” we can comprehend the full force and effect of the 
additional restraining order in the Antoine case. 

It was claimed that section 15 of the act of Congress approved February 28, 1871, 
which provides “that the jurisdiction of the circuit courts of the United States shall ex¬ 
tend to all cases in law or equity arising under the provisions of this act, or the act 
hereby amended,” had the effect to repeal the exception in regard to “members of a 
State legislature” in section 23 of the act of May 31, 1870. 

But we think this proposition cannot be maintained. The case of a member of a State 
legislature claiming his seat was not a case arising under the former act, because it was 
expressly excluded by that act. It was not a case arising under the latter act, because 
there is no provision of that act applicable to such a case, or recognizing any purpose of 
Congress to extend the jurisdiction of circuit courts to the cases excepted in the twenty- 
third section of the original act. It must be borne in mind that if the fifteenth section 
of the latter act extended the jurisdiction of the circuit court over the election of mem¬ 
bers of a State legislature, it did so as to members of Congress, which would be clearly 
unconstitutional, because the Constitution makes each House of Congress the exclusive 
judge of the election, returns, and qualification of its own members. The constitution 
of every State of the Union contains similar provisions in regard to the houses of the 
legislature of the State. The intention of Congress to pass a law in violation of the ex¬ 
press provisions of the Constitution of the United States cannot be maintained unless that 
intention be expressed in words so plain as to admit of no other construction. There is 
no provision of the latter act compelling or justifying such a construction. On the con¬ 
trary, remedies are given by the latter act which fully explain the purpose of that por- 


512 


SENATE ELECTION CASES. 


♦ 


tion of section 15 above quoted, without holding it to he a repeal of the exceptions in 
section 23 of the former act. 

And if a member of a State legislature cannot maintain a suit in the Federal courts to 
secure his right to sit in the legislature, it can require no argument to show that the 
lieutenant-governor cannot maintain a suit in the Federal courts on behalf of a hundred 
such members. 

Indeed, it is impossible not to see that this bill was filed, and the restraining order 
thereon was issued, for the sole purpose of accomplishing, what no Federal court has the 
jurisdiction to do, the organization of a State legislature. , 

And your committee cannot refrain from expressing their astonishment that any judge 
of the United States should thus unwarrantably have interfered with a State govern¬ 
ment, and know no language too strong to express their condemnation of such a pro¬ 
ceeding. 

It is the opinion of your committee that but for the unjustifiable interference of Judge 
Durell, whose orders were executed by United States troops, the canvass made by the 
De Feriet board, and promulgated by the governor, declaring McEnery to have been 
elected governor, &c., and also declaring who had been elected to the legislature, would 
have been acquiesced in by the people, and that government would have entered quietly 
upon the exercise of the sovereign power of the State. But the proceedings of Judge 
Durell, and the support given to him by United States troops, resulted in establishing 
the authority de facto of Kellogg and his associates in State offices, and of the persons 
declared by the Lynch board to be elected to the legislature. We have already seen that 
the proceedings of that board cannot be sustained without disregarding all the principles 
of law applicable to the subject, and ignoring the distinction between good faith and fraud. 

Your committee are, therefore, led to the conclusion that if the election held in No¬ 
vember, 1872, be not absolutely void for frauds committed therein, McEnery and his 
associates in State offices, and the persons certified as members of the legislature by the 
De Feriet board, ought to be recognized as the legal government of the State. Consid¬ 
ering all the facts established before your committee, there seems no escape from the 
alternative that the McEnery government must be recognized by Congress, or Congress 
must provide for a re-election. And this brings us to consider— 

1. Whether the election of November last is void for fraud; and 

2. If void, has Congress the authority to order a re-election ? 

First. A careful consideration of the testimony convinces us that, had the election of 
November last been fairly conducted and returned, Kellogg and his associates, and a 
legislature composed of the same political party, would have been elected. The colored 
population of that State outnumbers the white, and in the last election the colored voters 
were almost unanimous in their support of the Republican ticket. Governor Warmoth, 
who was elected by the Republicans of the State in 1868, had passed into opposition, and 
held in his hands the entire machinery of the election. He appointed the supervisors of 
registration, and they appointed the commissioners of election. The testimony shows a 
systematic purpose on the part of those conducting the election to throw every possible 
difficulty in the way of the colored voters in the matter of registration. The polling 
places are not fixed by law, and at the last election they were purposely established by 
those conducting the election at places inconvenient of access, in those parishes which 
were known to be largely Republican; so that, in some instances, voters had to travel 
over twenty miles to reach the polls. The election was generally conducted in quiet, 
and was, perhaps, unusually free from disturbance or riot. Governor Warmoth, who was 
the master spirit in the whole proceeding, seems to have relied upon craft rather than 
violence to carry the State for McEnery. In the canvass of votes which determined the 
McEnery government to be elected the votes of several Republican parishes were rejected. 

The testimony shows that leading and sagacious politicians of the State, who were 
acting with Warmoth, entertained the opinion before the election that Warmoth’s con¬ 
trol of the election machinery was equivalent to 20,000 votes; and we are satisfied by the 
testimony that this opinion was well founded. We believe that had registration been 
accessible to all, and polling places been properly established, the result of the election 
would have been entirely different. And although we cannot approve of such a canvass 
as that made by the Lynch board, who seem to have acted upon the principle of 
“fighting the devil with fire,” and circumventing fraud by fraud, and cannot say that 
Kellogg’s government was elected, nevertheless we believe that Kellogg’s government 
was defeated, and the popular voice reversed, by the fraudulent manipulation of the 
election. 

If the Senate should be inclined not to go behind the official returns of the election, 
then the McEnery government and legislature must be recognized as the lawful govern¬ 
ment of the State, and McMillen, if regularly elected by that legislature, should be seated 
in the Senate in place of Kellogg. But your committee believe that this would be recog¬ 
nizing a government based upon fraud, in defiance of the wishes and intention of the 
voters of that State. 


THE LOUISIANA CASES, 1873-80. 


513 


Second. Ii llie Senate shall concur with us in the opinion that the frauds committed 
in the election are sufficient to annul it, then it will be necessary for the Senate to con¬ 
sider whether Congress has the power to order a re-election. 

This is one oi the most important and delicate questions that can arise under the Con¬ 
stitution of the United States. The Constitution, article 4, section 4, provides: 

“ The United States shall guarantee to every State in this Union a republican form of 
government, ’ ’ &c. 

This provision of the Constitution requires that the United States shall guarantee to 
every State two things: First, a government; and second, a government which is repub¬ 
lican in form. 

What is meant 'by the term “government” in this part of the Constitution? That 
man or body of men, in any community, who exercise sovereign power constitute the 
government of that community; and the best definition of a republican government ever 
given in the English tongue is that given by President Lincoln: “A government of the 
people, by the people, for the people.” A standard author thus defines sovereignty: 

‘ k In every society, not being in a state of nature or a state of anarchy, some person or 
persons must possess the supreme or sovereign power. 

“The marks by which the possession of the sovereign power may be distinguished are 
mainly two, the one positive and the other negative, viz: 

“1. A habit of obedience to some determinate person or persons by the community 
which he or they assume to govern. 

‘‘2. The absence of a habit of obedience, on the part of the same person or persons, to 
any person or government. ’ ’ 

This definition furnishes us a criterion for determining whether there is at present any 
government in the State of Louisiana. And, judging the condition of things by this 
rule, it is impossible to say that the State has any government whatever. The McEnery 
government, so called, approaches more nearly a government de jure , and the Kellogg 
government a government de facto. 

The Kellogg government is in possession of the State-house, the seal, archives, and 
records of the State, and its empty treasury. There are two bodies of men in that State, 
one claiming to be the senate and the other the house of representatives, who recognize 
Kellogg and his associates as the officers of the State. But there is not, and never has 
been, a quorum of both houses who have any pretense of having been elected to their 
seats. This pretended legislature is daily passing laws, and Kellogg is approving or 
vetoing them. This is the legislature which pretended to elect Ray to fill the unexpired 
portion of Kellogg’s term in the Senate. McEnery and his associates claim to be the 
rightful officers of the State, and two other bodies of men claim to be the senate and 
house of representatives of the State. And this is the legislature which pretended to 
elect McMillen to fill Kellogg’s unexpired term in the Senate. 

But it is claimed that the validity of the Kellogg government has been established by 
a decision of the supreme court of that State, and that this question is therefore pre¬ 
cluded. Before proceeding to consider the case relied upon, it may be well to recall some 
general principles applicable to this subject. 

In Luther vs. Borden, 7 Howard, 1, the Supreme Court had occasion to examine a case 
growing out of the Dorr rebellion in Rhode Island. The action was a trespass for cer¬ 
tain acts done by the defendant under authority of the charter government, after the 
declaration of martial law by that government. The plaintiff set forth the facts consti¬ 
tuting the injury complained of, and the defendant pleaded the existence of a rebellion, 
the declaration of martial law, and that the acts complained of were done under orders ot 
a military superior while martial law was in force. The plaintiff replied that the act de¬ 
claring martial law was invalid, because the government which adopted it was not the 
legal government of Rhode Island. That the people of the State had previously adopted 
a new constitution, under which the legal government of the State was organized, and 
therefore the pretended declaration of martial law was the act of a defunct government 
and absolutely void. The issue thus formed raised the question: Which was the legal 
government of Rhode Island at the time the alleged trespass was committed ? 

After stating this to be the question presented by the case, the court, by C. J. Taney, 
say: 

“ Indeed, we do not see how the question could be tried and judicially decided in the 
State court. Judicial power presupposes an established government capable of enacting 
laws and enforcing their execution, and of appointing judges to expound and administer 
them. The acceptance of the judicial office is a recognition of the authority of the gov¬ 
ernment from which it is derived. And if the authority of that government is assailed 
and overthrown, the power of its courts and other officers is annulled with it. And if a 
State court should enter upon the inquiry proposed in this case, and it should come to 
the conclusion that the government under which it acted had been put aside and dis¬ 
placed by an opposing government, it would cease to be a court, and be incapable of 

S. Doc. 11-33 



514 


SENATE ELECTION CASES. 


pronouncing a judicial decision upon the question it undertook to try. 11 it decides at 
all as a court, it necessarily affirms the existence and authority of the government under 
which it is exercising judicial power.” 

Much reliance is placed upon some detached expressions in this opinion, which, unless 
considered with reference to the facts, might seem to conflict with the paragraph above 
quoted. 

The Dorr government only pretended to exist for about one year, and in that year the 
acts were committed of which the plaintiff complained. In 1843 the people of that State 
adopted a constitution under which the government of the State was organized, which 
was universally admitted to be the legitimate government, supplanting all former gov¬ 
ernment of the State; and after the new government was established, a government which 
was altogether free from question, Dorr was brought to trial for acts done by him—not 
under the government of the State existing when the indictment was found, but during 
the year when the question of legitimacy was in dispute between the Dorr government 
and the charter government. In this cause, under the new and unquestioned govern¬ 
ment, Dorr, in his defense, set up, as a fact, that the Dorr government was the real gov¬ 
ernment, when, &c., and that he did the things charged to be treason in the capacity of. 
governor, as he lawfully might. 

The court, that is, the court of the new government, under the constitution of 1843, 
decided that the Dorr government, so called, was a fraud, and not a government. And 
it was of the decisions of this court that Chief-Justice Taney was speaking when he em¬ 
ployed the language now relied upon to show that the supreme court of Louisiana, by 
recognizing one of the rival governments, now contending for supremacy in that State, 
can settle the question so as to preclude the United States from entering upon that field 
of inquiry. 

The Chief-Justice, to guard against the use of his language now sought to be made, 
says: 

“ It is worthy of remark, however, when we are referring to the authority of the State 
decisions, that the trial of Thomas W. Dorr took place after the constitution of 1843 went 
into operation. The judges who decided that case held their authority under that con¬ 
stitution, ’ ’ &c. 

Bearing these principles in mind, we come to consider the case decided by the supreme 
court of Louisiana, which is The State ex rel. P. H. Morgan vs. J. H. Kennard. Your 
committee know nothing of this case except from the opinions delivered by the judges 
therein, the record not being before us. 

In November, 1872, Judge Howe, of the supreme court, resigned, and Governor War- 
moth commissioned J. H. Kennard to fill the vacancy. After the Kellogg legislature was 
organized under Judge Durell’s injunctions, enforced by United States troops, the house 
of representatives of that legislature pretended to impeach and suspend Governor Waf- 
moth, whereupon Pinchback, who had been elected president of the senate in place of 
Lieutenant-Governor Dunn, deceased, which under the constitution made him lieutenant- 
governor, proclaimed himself acting governor in place of Warmoth, impeached and sus¬ 
pended. Pinchback afterward nominated Morgan, who was confirmed by the senate, to 
fill the same vacancy. 

On the 15th of January, 1873, the Kellogg legislature passed an act entitled “An act 
to regulate proceedings in contestation between persons claiming a judicial office.” This 
act provides that, if the incumbent shall refuse to vacate the office, the person ‘ ‘ so com¬ 
missioned shall have the right to proceed by rule. * * * Such rule shall be taken 
contradictorily with such incumbent, and shall be made returnable within twenty-four 
hours, and shall be tried immediately, without jury, and by preference over all other 
matters or causes depending in such court, and the judgment thereon shall be signed 
the same day of rendition. 

“ That either party to such rule may take an appeal from the judgment thereon, but 
such an appeal shall be applied for within one legal day from the rendition of the 
judgment on such rule, and shall be made returnable to the supreme court within two 
days. 

“The appeal shall be taken up in the supreme court by preference over all other cases, 
immediately on the application of either party, and the judgment thereon shall become 
final after the expiration of one legal day, whether judicial or not.” 

Whatever else may be said of this law, it cannot be said that it was intended to delay 
the administration of justice. A decision rendered at 11.55 Saturday night, as it might 
be, would have to be appealed from within five minutes after its rendition, or the right of 
appeal would be gone lorever. 

But your committee, for the purpose of this report, will concede the constitutionality 
and validity of this act. 

This act was approved on the 15th day of January, 1873, and on the next day the 
plaintiff in some subordinate court filed the following motion or rule: 

“ On motion of A. P. Field, attorney-general of the State of Louisiana, herein appear- 


THE LOUISIANA CASES, 1873-80. 


515 


ing upon the relation of Philip Hickey Morgan, a resident of the parish of Orleans, and 
upon suggesting and giving the court to understand, and be informed as follows, to wit: 

k ‘That said P. H. Morgan was nominated by the acting governor of the State to the 
senate thereof, to till the vacancy of associate justice of the supreme court of Louisiana; 
that his said nomination was confirmed; that he was commissioned thereto on the 4th of 
January, 1873; that he has taken and subscribed the oath required by law; that he is 
eutitled and empowered to execute and fill the duties of said office according to law, 
and to have and to hold said office, with all the powers, privileges, and emoluments 
thereof; 

' ‘And on further suggesting that John H. Kennard, also a resident of said parish, un¬ 
lawfully holds said office and executes the duties thereof, and claims the right to the said 
office, and to the powers, privileges, and emoluments thereof, 

“It is ordered , That said John H. Kennard show cause, on Saturday, January 18,1873, 
at 11 o’clock a. m., why it should not be forthwith adjudged and decreed that he is unlaw¬ 
fully holding and exercising the duties of said office of associate justice of the supreme court 
of the State of Louisiana, and the said P. H. Morgan be decreed and adjudged entitled 
thereto. ’ ’ 

On the 18th of January, 1873, the defendant filed the following exception, to wit: 

“And now comes John H. Kennard, and excepts that there has been no citation 
issued herein, or served on him in this case, and prays to be hence dismissed with 
costs,” 

On the same day the following exception and answer was also filed, to wit: 

“ Now comes John H. Kennard, defendant in this suit, and excepts to the rule herein 
taken by A. P. Field, attorney-general, on the relation of P. H. Morgan, on the ground 
that said proceeding by rule, in manner and form as set forth in said rule, is not author¬ 
ized bylaw; and further, that the act of the 15th January, 1873, entitled ‘An act to regulate 
proceedings in contestations between persons claiming a judicial office,’ as to its first sec¬ 
tion is unconstitutional and void, not being in conformity to the title of said act; and 
further that said act is prospective, and does not apply to pending litigation. And fur¬ 
ther, that said act in relation to sections 2 and 3 is unconstitutional, as it authorizes 
proceedings which amount to a denial of justice. And further, that if said act is to be 
construed as applicable to suits instituted prior to its passage, it is retroactive and void, 
because in violation of article 110 of the constitution. In case these exceptions be over¬ 
ruled, and not otherwise, for answer to said rule this respondent avers that he was duly 
appointed by the governor of the State to the office of associate justice of the supreme 
court of the State of Louisiana, on the 3d day of December, 1872, vice W. W. Howe, 
resigned during the recess of the senate, and that on the same day he was duly qualified 
and took possession of said office, having complied with all legal requirements, and his 
term of office has not yet expired.” 

On the same day (Saturday, January 18, 1873), these exceptions were overruled by 
the court, and the case was continued for trial till Monday, the 20th January, 1873, on 
which day the defendant filed the following supplemental answer, to wit: 

“Now comes in J. H. Kennard, and for further answer prays for a trial by jury, and 
pleads that the said act of the legislature under which the relator, P. H. Morgan, claims 
to proceed is null and void, as violative of section 1, article 14, of the Constitution of the 
United States, which forbids any State from making any law which shall abridge the 
privileges and immunities of its citizens, and prohibits any State from depriving any 
person of life, liberty, or property without due process of law, or to deny to any person, 
within its jurisdiction, the legal protection of its laws; and if said act is void, this court 
has no jurisdiction to proceed by rule in the manner and form as set forth in said rule.” 

On the same day the prayer for trial by jury was refused, the case was tried, and judg¬ 
ment entered for the plaintiff. The defendant immediately took an appeal. 

The only question to be settled by this suit was whether Morgan, the relator, or Ken¬ 
nard, the defendant, was entitled to hold the office of associate justice of the supreme 
court in place of Howe, resigned; and the idea that in disposing of this single question 
the court had any authority or jurisdiction to determine as between War moth and Pinch- 
back, neither of whom was a party to the cause, which of them was entitled to exercise 
the office of governor, and between two or three hundred persons, the Kellogg legisla¬ 
ture, and as many more, the McEnery legislature, not one of whom was a party to the 
suit, which of the rival bodies was authorized to exercise the legislative power of that 
State, is too preposterous a proposition to require serious refutation. 

The utmost that can be claimed for this decision is that the court recognizes the Kel¬ 
logg government as a government de facto, which may be conceded without touching the 
question whether it has been established by a regular election or set up and established 
by the usurpation of the individuals composing it, sustained by the military forces of 
the United States. 

The question we are considering is not a judicial question and no judicial court can 
determine it. The question is political in its character, and, so far as the United States 


516 


SENATE ELECTION CASES. 


have to deal with it, must be determined by the political department of this Govern¬ 
ment. We must therefore investigate the facts, and no decision of any branch of a pre¬ 
tended State government can estop us in this inquiry. 

The people of the State are about equally divided in sentiment in regard to these two 
pretended governments. The people of New Orleans, which is the seat of government, 
support the McEnery government, two to'one; and it is believed that if Federal support 
were withdrawn from the Kellogg government it would be immediately supplanted by 
the McEnery government. The people of the State, as a body, neither support nor sub¬ 
mit to either government. Neither government can collect taxes, for the people have 
no assurance that payment to one will prevent collection by the other government. 
Business is interrupted, and public confidence destroyed; and should Congress adjourn 
without making provision for the case, one of two things must result: Either collision 
and bloodshed between the adherents of the two governments, or the President must 
continue the support of Federal authority to the Kellogg government. The alternative 
of civil war or the maintenance by military power of a State government not elected is 
exceedingly embarrassing; and in the opinion of your committee the best solution of this 
difficulty is for Congress to order a re-election, and provide for holding it under author¬ 
ity of the United States; to the end that a government may be elected by the people, to 
which they will submit, or which, in case of disturbance, the United States can honestly 
maintain. 

Your committee have prepared a bill which they believe will insure an honest elec¬ 
tion, and result in the establishment of a republican form of government in that State, 
and your committee recommend its passage. 

We are aware that ordering an election in a State upon the ground that an election 
which has been held is void for fraud is an exercise of power which ought never to be 
undertaken by Congress without stern necessity. It will be said that if such power re¬ 
sides in Congress it may be exercised improperly. This is true. But the same may be 
said of every power conferred upon a government. The people, in adopting the Consti¬ 
tution of the United States, saw fit to confer upon the General Government authority to 
guarantee to each of the States a government republican in form. This undoubtedly 
confers the power to determine whether a particular State has a government, and, if so, 
whether it be republican in form. There is no doubt Congress might to-morrow, as a 
question of mere power, declare that the government of Massachusetts is not republican 
in form, and set up in its place a government which it might determine to be so. This 
would, of course, be a great abuse of this power. When a judge has jurisdiction to de¬ 
cide a cause, he has as much power to decide it wrong as right; and an erroneous judg¬ 
ment is as valid as any other, until vacated or reversed by competent authority. In 
exercising this power Congress should act with great caution and prudence. The clamor 
usually raised by those who are defeated in an election should not, and would not, in¬ 
duce Congress to interfere. Ordinarily, even a government elected by fraud, but going 
quietly into the exercise of power, and submitted to by the people, may better be left 
to fill its brief term than be interfered with by Congress. But when the frauds commit¬ 
ted are so glaring and widespread as to create public discontent in the State, and the 
organization of two rival governments threatening civil war, and it is manifest that 
neither government has been fairly elected, this power of the National Government must 
be regarded as wise and salutary. It cannot be maintained that its prudent exercise vio¬ 
lates the rights of the States, because the States, for their own protection and security, 
have conferred the power upon the National Government; and this Government cannot 
refuse or neglect to exercise it, in a proper case, without disregarding the obligation which 
the Constitution has devolved upon it. We think the melancholy condition of the peo¬ 
ple of Louisiana, who are substantially in a state of anarchy, makes it the duty of Con¬ 
gress to act in the premises. 

Therefore your committee recommend the adoption of the following resolutions: 

1. Resolved, That there is no State government at present existing in the State of Lou¬ 
isiana. 

2. Resolved , That neither John Ray nor W. L. McMillen is entitled to a seat in the 
Senate, neither having been elected by the legislature of the State of Louisiana. 

And your committee recommend the passage of the bill herewith reported. 

MATT. H. CARPENTER. 

JOHN A. LOGAN. 

J. L. ALCORN. 

H. B. ANTHONY. 


VIEWS OF ME. TRUMBULL. 

The undersigned, unable to agree to the recommendations and some of the conclusions 
of the majority of the committee, asks leave to present the following views: 

He agrees with the majority that portions of the Louisiana election law are in conflict 


THE LOUISIANA CASES, 1873-80. 


517 


with the constitution of the State; that Wharton was de facto secretary of state, and, as 
such, ex officio a member of the returning board; that under the statute the Warmoth- 
Wharton board was the legal and rightful board to canvass the official returns; that it 
was illegally restrained by United States District Judge Durell from making such canvass; 
that by the election lawapproved November 20,1872, all previous returning boards were 
abolished; that the DeFeriet-Wiltz board was authorized under that act to complete the 
canvass which had been begun under the Wharton board; that said De Feriet board did 
canvass the official returns, and the result was duly proclaimed by the governor Decem¬ 
ber 4; that Herron ceased to be the secretary of state when Wharton was appointed and 
took possession of the office; that the Lynch returning board never had authority to ex¬ 
amine the official returns, and never had any to examine; that neither Kellogg nor any 
of the persons returned as elected to State offices by the Lynch board were elected accord¬ 
ing to the official returns; that neither thePinchback nor the Kellogg State government 
could have been set up, nor the persons returned by the Lynch board as elected to the 
legislature have assembled and organized as a legislature, but for the unauthorized and 
usurped authority exercised by Judge Durell, supported by United States troops. 

On the contrary, that but for such illegal and unwarranted interference, the McEnery 
State government and legislature would have been peacefully inaugurated, and that 
there has been no decision of the supreme court of Louisiana declaring the Kellogg State 
government and legislature legal in any case over which said court had jurisdiction to 
make such decision. The undersigned cannot, however, agree, because a United States 
district judge, supported by United States troops, has, by usurpation, caused a governor 
and a legislature not elected by the people to be installed in power in a State, that such 
usurpation authorizes Congress to intervene and order a new election in the State when 
there is in existence in such State a governor, other State officers, and members of the 
legislature duly elected by the people. All that is necessary in such a case is for the 
Senate to recognize the legitimate legislature by admitting to his seat in the Senate the 
person they have chosen to represent the State, and to forbid the use of United States 
troops to carry into effect the void orders of a usurping judge. The whole trouble in 
Louisiana has grown out of the illegal interference of the United States authorities, civil 
and military, with the internal affairs of the State. 

According to the official returns, the fusion State ticket, headed by McEnery for gov¬ 
ernor, received an average majority of about 10,000 votes, and a large majority of the 
persons elected to the legislature were of the same party; and but for the illegal inter¬ 
ference of the United States authorities, as is stated in the report of the majority, the 
McEnery government would have been peacefully inaugurated. 

How skillfully the plan was laid to overthrow the legitimate State government, set 
aside an election, and inaugurate the Pinchback and Kellogg administrations and legis¬ 
latures, and how well Judge Durell was supported in all these revolutionary and illegal 
proceedings by other United States officials, will appear by reference to a few facts dis¬ 
closed in the evidence. The legislature had been called by Governor Warmoth to assem¬ 
ble December 9; December 3 the following dispatch was sent from Washington: 

Department of Justice, December 3, 1872. 

S. B. Packard, Esq., 

United States Marshal , New Orleans , Louisiana: 

You are to enforce the decrees and mandates of the United States courts, no matter by 
whom resisted, and General Emory will furnish you with all necessary troops for that 
purpose. 

GEO. H. WILLIAMS, 

Attorney-General . 

This dispatch, so far as the evidence shows, was not responsive to any call for troops; 
there had been no resistance to any process of the United States courts, nor does it appear 
that any was threatened. R. H. Jackson, a captain in the First Artillery, United States 
Army, testified that he went to New Orleans on the night of December 5 with two bat¬ 
teries of his regiment and eighty-six men. 

The same night, December 5, between 9 and 11 o’clock, Judge Durell, at his private 
lodgings, issued his order, which, for want of jurisdiction, was void, and entitled to no 
respect from anybody, directing the United States marshal forthwith to take possession 
of the State-house, to hold the same until the further order of the court, and prevent all 
unlawful assemblage of persons therein, having reference to the persons returned as elected 
to the legislature according to the official returns. Captain Jackson testifies that he 
took possession of the State-house at about 2 o’clock on the morning of the 6th, with in¬ 
structions to take and hold it under the direction of the United States marshal, and to 
act in obedience to his orders. He further testified that he was not stationed in the 
State-house to prevent riots, but to hold the building, and that if a riot had occurred in 


518 


SENATE ELECTION CASES. 


front of the building he would not have interfered. He posted two soldiers at the entrance 
door, who guarded it with crossed bayonets, and suffered no one to enter the building 
except by permission of the United States marshal, one of whose deputies was at all 
times present. These troops continued to occupy the State-house for more than six 
weeks, until January 21, and it is manifest, from the whole testimony, that they were not 
there to preserve the peace, but to carry out the illegal orders of Judge Durell, and pre¬ 
vent the legally elected members of the legislature from assembling and organizing. 

Can it be that the Attorney-General sent his telegram, and that Captain Jackson was 
ordered to New Orleans with his batteries, in anticipation of the unauthorized orders of 
United States District Judge Durell to seize the State-house and prevent the legislature 
from organizing except with such persons as he should declare legally elected; or that 
the Attorney-General supposed it the duty of the Executive to support with the military 
power the decrees and mandates of United States courts issued without jurisdiction, and 
consequently void? In no conceivable case could a United States court or judge have 
jurisdiction to issue orders such as were promulgated by Judge Durell. As well might 
a United States district judge make an order to seize the Federal Capitol and prevent all 
members of Congress from entering the building except such as he should declare elected. 
Would the President direct General Emory to furnish the troops to execute such an 
order? He has no more right to aid the execution of an order of court, void for want of 
jurisdiction, than the judge has to make it. It is his duty to discriminate between the 
orders of courts which may be lawful and those which must necessarily be void for want 
of jurisdiction. Had the troops been withdrawn when the character of the orders they 
were enforcing was made known, it might be inferred that the Attorney-General did not 
intend they should be used for such a purpose; but they held possession of the State- 
house for more than six weeks. 

The next telegram was from Casey, United States collector of the port of New Orleans, 
a? follows: 


New Orleans, December 6,1872. 

President Grant: 

Marshal Packard took possession of State-house this morning, at an early hour, with 
military posse, in obedience to a mandate of circuit court, to prevent illegal assemblage 
of persons under, guise of authority of Warmoth’s returning board, in violation of in¬ 
junction of circuit court. Decree of court just rendered declares Warmoth’s returning 
board illegal, and orders the returns of the election to be forthwith placed before the 
legal board. This board will probably soon declare the result of the election of officers 
of State and legislature, which will meet in State-house with protection of court. The 
decree was sweeping in its provisions, and if enforced will save the Republican majority 
and give Louisiana Republican legislature and State government, and check Warmoth 
in his usurpations. Warmoth’s Democratic supporters are becoming disgusted with him, 
and charging that his usurpations are ruining their cause. 

JAS. F. CASEY. 

What a spectacle is this, to see a State legislature set up and made Republican by the 
usurped authority of a United States district judge. 

The next dispatches are as follows: 

New Orleans, December 6, 1872. 

Attorney-General Williams, Washington, D. C.: 

Returning board provided by election of ’70, under which election was held, and 
which United States court sustains, promulgated in official journal this morning result 
of election of legislature: House stands 77 Republicans, 32 Democratic; senate 28 Repub¬ 
licans, 8 Democratic. Board counted ballots attached to affidavits of colored persons 
wrongfully prevented from voting, filed with chief supervisor. 

S. B. PACKARD, 

United States Marshal. 


[Telegram.] 


New Orleans, December 9,1872. 

Hon. Geo. H. Williams, 

Attorney-General, Washington, D. C.: 

Returning board has officially promulgated in official journal this morning the result 
of the election for State officers. Kellogg’s majority, 18,861. 

S. B. PACKARD, 

United States Marshal. 


THE LOUISIANA CASES, 1873-80. 


519 


The returning hoard here referred to is the illegal Lynch board, which never had an 
official return before it. Lynch, in testifying belore the committee, said: 

“ We took all the evidence we had before us, and our knowledge of the parishes and 
their political complexion, and we then decided. 

“ By Mr. Carpenter: 

“Q. You estimated it, then, upon the basis of what you thought the vote ought to 
have been? 

“A. Yes, sir. That was just the fact, and I think on the whole we were pretty 
correct.’ ’ 

Much of what Lynch called evidence was shown to be newspaper reports, letters, and 
forged affidavits. Then followed in quick succession the following dispatches: 

[Telegram.] 


New Orleans, December 9, 1872. 

Hon. Geo. H. Williams, Attorney-General: 

Governor Warmoth has been impeached by vote of 58 to 6. Warmoth’s legislature 
returned by his board has made no pretense of a session. 

S. B. PACKARD, 

United States Marshal. 


[Telegram.] 

New Orleans, La., December 9, 1872. 

Hon. Geo. H. Williams, Attorney-Genet'al : 

Senate, by vote of 17 to 5, have resolved into high court of impeachment. Senator 
Harris elected president of the senate, Lieutenant-Governor Pinch back being now gov¬ 
ernor. 

S. B. PACKARD, 

United States Marshal. 


[Telegram.] 


New Orleans, December 9,1872. 


Hon. Geo. H. Williams, 

Attorney-General , Washington , D. C.: 

Lieutenant-Governor Pinchback qualified and took possession of the governor’s office 
to-night. Senate organized as high court of impeachment, Chief-Justice Ludeling pre¬ 
siding, and adjourned to meet Monday next. It is* believed that all the Democrats, 
members of general assembly, will qualify and take seats to-morrow. 

S. B. PACKARD, 

United States Marshal. 


[Telegram.] 


New Orleans, December 9, 1872. 

We have the honor to transmit to your excellency the following concurrent resolution 
of both houses of the general assembly and to request an early reply: 

“Whereas the general assembly is now convened, in compliance with the call of the 
governor, and certain evil-disposed persons are reported to be forming combinations to 
disturb the public peace, defy the lawful authority, and the State is threatened with 
violence: Therefore, 

Be it resolved by the senate and house of representatives of the State of Louisiana in general 
assembly convened , That the President of the United States be requested to afford the 
protection guaranteed each State by the Constitution of the United States when threat¬ 
ened with domestic violence, and that the presiding officers of the general assembly 
transmit this resolution immediately by telegraph or otherwise to the President of the 
United States.” 

Adopted in general assembly convened this 9th day of December, A. D. 1872. 

P. B. S. PINCHBACK, 
Lieutenant-Governor , and President of the Senate. 

CHAS. W. LOWELL, 

Speaker of the House of Representatives, 


520 


SENATE ELECTION CASES. 


[Telegram.] 


New Orleans, December 9, 1872. 

President Grant: 

Having taken the oath of office and being in the possession of the gubernatorial office, 
it devolves upon me to urge the necessity of a favorable consideration of the request of 
the general assembly as conveyed in the concurrent resolution of this day telegraphed 
to you requesting the protection of the United States Government. Be pleased to send 
the necessary orders to General Emory. This seems to me a necessary measure of pre¬ 
caution, although all is quiet here. 

P. B. S. PINCHBACK, 

Lieutenant-Governor , Acting Governor of Louisiana. 

This pretended legislature, made up of persons returned as members by the Lynch 
board, perfected its organization, impeached the governor, suspended him from office, 
and installed Pinchback in his place. All this was done on the same day and within a 
few hours, and that, too, in disregard of a statute of the State, which, as stated to the 
committee, provides that the officer sought to be impeached shall be summoned before 
a committee of the house of representatives; shall have permission to cross-examine 
witnesses that are brought against him; shall have citation of the witnesses he may 
desire to summon; that the house of representatives shall act only in case the committee 
report in favor of the impeachment; that if the committee report adversely to it, that is 
itself an acquittal, and the officer cannot ever be arraigned on the charges then reported 
on. No such proceedings were had in this case. 

It may not be amiss to remark in this connection that each of the members of the 
Lynch board was immediately rewarded by Pinchback with a lucrative office, except 
Lynch, and his son was given an appointment. 

While these revolutionary proceedings were being enacted, Judge Durell was busy 
fulminating new injunctions and restraining orders, and calling Governor Warmoth and 
his associates of the legal returning board before him to answer for alleged contempts of 
his void orders. 

The Pinchback administration and legislature thus set up was so entirely without the 
moral support and respect of the people that it was in great danger of falling to pieces 
unless it could get the further support of the Federal administration backed by a larger 
military force. So well was this understood that Pinchback and United States officials 
at New Orleans kept the telegraph busy calling on the President for help and additional 
forces. The two batteries and eighty-six men under Captain Jackson were not deemed 
sufficient to protect Pinchback and his legislature from the just indignation of an out¬ 
raged people. Hence the cries for help which were continually beinir sent to Washing¬ 
ton. The following are specimens of some of these cries: 


[Telegram.] 


New Orleans, La., December 11 , 1872. 

Hon. Geo. H. Williams, Attorney-General: 

I have the honor to acknowledge the receipt of your dispatch. May I suggest that 
the commanding general be authorized to furnish troops upon my requisition upon him 
for the protection of the legislature and the gubernatorial office? The moral effect 
would be great, and in my judgment tend greatly to allay any trouble likely to grow 
out of the recent inflammatory proclamation of Warmoth. I beg you to believe that I 
will act in all things with discretion. 

P. B. S. PINCHBACK, 
Lieutenant-Governor , Acting Governor. 


[Telegram.] 


New Orleans, December 11, 1872. 

President Grant: 

Parties interested in the success of the Democratic party, particularly the New Or¬ 
leans Times, are making desperate efforts to array the people against us. Old citizens 
are dragooned into an opposition they do not feel, and pressure is hourly growing: our 
members are poor and adversaries are rich, and offers are made that are difficult for 
them to withstand. There is danger that they will break our quorum. The delay in 
placing troops at disposal of Governor Pinchback, in accordance with joint resolution of 



521 


THE LOUISIANA CASES, 1873-80. 

Monday, is disheartening our friends and cheering our enemies. If requisition of legis¬ 
lature is complied with all difficulty will be dissipated, the party saved, and everything 
go on smoothly. If this is done the tide will be turned at once in our favor. The real 
underlying sentiment is with us if it can but be encouraged, Governor Pinchback acting 
with great discretion, as is the legislature, and they will so continue. 

JAS. F. CASEY, 

Collector. 


[Telegram.] 


New Orleans, 11, 1872. 

Hon. Geo. Williams: 

If President in some way indicate recognition, Governor Pinchback and legislature 
would settle everything. Our friends here acting discreetly. 

W. P. KELLOGG. 


[Telegram.] 


New Orleans, 11, 1872. 

President Grant: 

Democratic members of the legislature taking their seats. Most, if not all, will so in 
next few days. Important that you immediately recognize Governor Pinchback’s legis¬ 
lature in some manner, either by instructing General Emory to comply with any requi¬ 
sition by Governor Pinchback, under joint resolution of legislature of Monday, or other¬ 
wise. This would quiet matters much. I earnestly urge this and ask a reply. 

JAMES F. CASEY. 


[Telegram.] 


New Orleans, December 12,1872. 

President Grant: 

The condition of affairs is this: The United States circuit court has decided which is 
the legal board of canvassers. Upon the basis of that decision a legislature has been 
organized in strict conformity with the laws of the State, Warmoth impeached, and thus 
Pinchback, as provided by the constitution, became acting governor. The chief-justice 
of the supreme court organized the senate into a court of impeachment, and Associate 
Justice Tallifeiro administered oath to Governor Pinchback. The legislature, fully or¬ 
ganized, has proceeded in regular routine of business since Monday. Notwithstanding 
this, Warmoth has organized a pretended legislature, and it is proceeding with pretended 
legislation. A conflict between these two organizations may at any time occur. A con¬ 
flict may occur at any hour, and in my opinion there is no safety for the legal government, 
without the Federal troops are given in compliance with the requisition of the legislature. 
The supreme court is known to be in sympathy with the Republican State government. 
If a decided recognition of Governor Pinchback and the legal legislature were made, in 
my judgment it would settle the whole matter. General Longstreet has been appointed 
by Governor Pinchback as adjutant-general of State militia. 

JAMES F. CASEY. 

In reply to these appeals for help the Attorney-General answered as follows: 

[Telegram.] 

Department of Justice, December 12, 1872. 

Acting Governor Pinchback, 

New Orleans , Louisiana: 

Let it be understood that you are recognized by the President as the lawful executive 
of Louisiana, and that the body assembled at Mechanics’ Institute is the lawful legisla¬ 
ture of the State, and it is suggested that you make proclamation to that effect, and also 
that all necessary assistance will be given to you and the legislature herein recognized 
to protect the State from disorder and violence. 

GEO. H. WILLIAMS. 

A ttorney-General. 





522 


SENATE ELECTION CASES. 


The following telegrams were sent to the President by the friends of the State govern 
ment which was being subverted: 


[Telegram.] 


New Orleans, December 11, 1872. 

The President of the United States: 

Under an order from the judge of the United States district court, investing James 
Longstreet, Jacob Hawkins, and others with the powers and duties of returning officers 
under the State election law, and charging them with the duty of completing the legal 
returns and declaring the result in accordance therewith, those persons have promulgated 
results based upon no returns whatever, and no evidence except ex parte statements. 
They have constructed a pretended general assembly, composed mainly of candidates 
defeated at the election, and those candidates, protected by United States military forces, 
h ive taken possession of the State-house and have organized a pretended legislature, 
which to-day has passed pretended articles of impeachment against the governor; in 
pursuance of which, the person claiming to be a lieutenant-governor, but whose term had 
expired, proclaimed himself acting governor, broke into the executive office under the 
protection of United States soldiers, and took possession of the archives. In the mean 
time the general assembly has met at the city hall, and organized for business with sixty 
members in the house and twenty-one in the senate, being more than a quorum of both 
bodies. I ask and believe that no violent action be taken, and no force used by the Gov¬ 
ernment, at least until the supreme court shall have passed final judgment on the case. 
A full statement of the facts will be laid before you and the Congress in a few days. 

H. C. WARMOTH, 

Governor of Louisiana. 


[Telegram.] 


New Orleans, 12 th , 1872. 

His Excellency U. S. Grant, 

President United States: 

Claiming to be governor-elect of this State, I beg you, in the name of all justice, to 
suspend recognition of either of the dual governments now in operation here until there 
can be laid before you all facts, and both sides, touching legitimacy of either government. 
The people denying the legitimacy of Pinchback government and its legislature simply 
ask to be heard, through committee of many of our best citizens on eve of departure for 
Washington, before you recognize the one or the other of said governments. I do not 
believe we will be condemned before we are fully heard. 

JNO. McENERY. 


[Telegram.] 


His Excellency U. S. Grant, 

President of the United States: 


New Orleans, December 12,1872. 


Sir: As chairman of a committee of citizens appointed under authority of a mass-meet¬ 
ing recently held in this city, I am instructed to inform you that said committee is about 
leaving here for Washington to lay before you and the Congress of the United States the 
facts of the political difficulties at present existing in this State, and further earnestly to 
request you to delay executive action in the premises until after the arrival and hearing 
of said committee, which is composed of business and professional men without regard 
to past political affiliations. 


THOMAS A. ADAMS, 

Chairman. 


To these respectful appeals on behalf of the legitimate governor and people of Louisi¬ 
ana, asking to be heard before a usurping executive and legislature should be forced 
upon them, the President, through the Attorney-General and War Department, returned 
the following replies: 


THE LOUISIANA CASES, 1873-80. 

[Telegram.! 


523 


Hon. John McEnery, 

Neiv Orleans, Louisiana: 


Department of Justice, December 13, 1872. 


A our visit with a hundred citizens will be unavailing so far as the President is con¬ 
cerned. His decision is made and will not be changed, and the sooner it is acquiesced 
in the sooner good order and peace will be restored. 

GEO. H. WILLIAMS, 

A ttorney- General. 


[Telegram.] 


Washington, December 14,1872. 

General W. H. Emory, U. S. A., 

Commanding New Orleans, Louisiana: 

You may use all necessary force to preserve the peace, and will recognize the authority 
of Governor Pinchback. 

Bv order of the President: 

E. D. TOWNSEND, 

Adjutant- General. 

The history of the world does not furnish a more palpable instance of usurpation than 
that by which Pinchback was made governor and the persons returned by the Lynch 
board the legislature of Louisiana; nor can a parallel be found for the unfeeling and des¬ 
potic answers sent by order of the President to the respectful appeals of the people of 
Louisiana. This pretended legislature, installed in power by the aid of the United States 
Army, in pursuance of a void order of a United States district judge, proceeded to elect 
John Ray to represent the State of Louisiana in the Senate of the United States; and it is 
said the Senate must receive him because the supreme court of Louisiana has decided 
the Pinchback legislature to be the rightful legislature of the State, and that the Sen¬ 
ate is bound to follow the decision of the State court as to what constitutes its legisla¬ 
ture. 

It is true, as a rule, that the Federal courts follow the decisions of the State courts in 
regard to the construction of their own constitution and laws; but it is not true that the 
legislative department of the Government follows the decisions of the courts upon polit¬ 
ical questions. The inquiry, what is the established government in a State, belongs to 
the political, and not the judicial power. The Senate, by the Constitution, is made the 
sole and only judge of the election of its members,, who can only be chosen by the legis¬ 
latures of the respective States. Ordinarily the body recognized in a State as its legis¬ 
lature would be held by the Senate to be the body authorized to elect a Senator; but 
when, as in the case of Louisiana, there are two bodies in a State, each claiming to be its 
legislature, and each of which has chosen a person to represent the State in the Senate, 
in deciding between the claimants the Senate must necessarily determine which body 
was the rightful legislature and had authority to make the election. 

In view of the facts as shown to exist in Louisiana, the decisions of its courts in favor 
of the validity of the Pinchback legislature are entitled to no respect whatever. As 
has been already shown, that legislature was not elected nor brought into being by the 
people of the State, but owes its existence to the void proceedings of the United States 
court supported by military force. It was the creature of force and fraud. Its first act 
was to impeach and suspend the governor (Warmoth) and install Pinchback in his place. 
It then abolished one court and set up another in its place, and Pinchback appointed 
Hawkins, one of the Lynch returning board, judge of the newly established court. To 
give any consideration to the decisions of the court thus set up would be to aid the 
usurpation. Hawkins counts in spurious members of the legislature; that legislature 
makes a governor, who makes Hawkins judge, and Hawkins then decides the legislature 
to be legal. 

The Morgan case, in which a majority of the supreme court judges went out of the 
record to express opinions upon the legal status of Pinchback as acting governor, and 
the persons acting with him claiming to be a State senate, was commenced before this 
same Judge Hawkins under laws passed by this pretended legislature. As to the invalid¬ 
ity and extraordinary character of those laws, and the shameful proceedings of a majority 
of the members of the supreme court in Morgan’s case, I concur with what is said by 
the majority of the committee in their report. Could anything be more preposterous 
than to give validity to such proceedings? Had the supreme court of the State stood in 



524 


SENATE ELECTION CASES. 


the way of this pretended legislature its judges would no doubt have been summarily 
impeached and suspended, as Governor Warmoth was. That a wholesome fear of such 
proceedings operated upon a majority of the members of that court to make them obse¬ 
quious to the demands of the pretended legislature is inferable from the fact that they 
make haste, in advance of any case coming before them involving the validity of the 
legislature, to make known their sympathy with it, as appears from the following extract 
from the dispatch sent by United States Collector Casey to the President December 12: 
“The supreme court is known to be in sympathy with the Republican State govern¬ 
ment.” 

The proper tribunal to decide between the contending legislatures in Louisiana is the 
Senate of the United States in passing upon the admission of the Senators by them 
respectively chosen. 

The Supreme Court of the United States, in the case of Luther vs. Borden, say: 

“When Senators and Representatives of a State are admitted into the councils of the 
Union, the authority of the Government under which they are appointed, as well as its 
republican character, is recognized by the proper constitutional authority. And its de¬ 
cision is binding on every other department of the Government, and could not be ques¬ 
tioned in a j udicial tribunal. ’ ’ 

The credentials of William L. McMillen are signed by Mr. McEnery as governor of the 
State, with the seal of the State attached. He was elected by what is known as the 
McEnery legislature, which, including Senators holding over, consisted of a quorum in 
each branch of the persons elected according to the official returns as canvassed by the 
DeFeriet board. The result of that canvass was duly proclaimed by Governor Warmoth, 
together with the list of the names of the persons elected to the senate and house of rep¬ 
resentatives, certified by Jack Wharton, who was at the time the acting secretary of state. 
The official returns also show that McEnery was elected governor by some 10,000 
majority. These returns were before the committee, and their tabulation, showing the 
results above stated, were proven to be correct. It is true the members of the McEnery 
legislature did not meet at the time and place fixed in the governor’s proclamation, and 
the facts show that it was out of their power to do so, for the reason that the Mechanics’ 
Institute, in which they were called to assemble, was then occupied by United States 
troops, acting under the orders of a United States marshal in the execution of a void order 
of a United States court, which prohibited their assembling and organizing as a legisla¬ 
ture in said building. The fact that when thus prevented from assembling in the Me¬ 
chanics’ Institute the members got together as soon as practicable in another building 
in the same city and proceeded to organize cannot vitiate their proceedings any more 
than if the Mechanics’ Institute had burned down before the time for assembling had 
arrived. It is difficult to conceive upon what principle McMillen is to be refused his seat, 
unless the election in Louisiana in November last be declared void, and Louisiana to be 
without a State government, propositions to which the undersigned cannot give his assent. 
He believes the DeFeriet board had color of authority at least to make the canvass of the 
returns for the legislature; that Wharton was de facto secretary of state at the time, and 
the proper person to make out the list of members on which the legislature is organized 
according to the laws of the State; but whether this were so or not is not perhaps mate¬ 
rial, because the official returns from the parishes were before us, and we know that the 
results at which the De Feriet board arrived were substantially correct. It is the fact 
that certain persons received a majority of the votes cast; that is of the substance of the 
election. The canvass of the returns is but machinery, and whoever receives a majority 
of the votes polled at an election for an office ought not to be deprived of the benefit of 
it unless in obedience to some positive statute. 

It is, however, said by a majority of the committee that the election of November 4 
was so tainted with fraud as to render it wholly void,, and they recommend the passage 
of a law for holding a new election under the authority of Congress. 

If it were admitted, as it is not, that Congress has authority to inquire into the fair¬ 
ness and regularity of a State election, it is denied that there was any such fraud in the 
late Louisiana election as would justify setting it aside. It was confessedly one of the 
most quiet and peaceful elections ever held in the State, and the evidence shows that it 
was substantially free and fair. 

The vote polled w T as 20,000 larger than ever before cast in the State, and against more 
than two-thirds of it no complaint of unfairness is even alleged. 

S. B. Packard, United States marshal for the district of Louisiana, was chairman of the 
Republican State executive committee, and his office in the custom-house was the head¬ 
quarters of the organization of which he was one, if not the leading spirit. He appointed 
from one to four special deputy marshals in every parish, and upward of six hundred in 
New Orleans, who were to be at the polls. Some of them served for seventy days; and he 
made requisitions on the Attorney-General, previous to the election, for the money to pay 
deputy marshals and Uuited States supervisors. Under the law, one of the two United 


THE LOUISIANA CASES, 1873-80. 


525 


States supervisors appointed by the court is selected from each party, but in appointing 
his special deputies United States Marshal Packard confined himself exclusively to his 
own party, so far as the testimony shows. This United States marshal and chairman of 
the Republican executive committee issued instructions to the Republican United States 
supervisor in each parish in regard to the supervision of the vote for State and local officers, 
but gave no such instructions to the supervisor appointed on the fusion side. With all 
the sources of information which the hundreds of his subordinates scattered through the 
State, and his position as United States marshal and chairman of the State Republican 
executive committee, afforded him, Packard testified before the committee that “ in a 
majority of the parishes, in my judgment, the election was as fair as you usually have it 
in any State election. 

‘ ‘ Rapides and Natchitoches, I should say, were the two worst. Then I would add Madi¬ 
son, Caddo, and Bossier, and East Baton Rouge; a portion of the returns for West Baton 
Rouge. 

‘ ‘ A. These parishes I have named were the worst cases. 

“ Q. Seven of these cases ? 

“A. Yes, sir. There is also the parish of Assumption, which I believe to be a Repub¬ 
lican parish, which went about 700 Republican in 1870, is returned differently. 

“ Q. I want to know about how many there were in which there were notorious charges 
of fraud, such as are not usually made in elections? 

“A. That is the number, or about the number. It would increase the number, per¬ 
haps, ten or fifteen, if I were to add those in which I believed the returns were not in 
accordance with the facts. 7 7 

The State is divided into fifty-six parishes, from only about twenty of which, cofitain- 
ing less than one-third of the population of the State, frauds were even reported, and 
these reports were not supported by the direct testimony of a single witness before the 
committee, unless proof that the places of registration and of voting were established at 
inconvenient places in two or three parishes should be regarded as evidence of fraud. 
The only evidence to sustain the charges of fraud made by the Republicans were the 
opinions of witnesses who took an active part in the election on the Republican side, and 
were disappointed in the result, or ex parte ‘‘affidavits, the statements of supervisors of 
election, appointed under the act of Congress, letters, and verbal statements, 7 7 which 
were laid before and made to the Lynch returning board, and upon which the committee 
have already reported that the Lynch returning board, “with the sort of evidence which 
was before them, had no power under the law of the State to investigate these charges of 
fraud and injury, or act upon their convictions of wrongs that had been suffered. 77 

It was also in evidence before the committee that many of the affidavits before the 
Lynch board for the purpose of proving unfairness in the election, and upon which that 
board acted, were forged, and that others were triplicated. 

No returns were made to the governor, as required by law, from two parishes, and the 
returns were irregular from two others. Informalities also existed in some few other 
parishes or parts of parishes, but not so as to affect the general result, which for State 
officers, according to the official returns, showed an average majority of over 10,000 for the 
fusion ticket. These returns were produced before the committee, and the tabulation as 
contained in the evidence, page 81, proved to be correct. 

It has been said that the colored voters were all Republicans, that the colored popula¬ 
tion of the State outnumbers the whites, and that therefore if the election had been fair 
the Republican ticket must have succeeded; but the census of 1870 shows that there were 
in the State one hundred and fifty-three more white than colored males over twenty-one 
years of age; and it is also in evidence that from eight to ten thousand colored persons 
voted the fusion ticket, while the number of whites who voted the Republican ticket 
is not believed to have exceeded half that number. 

That fraud was practiced in some of the parishes, that irregularities existed in others, 
may be admitted; and still, in the absence of any legitimate evidence to establish those 
frauds, or of any sort of complaint even against the fairness of the election in more than 
two-thirds of the State, the undersigned cannot admit that such a case exists as would 
authorize the interference of Congress with the election in any form, and his conclusion 
is, that by the admission of McMillen to his seat in the Senate, and the recognition 
thereby of the McEnery legislature as the legitimate legislature of the State, the peace of 
Louisiana will be speedily restored, and effect given to the fairly expressed will of her 
people. 

LYMAN TRUMBULL. 


VIEWS OF ME. MOETON. 

Article 46 of the constitution of Louisiana is in the following words: “Returns of all 
elections for members of the general assembly shall be made to the secretary of state.* 7 
This leaves it to the legislature to provide the necessary machinery for the conduct of 
elections and the organization of the new legislature after each election. 


526 


SENATE ELECTION CASES. 


In March, 1870, the necessary machinery was provided in the registration and election 
law; and the latter law requires all returns to be made to the governor, and to be oy him 
laid before the returning board, of which the secretary of state is ex officio a member, 
which shall count the votes, and that the board shall then deposit the returns with the 
secretary of state, as also a copy of their count or finding. 

Article 48 of the constitution provides, in regard to the election of governor and lieu- 
tenant-governor, that 1 ‘ the returns of every election shall be sealed up and transmitted 
by the proper returning officers to the secretary of state, who shall deliver them to the 
speaker of the house of representatives on the second day of the session of the general 
assembly then to be holden. The members of the general assembly shall meet in the house 
of representatives to examine and count the votes. ’ ’ 

In this regard also the law provides a somewhat circuitous route by which the returns 
of the election shall reach the secretary of state, yet apparently with as little objection, 
in a constitutional point of view, as in the case of the members of the general assembly. 
The returns in both cases reach the secretary of state through the governor and the re¬ 
turning board. The constitution provides that the legislature shall count the votes for 
governor and lieutenant-governor, but makes no provision for counting them as to other 
State officers or members of the legislature, and leaving all that machinery to be provided 
by statute. 

The act of 1870 provides for supervisors of registration in the parishes, and commis¬ 
sioners of election to be appointed by the supervisors, and the returns of the election in 
the several parishes to be sent to the governor, to be by him laid before the returning 
board, and by the returning board, together with the result of their finding, deposited 
with the secretary of state. These provisions are held by the courts in Louisiana to be 
a compliance with the constitutional provisions, and I see no objection to them on that 
score. The law makes the governor, with other members of the returning board, ‘ ‘ re¬ 
turning officers” under the constitution, to which I can see no objection. 

For a statement of the facts attending the election on the 4th of November, and the 
counting of the votes, I refer to the preliminary report already made by the Committee 
on Privileges and Elections in regard to the election of Presidential electors. By the 
law of 1870 the governor, lieutenant-governor, secretary of state, and John Lynch and 
T. C. Anderson byname, were constituted a board to count the votes. Lieutenant-Gov¬ 
ernor Pinchback and Mr. Anderson, having been candidates for Congress, were, by a 
provision of the law, prevented from acting on the board, and a struggle arose between 
Governor Warmoth on the one side, and Mr. Lynch, and Herron, the acting secretary of 
state, on the other, to fill the vacancies. The governor attempted to depose Herron by 
appointing Jack Wharton in his place, and claimed that by his vote and Wharton’s they 
had elected F. H. Hatch and Durant Da Ponte to fill the vacancies, while Lynch and 
Herron claimed that by their votes they, had elected James Longstreet and Jacob Haw¬ 
kins. On the next day, the 15th of November, a suit was commenced in the eighth dis¬ 
trict court, before Judge Dibble, in the name of the State, on the relation of Lynch and 
others, to restrain Wharton, Hatch, and Da Ponte from acting as members of the return¬ 
ing board, upon which a preliminary restraining order was granted. On the next day, 
the 16th, a suit was commenced in the same court by Governor Warmoth to restrain 
Herron, Hawkins, and Longstreet from acting as members of the board, upon which a 
like restraining order was granted. Both cases came on for hearing upon the 19th of 
November, when the court decided that Lynch, Herron, Hawkins, Longstreet, and Gov¬ 
ernor Warmoth constituted the legal returning board, dismissed the Warmoth suit, and 
enjoined Wharton, Hatch, and Da Ponte from assuming to act as members of the board. 
Two days afterward Judge Dibble, the clerk, and the sheriff were forcibly ejected from 
the court-room, and Judge Elmore took possession of the bench, having been commis¬ 
sioned that morning as judge by Governor Warmoth, but the votes for whom had never 
been counted by any person having authority. Upon the 3d of December following Judge 
Elmore annulled the judgment rendered by Judge Dibble and dismissed the suit. This 
case was finally appealed to the supreme court of the State, in which it was decided, on 
the 23d day of January, that the legal returning board, on the day when the case was 
decided in the lower court, was composed of Governor Warmoth, John Lynch, F. J. 
Herron (acting secretary of state when the suit was commenced), James Longstreet, and 
Jacob Hawkins; that Governor Warmoth had no power to remove Herron and appoint 
Wharton secretary of state; and that Wharton, Hatch, and Da Ponte had no authority 
whatever. 

On the 16th of November, Kellogg, who claimed to have been elected governor, com¬ 
menced a suit in the circuit court of the United States before Judge Durell, for the osten¬ 
sible purpose of perpetuating testimony, in which he alleged that he had been a candidate 
for governor before the election, and had been deprived of the office by the wrongful de¬ 
nial of the right to vote of 10,000 persons on account of their race, color, and previous con¬ 
dition of servitude. Upon the filing of the bill Judge Durell granted an order restraining 


THE LOUISIANA CASES, 1873-80. 


527 


Wharton, Hatch, and Da Ponte from acting as members of the returning board, opening 
and counting the votes, or in any way meddling with the election returns. On the 6th 
of December he decided the case, holding that Lynch, Hawkins, Longstreet, and Bovee, 
secretary of state, together with Governor Warmoth, constituted the legal returning 
board, and enjoining Wharton, Hatch, and Da Ponte from assuming to act as members 
thereof. On the day previous he had issued an order to the United States marshal to 
take possession of the State-house, and prevent any illegal assemblage, which the mar¬ 
shal executed by summoning as a posse comitatus a detachment of United States troops. 
On the 6th of December, Armstead, who claimed to have been elected secretary of state, 
commenced a suit before Judge Elmore to restrain the members of the Lynch board from 
counting the votes and making returns in the absence of the official returns of the elec¬ 
tion. The restraining order was granted, but the case was removed the next day to the 
circuit court of the United States by certiorari. On the 7th of December, Antoine, who 
claimed to have been elected lieutenant-governor on the same ticket with Kellogg, com¬ 
menced suit in the circuit court of the United States, upon which Judge Durell granted 
an order restraining all persons from taking partin organizing the legislature whose names 
were not on the lists issued by the secretary of state, and returned as elected by tl e 
Lynch board. 

In the month of March, 1872, the legislature passed a new election act, which assumed 
to abolish the returning board, as created by the law of 1870, and authorized the State 
senate to elect a board of five from outside of its own members, which act Governor War- 
moth kept in his possession without signing until the 20th of November, and then signed 
and published it as a law; but the supreme court of the State, in the case before referred 
to, decided that this law did not have the effect to abolish the returning board, as created 
by the law of 1870, until after the returns for the election of 1872, which had been held 
before the bill was signed, had been counted and the new legislature organized. On the 
21st of November, Governor Warmoth, assuming that the act he had signed the day 
before had abolished the returning board as created by the law of 1870, and that he had 
power under the constitution to fill vacancies, appointed Mr. De Feriet and four other 
persons to act as a returning board, to count the votes for State officers and members of 
the legislature. He placed in their hands for that purpose what purported to be the 
official returns of the election, upon which they proceeded to count the votes and make 
proclamation of their finding as to members of the legislature. 

Mr. Bovee was elected secretary of state in 1868, to hold his office for the same term as 
the governor, and until the meeting of the regular session of the legislature in 1873. On 
the 21st day of August, 1871, Governor Warmoth assumed the power to suspend Mr. 
Bovee from office and appoint in his stead F. J. Herron as acting secretary of state dur¬ 
ing the suspension of Mr. Bovee. In March, 1872, Mr. Bovee commenced a suit to as¬ 
sert his title to the office, which was appealed to the supreme court, and decided in his 
favor on the 2d December, 1872; but he was not restored to the actual possession of the 
office until the 6th December. 

On the 20th day of November, in the exercise of the power reposed in him by the con¬ 
stitution, Governor Warmoth issued a proclamation convening the legislature in extra ses¬ 
sion on the 9th of December, at the Mechanics’ Institute, in the city of New Orleans, then 
used and known as the State-house. By the law the house consisted of one hundred and 
eight members and the senate of thirty-six members, and, under the construction of 
the clause in the constitution in regard to a quorum, it was held that it required a ma¬ 
jority of the whole number of which each house should properly consist to constitute a 
quorum; that is, 55in the house, and 19 in the senate. 

The members of the house held their office for two years, and of the senate for four 
years; one-half of the senate to be elected every two years. Owing to several causes there 
were but fifteen senators left of those holding over from the election in 1870, and twenty- 
one were to have been elected at the late election. Mr. Pinchback, who had been 
elected a senator in 1868, and whose time would expire on the 4th November, 1872, had, 
on the death of Lieutenant-Governor Dvmn, in December, 1871, been elected president 
of the senate and lieutenant-governor of the State in accordance with the law. 

The act to provide for filling a vacancy in the office of lieutenant-governor is in these 
words: “In case of vacancy in the office of governor the lieutenant-governor shall be gov¬ 
ernor; in case of vacancy in the office of lieutenant-governor the senate shall elect a pres¬ 
ident, who shall be lieutenant-governor.”—(Sec. 1580 rev. stat., act of 1865.) 

There was a dispute in regard to the character of his office, it being held by one party 
that he was only acting lieutenant-governor by his election as president of the senate, 
and by the other that he actually became lieutenant-governor, and would continue to 
hold that office after his term as senator had expired. It is not necessary to go into this 
question, as it has since been decided by the supreme court of the State that, by such 
election, Mr. Pinchback became lieutenant-governor, and his office as such did not ex¬ 
pire with his term of senator; that he continued legally to perform the duties of lieu ten- 


528 


SENATE ELECTION CASES. 


ant-governor up to the period when the term of Lieutenant-Governor Dunn would have 
expired had he lived. 

By the law of the State the legislature was to be organized by the secretary of the sen¬ 
ate and the clerk of the house of representatives of the last legislature. The secretary 
of state is directed to furnish to those officers a list of the members of the senate and of 
the house returned as elected by the legal returning board, and no person is entitled to 
take a seat in either house whose name is not found upon such list. 

On the day fixed for the meeting of the legislature in extra session, Governor Pinch- 
back appeared in the senate, took the chair and proceeded to the organization of that 
body. The secretary of the last senate produced a list from- the secretary of state of the 
newly elected senators, and fourteen appeared and were sworn in; two others appeared the 
next day, and were admitted to their seats upon taking the oath; and these with four¬ 
teen of the senators holding over made thirty present on the second day. Of the sixteen 
new senators, seven were returned by both the Lynch and De Feriet boards, and about 
their election there was no dispute. Four others were returned by the Lynch board 
from strong Republican districts, in which the regular official returns had been thrown 
out by the De Feriet board, in whole or in part, and about whose actual election by the 
votes cast there can hardly be any dispute. 

The house of representatives was organized by the clerk of the last house, who had a 
list of the members from the secretary of state returned as elected by the Lynch board; 
and representatives thus returned as elected appeared and were sworn in to the number 
of seventy-six. Of this number, forty-five were returned as elected by both the Lynch 
and De Feriet boards, and about their election there is no dispute, leaving thirty-one 
who were returned by the Lynch board only, whose election was disputed by the De 
Feriet board. 

The house then proceeded to the election of a speaker and other officers, and the two 
bodies were declared to be duly organized according to law. 

Within three days after this eleven members seceded from the house, and six members 
from the senate, who proceeded to Lyceum Hall, and there, in connection with a num¬ 
ber of persons who had been returned by the De Feriet board, attempted to organize a 
new legislature, which we will disignate as the ‘ £ McEnery legislature. ’ ’ This pretended 
legislature was organized by the admission of persons who were not returned as elected 
by any person having authority, and in the absence of those lists of elected members to be 
issued by the secretary of state as expressly required by the law. It did not meet until 
three days after the time fixed in the governor’s proclamation for the assembling of the 
legislature, norat the place fixed in that proclamation; and it has no semblance of legal 
authority in any respect, but rests entirely upon the unauthorized and unofficial decla¬ 
rations that the persons composing it were elected at the election on the 4th of Novem¬ 
ber last. 

But I do not think it necessary to pursue its history any further, as in my opinion it 
could not under any circumstances come to be regarded as the legal legislature of the 
State. If, after the legal organization of the Senate and House of Representatives of the 
United States at the beginning of a new Congress, even a majority of the lawfully elected 
members of each body should secede from it and go to the city hall and there attempt 
to organize a new Congress, it will not be pretended that such new organization could 
legally become the Congress of the United States. By such act they might disable either 
House from doing business; but it would be absurd to say that the new one could be 
received as the legal Congress. The proposition that, after a legislature has been com¬ 
pletely organized, it is in the power of seceding members to form a new one which, in 
contemplation of law, can take the place of the first, is so manifestly unreasonable that 
I dismiss the claim of the McEnery legislature from further consideration. 

After the legislature became duly organized, as already stated, it was invested with 
power expressly conferred by the constitution of Louisiana to determine the qualifications 
and elections of its own members. This is in its nature an exclusive power. One house 
cannot divide it with the other, nor can the exercise of it be controlled by courts. From 
that time each house has the exclusive control over its membership, whether in the re¬ 
tention of old members or in the admission of new ones. If in the original organization 
a number of persons were admitted as members who had not been legally elected, but 
whose names were on the list of persons furnished by the secretary of state returned as 
elected by the proper returning board, their seats were liable to contest, and such contest 
could only be determined by the house of which they claimed to be members; and under 
no circumstance could a court inquire into the expulsion of a member of either house or 
the admission of a new one. Such a power has never been recognized in any State or 
by any Federal court in regard to Congress. If a quorum in each house, who were on 
the list furnished by the secretary of state as having been returned as elected by the 
legal returning board, take their seats and proceed to the work of organization, such 
organization must in contemplation of law be held to be legal. 


529 


THE LOUISIANA CASES, 1873-80. 

The action of Congress in regard to Georgia is no exception to this principle. That 
was put upon the ground that Georgia had not been fully reconstructed, and that the 
fundamental conditions upon which reconstruction was to take place, as prescribed by 
Congress, had been violated before the work of reconstruction had been completed. But 
this precedent will not apply to the case of any State which has been fully received into 
the Union and occupies the situation of other States. This principle that each house 
has the exclusive jurisdiction over all questions touching the election and qualification 
of its members, and is to determine for itself whether a lawful quorum is present to do 
business, is so well established that it has been holden by the courts in all the States in 
which the question has arisen, as well as by the Supreme Court of the United States, 
that the validity of a statute cannot be impeached by a plea that members took part in 
its enactment who were not lawfully elected, or that it was passed in the absence of a 
lawful quorum, or that its enactment was procured by bribery, or attended by other 
gross irregularity. 

After the organization of the two houses was completed, the house of representatives 
passed a resolution impeaching Governor Warmoth of high crimes and misdemeanors, of 
which the senate was notified, and then a joint resolution was passed by both houses 
suspending him from office pending the trial. This devolved the duties of governor, 
under the constitution, upon Lieutenant-Governor Pincliback. Early in December, 
Lieutenant-Governor Pinchback, acting as governor, nominated to the senate for con¬ 
firmation P. H. Morgan for associate justice of the supreme court to fill the vacancy 
occasioned by the resignation of W. W. Howe. The nomination was confirmed; but J. 
H. Kennard, who had been previously appointed by Governor Warmoth to fill the 
vacancy occasioned by the resignation of Howe and not confirmed by the senate, refused 
to surrender his seat, and a proceeding was instituted by Morgan to get possession of the 
office, which was carried by appeal to the supreme court, and on the 31st day of January 
the supreme court decided that Pinchback was lieutenant-governor, and by the impeach¬ 
ment of Governor Warmoth was legally acting as governor; that his nomination of 
Morgan to the senate for associate j ustice was in accordance with law; that the senate 
by which Morgan was confirmed was the legal senate of Louisiana, and that Morgan 
was entitled to take his seat upon the bench. The legislature during its extra session, 
which terminated on the 6th of January, passed a number of laws of a general character, 
which went into operation and were recognized by the courts as being the laws of the 
Slate, and among them one abolishing the seventh and eight district courts and creating 
the superior district court of New Orleans, which court was duly organized and is in 
the active discharge of its duties. A few minutes after the adjournment of the extra 
session the regular session began, as provided by the constitution of the State, and the 
legislature proceeded to the business of the session. 

Under the laws of Louisiana the life-time of a legislature, like that of a Congress, is 
two years, and when once it is organized that organization extends throughout the 
period. The organization at the beginning of the extra session rendered any subsequent 
one unnecessary, and at the opening of the regular session the members who had been 
admitted at the extra session appeared and took their seats without further qualification, 
and by the rules the unfinished business of the extra session was continued in the reg¬ 
ular session as if no interregnum had taken place. Should the President convene an 
extra session of Congress in the month of March, the organization of the House of Rep¬ 
resentatives then made would continue through the Congress just as if it was made at 
the beginning of the regular session. 

On the 14th of January, an act was passed to promote the speedy trial of contests for 
judicial offices, the validity of which came before the supreme court in the case of Mor¬ 
gan vs. Kennard, and in regard to which the court held that while they could not deter¬ 
mine judicially the persons who composed the legislature, yet that they could take 
judicial notice of the body constituting the legal legislature, and that the law in ques¬ 
tion was passed by the legal legislature. This legislature has continued in session up 
to this time engaged in general and special legislation, the validity of which is recog¬ 
nized by all the courts of the State and generally by the people. 

Louisiana has a constitution which has been ratified by the people; a code of laws 
enacted by her legislature from time to time; a general system and body of law which 
is recognized and administered by her courts; a supreme court in full operation, district 
and subordinate courts discharging their duties without obstruction in every part of the 
State. She has her full complement of parish and local officers, who are performing 
their duties without resistance or interruption. She has a legislature which was organ¬ 
ized under the forms of law, the members of which were declared elected by a tribunal 
which has been pronounced by the supreme court the lawful one for that purpose, and 
this legislature has been expressly recognized by the supreme court as being the lawful 
legislature. She has an acting governor who has been declared elected by the legislature 
and installed in office under the forms of law. It cannot be said, therefore, that Lou- 

S. Doc. 11-34 



530 


SENATE ELECTION CASES. 


isiana has not a State government, and that the government is not in all outward as- 
spects legal and normal. 

The late insurrectionary States at the end of the war were without governments of 
any kind. They were without governors, legislatures, courts, State or subordinate offi¬ 
cers; and the United States had the power to provide for the reconstruction of the State 
governments, and it was their duty to do so. The broad difference between the condi¬ 
tion of Louisiana at present and the insurrectionary States at the end of the war must 
be comprehended by all. The interference of the United States at that time, and under¬ 
taking the work of reconstruction, was a constitutional and political necessity. The 
Constitution declares that the United States shall guarantee to each State a republican 
form of government, and, by generally received construction, this does not limit the 
power of Congress to a mere inquiry as to the form, but it is construed to mean as if it read, 
“the United States shall guarantee to each State a government, republican in its form.. ” 
Where there are two rival governments in a State, Congress must first ascertain which is 
the legal government before it can determine the question whether it is republican in 
form; and if there be no legal actual government, it is impossible that it should be repub¬ 
lican in form. But it is not every irregularity in a State government that will destroy 
its existence or impair its republican or legal character. A State government consists 
of too many constituent parts to say that the absence of the governor or the presence of 
a fraudulent one will destroy its existence, and the Constitution and laws have provided 
the machinery by which the intruder may be expelled and the lawful governor put in 
his place. Should the legislature be broken up by the secession or resignation of a maj ority 
of its members leaving it without a quorum—which has happened in many of the 
States—that would not destroy the existence of a State government; or, if it be irregu¬ 
larly or fraudulently organized by the admission of persons as members who were not 
elected, it could not be said to have destroyed the existence of the State government. It 
is hardly necessary to consider how many of the constituent parts of a State government 
must disappear before the government ceases to exist. The presence of governors and 
State officers who secured their offices by fraud has occurred many times in our political 
history, and has never been held to have destroyed the existence of a State government 
or its legal character. And we know that there have been numerous instances where 
State legislatures have been broken up by the resignation of members, or by what is 
commonly called “ bolting, ” and yet it was never claimed that such a result destroyed 
the State government or took away its legal character. 

The theory of our system is that every State government possesses the power and ma¬ 
chinery to correct the wrongs and frauds within itself, practiced under color of or in open 
violation of its own laws, and that the decision of its own tribunals, created by its con¬ 
stitution and laws for such purpose, must be received as final. When the constitution 
of a State provides that each house of its legislature shall be the judge of its election 
and qualification of its members, full faith and credit must be given to their action; and 
should the Government of the United States go behind their action to inquire whether 
the members have been lawfully elected to the legislature, their independence would be 
wholly destroyed and the validity of their action made to depend upon the will of Con¬ 
gress. So, when the laws of a State have constitutionally created a returning board to 
ascertain who are elected State officers and members of the legislature, if Congress may 
go behind the decision of that board and inquire whether they had the returns before 
them, and whether they were acting in accordance with the laws of the State, the elec¬ 
tion of State officers and members of the legislature would be placed absolutely under 
the control of Congress. 

The Constitution says that “the Senate of the United States shall be composed of two 
Senators from each State, chosen by the legislature thereof, for six years. ’ ’ The manner of 
constituting the legislature is left absolutely to each State, and the question of its organiza¬ 
tion must be left to be decided by such tribunals or regulations as are provided by the con- 
stitutionand laws of the State; and the only question about which the Senate may inquire 
in determining the admission of Senators is whether they have been chosen by the legisla¬ 
ture of the State—that legislature recognized by the State, or whose organization has been 
accepted by other departments of the State government. Under our complex system of 
government all questions of the organization of State governments, under their own laws, 
must be left to the decision of the tribunals in such States created for that purpose • 
and when such decisions have been made they must be accepted by the Government of 
the United States in their dealings with such States. It is no answer to this to say that 
in a particular case such tribunals will or have decided wrongfully. The Government 
of the United States has no right to review their decisions so long as the State possesses 
a government republican in its form. 

The doctrine that all questions of election arising exclusively under the constitution 
and laws of a State must be left to the settlement and determination of the proper tribu¬ 
nals created by the State for the adjustment of such matters, was distinctly recognized 


THE LOUISIANA CASES, 1873-80. 


531 


by the Supreme Court of the United States in the celebrated case of Luther vs. Borden, 
growing out oi the attempt in the State of Rhode Island to overturn the old charter 
government and establish a new one in its stead. In that case the Supreme Court said: 

“The point, then, raised here has been already decided by the courts of Rhode Island. 
The question relates altogether to the constitution and laws of the State; and the well- 
settled rule in this court is that the courts of the United States adopt and follow the 
decisions of the State courts in questions which concern merely the constitution and 
laws of a State. Upon what ground could the circuit court of the United States, which 
tried this case, have departed from this rule and disregarded and overruled the decision 
ot the courts of Rhode Island? Undoubtedly the courts of the United States have cer¬ 
tain powers under the Constitution and laws of the United States which do not belong 
to the State courts. But the power of determining that a State government has been law¬ 
fully established, which the courts of the State disown and repudiate, is not one of them. 
Upon such a question the courts of the United States are bound to follow the decisions 
of the State tribunals.” 

But the reason for the rule in Luther vs. Borden is much stronger in this case than in 
that. In that case there was an attempt to set up a new constitution over the old char¬ 
ter under which it was claimed that a new government had been organized throughout, 
involving a new supreme court, as well as legislature and State officers. But in Louisi¬ 
ana there is but one constitution, and but one supreme court, which is recognized by all 
parties, and no attempt made to set up another in its stead, and the only question is as 
to who were elected State officers and members of the legislature under the recognized 
constitution and laws of the State, of which the supreme court must necessarily be the 
final arbiter. 

There is no impeachment of the supreme court of Louisiana presented to the committee 
or to the country. All its members but one were placed upon the bench in 1868, before 
the present troubles arose, and hold their office for four years longer; and although im¬ 
putations have been cast upon its action, I know of no foundation for them, and it is not 
legitimate for Congress to make an inquiry into its motives. The power and duty con¬ 
ferred upon the United States by the fourth article to guarantee to every State in the 
Union a republican form of government is political in its character, and not subject to 
revision by the judiciary; but when, upon inquiry, it is ascertained that a State has an 
existing government in active operation, which is not obstructed by violence, in which 
each department is mutually recognized by the other, and which is republican in its 
form, there is no foundation for the interference of Congress, and no condition to which 
its power can attach; and although its officers may have been elected by fraud or installed 
without election, yet all questions in relation to them must necessarily arise under the 
constitution and laws of the State, and, under the decision in Luther vs. Borden, be re¬ 
ferred for determination to the tribunal of the State. 

This whole affair, on both sides, is unfortunate and painful, and if Congress could, 
without exercising a dangerous power and establishing a perilous precedent, set aside 
the election and provide for a new one, with security that it should be fair, it would be 
far more satisfactory to the people of the whole nation. Murder is the highest crime; 
but it is not every court that has jurisdiction to punish it; and one court cannot assume 
such jurisdiction upon the ground that another, to which it has been granted, will not 
properly exercise it; and Congress has not the jurisdiction to examine and redress every 
great wrong that may take place in a State. Where, by the constitution and laws of a 
State, legal remedies are provided for the redress of all wrongs that may take place in 
regard to elections, it would be inconsistent with the independence and integrity of the 
State governments for the United States to interfere and assume jurisdiction upon the 
ground that the State tribunals have acted wrongfully and fraudulently, or will so act. 
The Government of the United States is not a Don Quixote, going forth to hunt up and 
redress all the wrongs that may be inflicted upon the people in any part of the country; 
but is a Government limited and restrained in its jurisdiction by the charter of its crea¬ 
tion, and that charter distinctly recognizes the existence of State governments to be con¬ 
stituted legally by the States themselves, subject only to the provision of the higher law 
that they shall be republican in form. This doctrine in no wise recognizes the blood¬ 
stained theory of State sovereignty, which has been the evil spirit in our political system, 
and to which the present troubles in Louisiana may be traced back, but springs from the 
great fact that the States have a vast body of rights distinctly guaranteed and recognized 
by the Constitution of the United States, and that among these is the right to constitute 
their own legislatures, and determine by their own tribunals the legality of their organi¬ 
zation. 

This great power to guarantee to each State a republican form of government is intended 
only for the highest and most solemn occasions. If it is invoked for every disorder in a 
State, it must result in the absorption of the State governments and subvert the whole 
theory and plan of our political institutions. While we are a nation, in which alone the 


532 


SENATE ELECTION CASES. 


sovereignty resides, yet local self-governments which preceded the Constitution, and are 
recognized and continued by it as a part of the great plan of political salvation, are in¬ 
dispensable to our liberty, progress, and happiness, and must be preserved, it should 
be exercised only upon well-defined principles, in cases coming clearly within their limits, 
and with all the more caution because it is political in its character, and the use or abuse 
of it cannot be reviewed by the courts. While it would be imprudent to attempt to 
define the cases that come within its scope, it may be safely said that it does not com¬ 
prehend a disorder in a State arising under its own constitution and laws, for which those 
laws provide remedies, a State in which there is profound peace, and in which the State 
government is republican in its form, and discharging its functions in every department 
without interruption. Even in cases that come within its scope it should not be exer¬ 
cised except in the last resort, and -the States should be left to work out their own relief 
and reformation as long as there is any hope. 

There is a government in Louisiana. In all outward aspects it is legal and normal. 
Profound peace prevails throughout the State. The government, through the courts and 
through its legislature and administrative officers, is operating without interruption or 
hindrance. Should Congress determine to undertake the work of reconstruction, it must 
first overturn an actually existing government which is republican in its form. 

The conduct of Judge Durell, sitting in the circuit court of the United States, cannot 
be justified or defended. He grossly exceeded his jurisdiction, and assumed the exercise 
of powers to which he could lay no claim. The only authority he had in the matter grew 
out of the act of Congress of 1870 to enforce the fifteenth amendment, and the act amend¬ 
atory of that, passed in 1871, which gave to the courts of the United States jurisdiction 
in all cases in law and equity arising under the former act. Under the first act two 
classes of cases might arise: First, actions to enforce the rights of those who had been 
illegally denied the right to vote upon the ground of race, color, or previous condition of 
servitude; and second, actions to enforce the rights of those who had been deprived of 
office by reason of the denial to persons of the right to vote on account of race, color, or 
previous condition of servitude; and suits in equity ancillary or in aid of these rights 
of action would come within the jurisdiction of the circuit court of the United States, 
among which would be a suit to perpetuate testimony. But the pretense that in a suit 
to perpetuate testimony the court could go beyond the natural and reasonable jurisdic¬ 
tion to decide who constituted the legal returning board under the laws of Louisiana, 
and to enforce the rights of such as it might determine to be members of that board, and 
to enjoin others who were not, is without any foundation in law or logic. 

In the Antoine case Judge Durell not only assumed to determine who constituted the 
legal returning board, but to prescribe who should be permitted to take part in the organi¬ 
zation of the legislature and to enjoin all persons from taking part in such organization 
who were not returned by the Lynch board as elected; and this assumption of jurisdic¬ 
tion was made in the face of the express provision in the act of 1870 that its benefits 
should not extend to candidates for electors, for Congress, or for the State legislature. 
His order issued in the Kellogg case to the United States marshal to take possession of 
the State-house for the purpose of preventing unlawful assemblages, under which the 
marshal called to his aid a portion of the Army of the United States as a posse comitatus, 
can only be characterized as a gross usurpation. 

It was not for the United States marshal or for the President to review the decisions 
and order of Judge Durell, and determine whether he had exceeded his jurisdiction. By 
the tenth section of the act of 1870, under which Judge Durell had assumed jurisdiction 
in the case, it is declared to “be the duty of all marshals and deputy marshals to aid 
and execute all warrants and precepts issued under the provisions of this act when to 
them directed;” and that they “shall have authority to summon and call to their aid 
the bystanders or posse comitatus of the proper county, or such portion of the land or naval 
forces of the United States, or of the militia, as may be necessary to the performance of 
the duty with which they are charged.” 

Under this authority the United States marshal called upon the general in command 
of the United States troops at New Orleans for a detachment to aid him in the enforce¬ 
ment of the orders and decree of the court, which demand was complied with. 

The Constitution enjoins the President to “take care that the laws be faithfully exe¬ 
cuted,” and this involves the enforcement of the orders, decrees, and judgments of the 
courts of the United States. But by the provisions of the act of 1870 it would seem 
that the United States marshal has a right to summon upon the instant a portion of the 
land or naval forces of the United States, without previous authority from the President 
to enforce the orders or precepts of the courts. 

But conceding all the facts in regard to Judge Durell, the question arises how they 
affect the legal rights of the parties, and the actual status of the Kellogg government. 
The Lynch returning board has been decided by the supreme court of the State to be the 
legal one, and the other boards, known as the Wharton, the De Feriet, and the Forman 


533 


THE LOUISIANA CASES, 1873-80. 

boards, to have been without any authority whatever. Has the legal character of that 
board been impaired or vitiated by the illegal interference of Judge Durell? Conceding 
that interference to have been in every way wrongful, would it have the effect to vitiate 
the title of the Lynch returning board, as determined by the supreme court of the State? 
I think not. A title which the highest legal tribunal has declared to be good is not im¬ 
paired by unlawful interference, even by violence in its support. And the case stands 
thus: That the circuit court of the United States has unlawfully interfered to do certain 
things which the highest tribunal of the State decides to be lawful and proper in them¬ 
selves. The supreme court of the State having held that the legislature was the lawful 
one which was organized by the admission of such persons only as were returned by the 
Lynch board as elected members, is the legality of that organization affected by the fact 
that the circuit court of the United States interfered to prevent the organization of a 
legislature by persons who were not returned as elected by the Lynch board ? If an 
officer in the performance of his duty were aided by a mob, the performance would not 
be made illegal by the presence and co-operation of an unlawful assemblage. 

The Kellogg government is a fact, and its legality is sustained by the judicial tribu¬ 
nals of the State, and it is in active operation in all its departments without actual resist¬ 
ance anywhere. The McEnery government exists only on paper. McEnery and all 
those claiming office under it have never been returned as elected by any person having 
authority under the laws of Louisiana. 

Every offense complained of on either side in this case was against the constitution 
and laws of Louisiana, and the question now presented broadly is whether the Congress 
of the United States shall interfere to correct violations of the laws of the State and to 
redress wrongs for which redress is provided by the State tribunals. 

In the report of the majority of the committee it is alleged that the election on the 4th 
of November was so grossly fraudulent as to make it void; that if it had been fair, Kel¬ 
logg and the other candidates on the Republican ticket would have been elected by a 
large majority. Without concurring in the opinion that the election was void, I enter¬ 
tain no doubt that it was an organized fraud of the largest dimensions, and that a decided 
majority of .the people of Louisiana sympathize with the Kellogg government and ear¬ 
nestly desire to see it maintained. 

Should Congress declare that Louisiana has no legal State government and provide by 
law for a new election, it would establish a precedent for overturning State governments 
and setting up new ones under which the government of every State would be at the 
mercy of Congress as controlled by the passions or exigency of parties. 

Deploring this condition of things in Louisiana, and earnestly hoping that the people 
will take warning, and with one accord insist upon honest elections and the faithful 
observance of the laws, it is my deliberate judgment that it is better for them to bear 
the ills they have and seek reformation and relief under their own laws and tribunals 
than to invoke the National Government to the assertion of a power under which State 
governments would exist hereafter only by sufferance. 

VIEWS OF ME. HILL. 

Assenting as I do in the main to the correctness of the statement of facts touching 
the recent election in the State of Louisiana, and the history of the legal proceedings 
connected therewith, as set forth in the report of the committee, and commending the 
just though severe criticisms of a judicial tribunal for its improper intervention, I am 
still of opinion that the remedy for existing evils proposed by the committee is of ques¬ 
tionable expediency and not the most effectual method of restoring order and quiet to a 
distracted community. 

While it must be conceded that the election in certain parishes was not conducted with 
entire fairness, and in others frauds were committed, it is nevertheless true, according 
to the evidence before the committee, that on the whole the election was as fair and 
certainly as peaceable as the people of Louisiana are accustomed to hold. Irregularities 
and frauds in State elections, unfortunately, are not of rare occurrence beyond the limits 
of Louisiana. The intervention of a judge without jurisdiction of the cause presented 
to him prevented the counting of the election returns according to the forms of law. As 
it is, there has been no legal count of the returns. 

No one doubts but that for the interposition of a judge of the United States district 
court the returns of the election would have been counted by a board of canvassers under 
the laws of the State, and that a result would have been reached, at least, with all the 
appearances of regularity in which a majority of the people would have acquiesced. 
Shall the unauthorized act of this official, condemned as it is by all legal minds, be per¬ 
mitted of itself to reverse the expressed will of a majority of the voters of Louisiana, or 
at least a majority of those that voted ? Surely it cannot be a sound principle in poli¬ 
tics or ethics that an admitted usurpation can create anything more than a government 


534 


SENATE ELECTION CASES. 


de facto. To assert that it may bring into existence by its mere recognition a govern¬ 
ment that lives, moves, and has its being solely by such adoption is to declare that the 
usurping tribunal is supreme and its decisions and orders are irreversible. What boots 
it to rebuke the illegal and tyrannical assumptions of a judge if his orders and decrees 
must have all the effect he designed to give them? Of what consequence is it that his 
violations of law should be reviewed and censured if the effect is the same as though he 
had not exceeded his jurisdiction and abused the authority of his office? It would seem 
to be an act of supererogation to pause to wonder at the fatuity that dictated his course, 
if its end and aim are to stand as facts accomplished. In the light of policy it would 
seem better in deciding that a government foully and fraudulently set up by the fiat of 
a judge shall stand because it is a de facto government; that no discredit should be cast 
upon the integrity or intelligence of the magistrate. It certainly cannot commend a 
State government to those who are to live under it to inform them that the National 
Legislature, after a thorough examination into the history of its origin, have ascertained 
that it was born of fraud and arrogated power, and but for these could never have had 
existence. 

To avoid the exercise by Congress of a power so delicate as that of annulling the en¬ 
tire election of a State, embracing the highest officials and parish officers of every grade, 
and a State legislature besides, I would prefer that only such legislation be had as is 
necessary to preserve order and respect for law in the State. This I think may be effected 
by enacting a law convening by name the members-elect to the two houses of the legis¬ 
lature (whose election has not been disputed before the committee by the contending 
partisans) on a day certain, in their respective chambers in the Mechanic’s Institute in 
the city of New Orleans, and requiring them to organize their said houses by electing 
the necessary officers, and having organized, to proceed to count the said election returns 
and to declare the result of such count; to seat only such members as may appear by 
said returns to have been elected to the particular house, as the case may be, and to 
announce the election of a governor and lieutenant-governor, who shall thereupon be 
inaugurated for the terms for which they have been chosen at said election, and who 
shall thereupon proceed to execute the duties required of them by the constitution and 
laws of the State. 

JOSHUA HILL. 

COMPENSATION OF MESSES. BAY AND M’MILLEN. 

Monday, March 3,1873. 

Mr. West submitted the following resolution; which was referred to the Committee 
on Privileges and Elections: 

“ Resolved , That the Secretary of the Senate be, and he is hereby, directed to pay to 
John Ray and W. L. McMillen, each, full compensation as Senator for the unexpired 
term for which they were elected, as shown by their respective credentials, until the 4th 
of March, 1873; and also mileage.” 


[Special session of Senate, March, 1873.] 

Thubsday, March 13, 1873. 

Mr. West submitted the following resolution; which was referred to the Committee 
on Privileges and Elections. 

[Resolution same as that submitted March 3, given above.] 


[First session of the Forty-third Congress.] 

Mr. West submitted the following resolution; which was referred to the Committee 
to Audit and Control the Contingent Expenses of the Senate. 

[Resolution same as that submitted March 3, given above. ] 

Monday, June 22, 1874. 

Mr. Carpenter, from the Committee to Audit and Control the Contingent Expenses of 
the Senate, to whom was referred the resolution to pay John Ray and William L. Mc¬ 
Millen compensation as Senators from the State of Louisiana, submitted a report (No. 476), 
accompanied by the following resolution; which was ordered to be printed. 

[Resolution found at end of report. ] 


635 


THE LOUISIANA CASES, 1873-80. 

REPOET OF COMMITTEE.* 

[The committee consisted of Messrs. Morton (chairman), Carpenter, Logan, Alcorn, 
Anthony, Mitchell, Wadleigh, Hamilton of Maryland, and Saulsbury.] 

In the Senate of the United States. 

June 22,1874.—Ordered to be printed. 

Mr. Carpenter submitted the following report: 

The Committee to Audit and Control the Contingent Expenses of the Senate, to whom 
was referred the resolution offered by Senator West, as follows: “ Resolved, That the Sec¬ 
retary of the Senate be, and he is hereby, directed to pay John Ray and William L. 
McMillen, each, full compensation as Senator for the unexpired term for which they were 
elected, as shown by their respective credentials, until the 4th of March, 1873,” submit 
the following report: 

Owing to the fact that in the State of Louisiana, in 1872 and 1873, there were two 
bodies claiming to be the legislature of that State, one known as the McEnery and the 
other as the Kellogg legislature, John Ray and William L. McMillen each claimed the 
seat made vacant in the Senate by the resignation of Hon. William P. Kellogg, and 
appeared and presented their credentials to the Senate, and attended before the Commit¬ 
tee on Privileges and Elections, charged with the investigation of their claims. The 
committee reported against seating either of them, but both had incurred expenses in 
the prosecution of their claims. 

By analogy to the precedents of the Senate, your committee are of opinion that both 
Ray and McMillen would be entitled to the salary of a Senator from the time of their 
election until the disposition of their claims respectively by the Senate; but regarding 
this precedent as vicious, your committee recommend the adoption of the following 
resolution: 

“Resolved , That the actual expenses necessarily incurred by John Ray and William 
L. McMillen, claimants to a seat in the Senate from the State of Louisiana in the Forty- 
second Congress, in presenting their respective claims to a seat in the Senate, be paid out 
of the contingent fund of the Senate, which expenses shall be presented itemized and 
verified by the oath of the said Ray and McMillen respectively, and the amounts shall be 
audited by the Committee to Audit and Control the Contingent Expenses of the Senate. 

[First session of the Forty-fourth Congress. ] 

Mr. West submitted the following resolution; which was referred to the Committee to 
Audit and Control the Contingent Expenses of the Senate: 

1 ‘Resolved, That the Committee on Contingent Expenses be instructed to report what 
amounts of compensation, if any, are, in their opinion, due to the respective contestants, 
William L. McMillen and John Ray, claimants to a seat in the Senate for the unexpired 
term of William P. Kellogg; and to William L. McMillen as claimant heretofore to a 
seat in the Senate for the term commencing March 4, 1873. ’ ’ 

Wednesday, July 5, 1876. 

Mr. West submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

1 ‘ Resolved, That the claims of William L. McMillen and John Ray, contestants for the 
seat vacated by the resignation of William P. Kellogg, a Senator from Louisiana, for pay 
and mileage as Senators for the unexpired term named, be referred to the Committee on 
Privileges and Elections.’’ 

[Second session of the Forty-fourth Congress. ] 

Mr. West submitted the following resolution for consideration: 

“ Resolved , That John Ray, claimant for the seat in the Senate vacated by the resigna¬ 
tion of William P. Kellogg, late Senator of Louisiana, be paid the sum of $1,329.14 out 
of the contingent fund of the Senate.” 

[Second session of the Forty-fifth Congress. ] 

Tuesday, January 15, 187a 

Mr. Kellogg submitted the following resolution; which was referred to the Committee 
on Privileges and Elections: 

“ Resolved, That the Secretary of the Senate be, and he is hereby, directed to pay out 


♦Taken from Senate Reports, 1st sess.43d Cons:., No. 476. 



536 


SENATE ELECTION CASES. 


of the contingent fund of the Senate full compensation and mileage as Senators to John 
Ray and William L. McMillen for the unexpired term of William P. Kellogg in the 
Forty-second Congress.” 

Friday, March 22, 1878. 

Mr. Hoar, from the Committee on Privileges and Elections, to whom was referred the 
resolution submitted by Mr. Kellogg January 15, 1878, directing the Secretary of the 
Senate to pay to John Ray and William L. McMillen the compensation and mileage of 
Senators for the unexpired term of William P. Kellogg in the Forty-second Congress, 
reported it with an amendment, and submitted a report (No. 182) thereon. 

REPORT OF COMMITTEE. * 

[The committee consisted of Messrs. Wadleigh (chairman), Mitchell, Cameron of Wis¬ 
consin, McMillan, Hoar, Ingalls, Saulsbury, Merrimon, and Hill.] 

In the Senate of the United States. 

March 22, 1878.—Ordered to be printed. 

Mr. Hoar, from the Committee on Privileges and Elections, submitted the following 
report: 

The Committee on Privileges and Elections, to whom was referred Senate resolution 
to pay John Ray and William McMillen compensation and mileage, report as follows: 

The full term of William P. Kellogg, Senator ffom Louisiana, expired March 3, 1873. 
He resigned January 13, 1873. 

At the last-named date there were two bodies in Louisiana claiming to be the legal 
legislatures of that State. One of these bodies elected John Ray to fill the unexpired 
term; the other elected William L. McMillen. Their respective credentials in due form 
were presented to the Senate on the 22d day of January, 1873. Those of John Ray were 
certified to by William P. Kellogg, governor; those of William L. McMillen were certi¬ 
fied to by John McEnery. Both sets of credentials were, on the day of their presentation 
to the Senate, referred to the Committee on Privileges and Elections. 

On the 20th of February, 1873, the Committee on Privileges and Elections reported— 

1. That there is no State government at present existing in the State of Louisiana. 

2. That neither John Ray nor W. L. McMillen is entitled to a seat in the Senate, 
neither having been elected by the legislature of the State of Louisiana. 

The first proposition was submitted by the committee to the Senate by virtue of a res¬ 
olution passed January 16,1873, in the following terms: 

“ Resolved , That the Committee on Privileges and Elections be instructed to inquire 
and report to the Senate whether there is a legal State government in Louisiana, and 
how and by whom it was constituted.” 

As part of the committee’s report of February 20, 1873, a bill was submitted ordering 
an election in Louisiana. This measure was considered at great length by the Senate, 
and was rejected February 27, 1873. A motion to reconsider was laid on the table 
March 1, 1873. 

No decision was ever made by the Senate of the question whether there was or was 
not, at the time specified, a legal State government in Louisiana, but the Senate rejected 
the bill ordering a new election to be held in Louisiana. 

The second proposition submitted by the committee, that neither Ray nor McMillen 
were entitled to a seat in the Senate, was never acted upon by the Senate, as the term for 
which they claimed to be elected expired without the question having been considered. 

Throughout the investigation made by the Committee of Privileges and Elections, by 
order of the Senate, of the affairs of the State of Louisiana, both Ray and McMillen 
were in constant attendance, aiding the committee by their knowledge of the case and 
by their testimony in the discharge of the duty imposed upon it. 

In the Forty-third Congress a resolution that Ray and McMillen be paid as Senators 
for the unexpired term to which they were elected was referred to the Committee to 
Audit and Control the Contingent Expenses of the Senate. Mr. Carpenter, of Wisconsin, 
who made the report on the Louisiana case from the Committee of Privileges and Elec¬ 
tions, was chairman of the Committee on Contingent Expenses. He submitted the 
following report upon the resolution giving compensation: 

“Owing to the fact that in the State of Louisiana, in 1872 and 1873, there were two 
bodies claiming to be the legislature of that State, one known as the McEnery and the 
other as the Kellogg legislature, John Ray and William L. McMillen each claimed the 
seat made vacant in the Senate by the resignation of Hon. William P. Kellogg, and 
appeared and presented their credentials to the Senate, and attended before the Com- 


* Taken from Senate Reports, 2d sess. 45th Cong., No. 182. 




537 


THE LOUISIANA CASES, 1873-80. 


mittee on Privileges and Elections, charged with the investigation of their claims. The 
committee reported against seating either of them, but both had incurred expenses in 
the prosecution of their claims, 

‘ ‘ By analogy to the precedents of the Senate, your committee are of opinion that both 
Ray and McMillen would be entitled to the salary of a Senator from the time of their 
election until the disposition of their claims respectively by the Senate; but regarding 
this precedent as vicious, your committee recommend the adoption of the following 
resolution: 

“ ‘ Resolved , That the actual expenses necessarily incurred by John Ray and William L. 
McMillen, claimants to a seat in the Senate from the State of Louisiana in the Forty- 
second Congress, in presenting their respective claims to a seat in the Senate, he paid 
out of the contingent fund of the Senate; which expenses shall be presented itemized 
and verified by the oath of the said Ray and McMillen respectively, and the amounts 
shall be audited by the Committee to Audit and Control the Contingent Expenses of 
the Senate.’ ” 

No action was ever had by the Senate upon this recommendation; it was not made 
until eighteen months after the respective credentials were presented. The claimants 
to the seat could not have been expected to preserve an account of items of their ex¬ 
penditure, nor could they have anticipated that a proposition would be submitted so 
entirely at variance with the idea of compensation attending Senatorial service, and so 
contrary to the uniform practice of the Senate. 

The chairman of the Committee on Contingent Expenses of the Forty-third Congress 
was entirely familiar with the claims of Ray and McMillen. He made the report from 
that committee that they were entitled to compensation, but he proposed an innovation 
upon the precedents of the Senate in the manner of that compensation. The proposi¬ 
tion to change the usages of the Senate did not meet with favor, and by the action had 
upon the cases of Mr. Pinchback, of Louisiana, and of Mr. Sykes, ^f Alabama, occur¬ 
ring and passed upon subsequently, the Senate confirmed its uninterrupted usage. In 
acting upon the two last-cited cases the Senate stipulated ‘ ‘ that in no case shall any 
pay be allowed to a Senator to begin earlier than the date of his election or appoint¬ 
ment.” 

Upon the foregoing facts we are of opinion that each of the contestants was justified 
in making the contest for the seat. If the usage of the Senate in such cases be followed 
each should be allowed the sum of $1,334.67, being the amount of compensation and 
mileage from the date of his alleged election to the end of the term. But we do not 
recommend such an allowance, but prefer to allow to each claimant only his actual and 
reasonable expenses incurred in making the contest. 

Under the circumstances, however, it would be clearly unjust to require of the claim¬ 
ants an itemized account of such expenses. They allege that they kept no such account, 
relying on the unbroken usage of the Senate to allow salary and not compensation, and 
that they cannot now furnish either items or vouchers. It appears, however, that each 
of these gentlemen traveled from New Orleans to Washington, remained here more than 
a month, laying aside all other business, and wholly devoting himself to this contest. 
The question required an elaborate and thorough examination of the history of the Lou¬ 
isiana election and the claims of the rival State governments. In this examination the 
contestants acted as counsel, and rendered a service in which, if they had employed other 
suitable counsel, they might properly pay a large fee, which should be reimbursed by 
the Senate. 

On the whole, we recommend the payment to each of the sum of $1,000, which is con¬ 
siderably less than the salary and mileage, and is a moderate estimate of the actual cost 
and expense incurred by each. 

We therefore recommend that the resolution be amended by substituting therefor the 
following, and that, so amended, the same be adopted: Strike out all after the words 
“contingent fund of the Senate” and insert “the sum of $1,000 each to John Ray and 
William L. McMillen, as full compensation for their expenses as contestants for a seat in 
the Senate for the unexpired term of William P. Kellogg in 1873.” 

Wednesday, March 27, 1878. 

On motion by Mr. Hoar, the Senate proceeded to consider the resolution submitted by 
Mr. Kellogg January 15, 1878, to pay John Ray and William L. McMillen compensation 
and mileage as Senators from Louisiana; and the amendment reported by the Committee 
on Privileges and Elections having been agreed to, 

On the question to agree to the resolution as amended, as follows: 

“ Resolved , That the Secretary of the Senate be, and he is hereby, directed to pay out 
of the contingent fund of the Senate the sum of $1,000 each to John Ray and William L. 
McMillen, as full compensation for their expenses as contestants for a seat in the Senate 
for the unexpired term of William P. Kellogg in 1873,” 

It was determined in the affirmative—yeas 51, nays 7. 


538 SENATE ELECTION CASES. 

On motion by Mr. Cockrell, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Allison, Anthony, Armstrong, Bailey, 
Blaine, Booth, Bruce, Burnside, Butler, Cameron of Pennsylvania, Cameron of Wisconsin, 
Chaffee, Conkling, Conover, Davis of West Virginia, Dennis, Dorsey, Eustis, Ferry, Gar¬ 
land, Gordon, Grover, Hamlin, Hereford, Hill, Hoar, Ingalls, Johnston, Jones of Florida, 
Kernan, Kirkwood, Lamar, McCreery, McMillan, Matthews, Maxey, Merrimon, Mitchell, 
Morgan, Morrill, Oglesby, Paddock, Randolph, Rollins, Saulsbury, Saunders, Spencer, 
Teller, Thurman, Windom, and Withers. 

Those who voted in the negative are Messrs. Cockrell, Coke, Eaton, McDonald, Sargent, 
Wallace, and Whyte. 

So the resolution was agreed to. 

[The debate is found on pages 2053-2056 of the Congressional Record, volume 7, part 
3, 2d sess. 45th Cong.] 


McMILLEN vs. PINCHBACK (MARR and EUSTIS). 

Contest for seat for term beginning March 4, 1873. 

Tuesday, January 21, 1873. 

Mr. West presented the credentials of Pinckney B. S. Pinchback, elected a Senator 
by the general assembly of the State of Louisiana for the term of six years commencing 
March 4,1873. 

Ordered , That they lie on the table. 

Monday, March 3, 1873. 

The Vice-President presented a telegraphic dispatch, signed by John McEnery as gov¬ 
ernor of Louisiana, notifying him of the election of W. L. McMillen as a Senator from 
that State; and, 

Objection having been made by Mr. West to the reception of the dispatch, 

On motion by Mr. Sherman, 

Ordered , That the question of the reception of the dispatch lie on the table. 

[The debate is found on page 2147 of the Congressional Globe, part 3, 3d sess. 42d 
Cong.] 

******* 

Mr. Schurz presented the memorial of W. L. McMillen, praying that the Senate may 
take notice of his election as a Senator from the State of Louisiana for the term com¬ 
mencing March 4, 1873. 

Ordered , That it lie on the table. 

Friday, March 7, 1873. 

Mr. West presented the credentials of William L. McMillen, elected a Senator by the 
legislature of Louisiana for the term of six years commencing March 4, 1873; which 
were read. 

Ordered , That they lie on the table and be printed. 


[First session of the Forty-third Congress.] 

Thursday, December 4, 1873. 

On motion by Mr. Morton, 

Ordered , That the credentials of P. B. S. Pinchback and W. L. McMillen, claiming 
seats as Senators from the State of Louisiana, on the files of the Senate, be referred to 
the Committee on Privileges and Elections. 

Monday, December 15, 1873. 

Mr. Morton, from the Committee on Privileges and Elections, to whom were referred 
the credentials of P. B. S. Pinchback and W. L. McMillen, claiming seats in the Senate 
as Senators from Louisiana, reported that the committee were evenly divided upon the 
question as to whether Mr. Pinchback is, upon his credentials, entitled to be sworn in 
as a member, and asked to be discharged from the further consideration of the subject, 
and to refer the whole matter to the determination of the Senate. 

******* 

Mr. Morton submitted the following resolution for consideration; which was ordered 
to be printed: 

‘ ‘Resolved , That the credentials of P. B. S. Pinchback for a seat in the Senate of the 


539 


THE LOUISIANA CASES, 1873-80. 


United States for six years, commencing on the 4th of March, 1873, being in regular form, 
he is entitled under the law, and in conformity with the usages of the Senate, to be sworn 
in as a member; and that whatever grounds of contest there may be as to his right to a 
seat should be made thereafter.” 

[The debate is found on pages 189-191 of the Congressional Record, vol. ii, parti.] 


Tuesday, December 16, 1873. 

On motion by Mr. Morton, the Senate resumed the consideration of the resolution de¬ 
claring P. B. S. Pinchback entitled to a seat in the Senate from the State of Louisiana. 
After debate, 

Ordered, That the said resolution lie on the table. 

[The debate is found on pages 220-228 of the Congressional Record, vol. ii, part 1.] 


Monday, January 12, 1874. 

Mr. West presented a paper purporting to be a joint resolution of the legislature of 
Louisiana, expressive of confidence in Hon. P. B. S. Pinchback, claiming a seat in the 
Senate as Senator from that State. 

Ordered , That it lie on the table. 


Tuesday, January 20, 1874. 

Mr. Morton submitted the following resolution for consideration; which was ordered 
to be printed: 

“ Resolved, That the credentials of the Hon. P. B. S. Pinchback be referred to the 
Committee on Privileges and Elections; that the committee have power to send for per¬ 
sons and papers, and be instructed to investigate the circumstances attending the election 
of said Pinchback to a seat in this body.” 

Monday, January 26, 1874. 

On motion by Mr. Morton, the Senate resumed the consideration of the resolution sub¬ 
mitted by him on the 15th December last, viz: 

‘ ‘ Resolved , That the credentials of P. B. S. Pinchback for a seat in the Senate of the 
United States for six years, commencing on the 4th of March, 1873, being in regular 
form, he is entitled under the law, and in conformity with the usages of the Senate, to 
be sworn in as a member; and that whatever ground of contest there may be as to his 
right to a seat should be made thereafter. ’’ 

Mr. Morton having modified his resolution to read as follows: 

“ Resolved , That the credentials of the Hon. P. B. S. Pinchback be referred to the Com¬ 
mittee on Privileges and Elections; that the committee have power to send for persons 
and papers, and be instructed to inquire into the conduct of said Pinchback in connection 
with said election,” 

After debate, 

On motion by Mr. Sherman, 

Ordered , That the further consideration of the said resolution be postponed to Wednes¬ 
day next at 1 o’clock. 

[The detate is found on pages 913-921 of the Congressional Record, vol. ii, part 1.] 


Tuesday, January 27, 1874. 

On motion by Mr. McCreery, 

Ordered , That the credentials of W. L. McMillen, claiming a seat in the Senate as 
Senator from the State of Louisiana, be recommitted to the Committee on Privileges and 
Elections. 


Thursday, January 29,1874. 

On motion by Mr. Carpenter to postpone the further consideration of the unfinished 
business, and that the Senate resume the consideration of the resolution submitted by 
Mr. Morton on the 15th December last, and modified by him on the 26th instant to read 
as follows: 

‘ ‘ Resolved, That the credentials of the Hon. P. B. S. Pinchback be referred to the Com¬ 
mittee on Privileges and Elections; that the committee have power to send for persons 
and papers, and be instructed to inquire into the conduct of said Pinchback in connec¬ 
tion with said election, ’ ’ 

Pending debate, 

On motion by Mr. Edmunds, the Senate proceeded to the consideration of executive 
business. 


4 


540 


SENATE ELECTION CASES. 


Friday, January 3(1, 1874. 

The Senate resumed, &c. 

[The debate of the last two days, including a speech by Mr. Carpenter, is found on pages 
1036-1058 of the Congressional Record, vol. ii, part 2. Mr. Morton’s speech is found on 
pages 41-43 of the Congressional Record, vol. ii, Appendix.] 

Monday, February 2, 1874. 

The Senate resumed, &c. 

[The debate is found on pages 1109-1111 of the Congressional Record, vol. ii, part 2. 
Mr. Morton’s speech is found on pages 43-48 of the Congressional Record, vol. ii, Ap¬ 
pendix. ] 


[Second session of the Forty-third Congress.] 

Wednesday, December 16, 1874. 

The Vice-President laid before the Senate a letter of W. L. McMillen requesting the 
speedy action of the Senate upon his credentials as Senator-elect from the State of Lou¬ 
isiana; which was referred to the Committee on Privileges and Elections. 

Wednesday, December 23,1874. 

Mr. Morton submitted the following resolution for consideration; which was ordered 
to be printed: 

“Resolved , That the Senate recognize the validity of the credentials of P. B. S. Pinch- 
back as certified to by Governor William P. Kellogg, of Louisiana, under the seal of said 
State; and the Committee on Privileges and Elections are instructed to examine and re¬ 
port if said Pinchback is entitled to be admitted on the prima facie case thus made, or 
if such admission should be postponed until investigation is made as to the charges of 
corruption in his election alleged against him. ’ ’ 


Friday, January 22, 1875. 

Mr. West presented the credentials * of Pinckney B. S. Pinchback, elected a Senator 
by the legislature of Louisiana for the term expiring March 3, 1879; which were read. 

On motion by Mr. Sherman, 

Ordered , That the credentials, together with the papers in relation to the contested 
seat in the Senate from the State of Louisiana on the files of the Senate, be referred to 
the Committee on Privileges and Elections. 


Saturday, February 6, 1875. 

Mr. West presented a memorial of P. B. S. Pinchback, praying speedy and definite 
action upon his credentials as Senator-elect from the State of Louisiana; which was re¬ 
ferred to the Committee on Privileges and Elections. 


Monday, February 8, 1875. 

Mr. Morton, from the Committee on Privileges and Elections, to whom were referred 
the credentials of P. B. S. Pinchback, by unanimous consent submitted a report (No. 626), 
accompanied by the following resolution: 

“ Resolved , That P. B. S. Pinchback be admitted as a Senator from the State of Lou¬ 
isiana for the term of six years beginning on the 4th of March, 1873.” 

[The debate is found on page 1063 of the Congressional Record, vol. iii, part 2.] 

REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Morton (chairman), Carpenter. Logan, Alcorn, 
Anthony, Mitchell, Wadleigh, Hamilton of Maryland, and Saulsbury. ] 

In the Senate of the United States. 

February 8,1875.—Ordered to be printed. 

Mr. Morton, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

The Committee on Privileges and Elections, to which were referred the credentials ol 

* A copy of the credentials is found on page 647 of the Congressional Record, vol. iii, part 1. 



THE LOUISIANA CASES, 1873-80. 541 


P. B. S. Pinchback lor a seat in the Senate from the State of Louisiana, have had the 
same under consideration, and submit the following report: 

That the certificate of William Pitt Kellogg, then and now the governor of the State 
of Louisiana, which certificate is verified by the great seal of the State, shows that on 
the 17th day of January, 1873, the Hon. P. B. S. Pinchback was elected to a seat in the 
Senate of the United States for the term of six years, beginning on the 4th March, 1873, 
by the legislature of Louisiana, in manner and form as prescribed by the act of Congress 
regulating the elections of Senators of the United States. Upon this certificate the 
committee are of opinion that Mr. Pinchback has a prima facie title to admission as a 
member of the Senate, and that whatever objections may exist, if any, as to the manner 
of his election or as to the legal character of the body by which he was elected, should 
be inquired into afterward. 

The committee, therefore, recommend the adoption of the following resolution: 

Resolved , That P. B. S. Pinchback be admitted as a Senator from the State of Louisi 
ana for the term of six years beginning on the 4th of March, 1873. 

In the Senate of the United States. 

Febbuaby 11, 1875.—Ordered to be printed to accompany Report No. 626. 

VIEWS OF THE MINOBITY. 

The undersigned members of the Committee on Privileges and Elections beg leave to 
submit their views in relation to the admission of P. B. S. Pinchback as a Senator from 
the State of Louisiana. 

The importance that the subject has attained by reason of the complications which 
now surround it impress it with a gravity not hitherto surpassed by any since the or¬ 
ganization of the Government. We feel it to be a proper occasion to give our reasons 
for the course which our convictions of what is due alike to this body, to the people of 
Louisiana, and to the whole country impel us to pursue. 

The resolution to be reported by the committee to the Senate for its consideration is 
as follows: 

“ Resolved , That P. B. S. Pinchback be admitted as a Senator from the State of Lou¬ 
isiana for the term of six years beginning on the 4th of March, 1873. ’ ’ 

The certificate upon which this resolution is based is as follows: 

State of Louisiana, Executive Depabtment, 

New Orleans , January 15, 1873. 

I, William Pitt Kellogg, governor of the State of Louisiana, do hereby certify that 
on the fifteenth day of January, in the year of our Lord one thousand eight hundred 
and seventy-three, Pinckney B. S. Pinchback was duly elected by the general assembly 
of this State to represent this State in the Senate of the United States for the full term 
of six years from the fourth day of March, one thousand eight hundred and seventy- 
three. 

Given under my hand and the seal of this State this fifteenth day of January, A. D. 
one thousand eight hundred and seventy-three, and the Independence of the United 
States the ninety-seventh. 

WM. P. KELLOGG. 

By the governor: 

[seal.] P. G. DESLONDE, 

Secretary of State. 

The power of the Senate under section 5, article 1 of the Constitution, to “judge of 
the election, returns, and qualifications of its own members ’ ’ is absolute and unlimited. 

The object in this case is to seat P. B. S. Pinchback upon this certificate alone, irre¬ 
spective of his election, and which in effect for the present excludes any consideration 
of the election itself. 

It may be admitted that the general practice has been to admit the person chosen as 
a Senator to his seat upon credentials sufficiently authenticated either by the legislature 
or the governor of the State, subject of course to any contest that might be thereafter 
prosecuted in respect to his right to the seat. The credentials in themselves, it will be 
conceded, have no substantial value. It is the election, and the election alone, that 
gives to the person chosen the right to be a Senator. 

The certificate of the governor of a State directed to be given by the act of Congress 
approved July 25, 1866, upon the election of a Senator, is but the certificate of a fact 
upon which the official existence of the person chosen depends. It gives to it no force 
whatever, and without it the election is just as good. It is merely one of the evidences 


542 


SENATE ELECTION CASES. 


of the election in a solemn form, and to which due respect should always be paid. In 
the act referred to there is nothing said as to what effect should be given to such a 
certificate. It has, however, been generally regarded as sufficient in itself to presume 
a lawful election of the person represented by it to be chosen. It is most certainly 
appropriate that this act did not define the force of such a certificate. It prescribes 
a duty that the governor might or might not observe. The Constitution of the United 
States provides for the election of Senators by the legislatures of the States. This is 
their absolute right. Congress may regulate the time and manner of choosing Senators, 
and the power of Congress over the subject is limited to this only. The right of ohoos- 
ing Senators belongs to the legislatures alone, and such election is alone in all cases of 
inquiry to be determined by its records. The governor is not known in the election; 
no duty is imposed upon him by the Constitution in respect to it, or in respect to its 
authentication. The legislature, to which is alone confided the high trust of choosing 
Senators, can speak through its own organization, its own officers, and its own acts, as 
its official record will show. 

The right of election is sacred; the right of having this election determined by its own 
record is equally sacred; for it might be that if other independent departments of the 
Government, as the executive, for example, possessed the right or power of authentica¬ 
tion in the election of a Senator, you might impinge upon the full enjoyment of the 
power of the legislature in the due choosing of Senators. This absolute right to choose 
we hold should not and does not depend for its efficiency upon the action of the execu¬ 
tive or any other officer of the State or Federal Government. 

It will be observed that the certificate, such as we now have under consideration, 
necessarily involves these elements of belief before it can have the force which is now 
attempted to be given to it by the report of the committee in this case: first, that the 
facts stated in regard to the election are true; and second, that the person certifying as 
governor is in fact what he represents himself to be. The efficacy sought to be im¬ 
pressed upon this certificate, in at once admitting the person represented to be chosen 
to a seat, alone depends upon the latter fact. With this in dispute the efficient power 
is gone. Investigation is at once inaugurated to settle the disputed point. Inquiry 
leads to inquiry, and the real life of the certificate is lost in the strife, for it can be 
readily seen that in a contest as to whether the certificate has any validity, either by 
reason of the allegation that the person certifying was not in fact the governor, or from 
any other reason, the State might be left without a Senator, when by reference to the 
acts of the legislature the records would show a lawful election by a lawful body, and 
who could deny that a person so chosen and with such a record could not be admitted 
without regarding at all the contest about the certificate of the governor, or whether he 
was in fact governor ? 

We advert to this to show that a contest upon the subject of certificates at all for any 
legitimate cause destroys their force. It was intended that by their force alone there 
should be immediate unobstructed admission to a seat. It must be conceded, in order 
to give this effect to the certificate before us, that William Pitt Kellogg was at the time 
the governor of Louisiana. If he were not the governor, then it is no more than waste 
paper. All will admit, we presume, that this has been a subject of dispute at least since 
the State election which took place on the 4th day of November, A. D. 1872. A con¬ 
stant, earnest, and at times an aggressive protest has been made against Kellogg, as not 
only not entitled to be the constitutional and rightful governor of Louisiana, but as a 
notorious usurper, held in the position he has seized without color of right by means of 
the armed forces of, the United States. Events occurring at the time, and continually 
since, and some of the most painful character, prove that he does not hold this place 
practically by any other tenure or power.' Whatever else may be said of this notable 
prominent fact, all are well advised that the right of Kellogg to be governor of Louisiana 
is in good faith denied and resisted in every way possible to a peaceful resistance. 

This at once, most naturally, opens up the inquiry as to the certificate itself, and no 
efficacy is to be ascribed to it until this is satisfactorily settled, for without this it is 
worthless for any purpose. We apprehend there is no diversity in the committee on this 
point. The report of the committee insists that Kellogg is the governor of Louisiana, 
and would proceed to show it by a course of argument and a system of evidence satisfac¬ 
tory to gentlemen uniting in that report. On the contrary, another course of argument, 
and other evidence equally satisfactory, have brought the undersigned to a very different 
conclusion. The broad field of inquiry and investigation is therefore opened up, for it 
must be manifest to an unprejudiced mind that an examination into the fact whether 
Kellogg was the rightful governor of Louisiana at the time he signed this certificate 
must bring us to his pretended election, and, with it, to the election of the body which 
chose Pinchback. The whole subject relating to the affairs of this State, in connection 
with the election held on the 4th of November, 1872, for the election of governor and 
other State officers, and members of the legislature, becomes involved in the very first 


THE LOUISIANA CASES, 1873-80. 5 43 

branch oJ the inquiry which it is conceded by all must be made and settled before any 
force can be imparted to the certificate. 

Before entering upon this inquiry we submit most respectfully, putting it in the mildest 
form, whether this is not an exceptional case from the ordinary one, where it is conceded 
that there was a rightful governor to sign certificates and where there was a legislature 
to elect. It must be admitted that no such case was ever before presented to the con¬ 
sideration of the Senate. Notwithstanding it has been the usual practice to admit, in 
the first instance, persons to a seat upon such certificates, leaving the contest, if any, to 
be proceeded with thereafter in the usual way, yet the very first question as to the official 
character of the person pretending to be governor impairs, as we have before said, the 
wonted efficacy of such certificate; so that when in the examination of this primary ques¬ 
tion is involved the body that chose Pinchback, and in fact the whole State government 
of Louisiana, would it be fair, rational, and just to stop short of the substantial merits of 
the case when all can be settled at once ? 

4 If will be admitted, we think, that in such a controversy, opening up both the official 
character of the governor and the legal validity of the legislature choosing the Senator, 
we could determine against the validity of the certificate, and at the same time determine 
the validity of the election upon the record of the legislature and upon its official power 
of election. Suppose that such certificates should be attacked for fraud, as they could be, 
could any one say that such attack would involve alone the fraudulent character of the 
certificate, and not the rightful issue—the election itself? The attack would involve 
both, and involving both, common reason would dictate that we should decide the sub¬ 
stantial question. While we could, in such an inquiry, set aside the certificate, we 
would give to the person rightfully chosen his seat, and all done in the same proceeding. 
For if our inquiry should be alone confined to the certificate, for whatever cause, we 
would be exposed to the fallacy of setting it aside and then remitting the case to the 
governor for other or further certificate of a fact simply, when we could, and it would 
be our duty, ascertain the fact ourselves to end the matter. 

Therefore we conceive that even in a technical sense, upon a question submitted as 
this is, an examination of the whole subject is necessary to come to right conclusions; 
but when we view it in its broad sense, and as we have it in the light of history and events 
daily transpiring, many of which we must or are presumed to know, as legislators and 
members of this body, we would consider it a gross dereliction of public duty did we 
confine ourselves to a technical consideration of matter not substantial when in it are in¬ 
volved questions of the greatest moment, and which in their proper solution demand our 
earnest efforts and soundest judgment. 

The facts present the broadest grounds for interposition in the broadest sense to ascer¬ 
tain the real right and settle a question that has already given, and, until rightly settled, 
will give to the country the greatest concern. The facts cannot be denied that impera¬ 
tively call for such an interposition; mere parchment titles, mere certificates, sink into 
insignificance before the patent and undeniable facts which environ this case. Never 
before has such a case been made, and it is to be hoped that no such one will ever be 
made again. 

A brief reference to the prominent facts will show how entirely and necessarily the 
whole case is before us. 

A general election was held in the State of Louisiana on the 4th day of November, 1872, 
for governor and other State officers, for one-half of the senate, and for all the members 
of the house. John McEnery and William Pitt Kellogg were the opposing candidates for 
governor, the former in politics being the Democratic and the latter being the Repub¬ 
lican candidate. By the official returns made by the regular officers of election to Henry 
C. Warmoth, then the acknowledged governor of Louisiana, and canvassed and counted 
by a returning board claiming to be a legal tribunal for this purpose, McEnery was found 
to have 9,606 majority over Kellogg; and, in respect to the legislature, according to these 
same official returns, and with the overholding senators, the senate stood—Democrats and 
Conservatives, 22; Republicans, 11; and there were two vacancies. The house of repre¬ 
sentatives stood—Democrats and Conservatives, 71; Republicans, 39; and there were seven 
vacancies, showing a large majority of Democrats and Conservatives in both branches of 
the legislature. 

Another board of returning officers, claiming also to be legally constituted, found that 
Kellogg was elected, and also found that a large majority of Republican members were 
elected to the legislature. It is admitted on all hands that this board had no official 
returns of the election before it, but that its canvass and count were made up from news¬ 
paper reports, the statements of unofficial persons, the political complexion of the parish, 
and also by counting as votes cast a large number of affidavits of persons who represented 
in such affidavits that they were from various causes prevented from voting, and the 
large mass of which, in the end, turned out to be forgeries. 

In this condition of things, Governor Warmoth, by his proclamation of the 20th Novem- 


544 


SENATE ELECTION CASES. 


ber f 1872, called an extra session of the legislature, to be held on the 9th day of December 
thence following. The regular session, as provided by the constitution, would begin on 
the6th day of January, A. D. 1873. On thenight of the 5th day of December, just five days 
before the meeting of the legislature in extra session, as called to convene by this procla¬ 
mation, E. H. Durell, a judge of the district court of the United States at New Orleans, 
passed an order directing Packard, the United States marshal, to take possession of the 
State-house, and to hold it subject to his further order, and meanwhile to prevent all 
unlawful assemblages therein. Packard, with a detachment of United States troops, 
seized the State-house, held it for weeks, and refused admission to any member of the 
legislature not returned by the board of returning officers headed by John Lynch, and 
which, in the course of these views, we shall designate as the Lynch board to distinguish 
it from the other boards. The consequence was that on the day of meeting, the 9th of De¬ 
cember, no member not returned by the Lynch board was permitted to enter into the 
State-house. The members meeting there organized. The members, or rather the Dem¬ 
ocratic and Conservative portion of them, returned by the board of returning officers, 
which we shall designate by calling it the De Feriet board, met at the city hall and or¬ 
ganized. Governor Warmoth at once recognized the latter body as the lawlul legislature 
of Louisiana, and their place of meeting as the State-house. 

Upon the organization of the body at the State-house, so called—it being the Mechan¬ 
ics’ Institute hall, it being improvised into a State-house, there being no State-house 
for the purpose provided by the State since the removal of the capital to New Orleans— 
consisting of Republicans, it at once passed articles of impeachment against Warmoth, 
and, by virtue thereof, P. B. S. Pinchback, then lieutenant-governor, took upon himself 
the office of governor, and claimed to act as such. Kellogg, who was a Senator in Con¬ 
gress at the time he became a candidate for governor, resigned his seat in the Senate, by 
reason of which a vacancy took place in this body from that State. Each of these bodies 
thus organized elected a Senator to fill this vacancy. One, the McEnery body, as we 
shall designate it, elected Mr. McMillen, and the other, the Kellogg body, elected Mr. 
Ray for the unexpired term. Each presented their credentials regularly signed and 
attested, Mr. McMillen by Governor Warmoth, and Mr. Ray by Acting Governor Pinch¬ 
back, each claiming to he the lawful governor of Louisiana. The extra session closed, 
and on the 6th day of January, 1873, the regular session began. Both bodies met at the 
same places and both organized. The one, Democratic, declared John McEnery duly 
elected, and the other, Republican, declared William P. Kellogg duly elected. Both 
qualified, and both proclaimed themselves to be the governor of Louisiana. 

On Tuesday, the 15th day of January, the day fixed for electing a Senator for the long 
term, commencing on the 4th day of March, 1873, the one body, the Democratic, elected 
W. L. McMillen, and the other, the Republican, P. B. S. Pinchback. Both came here 
with credentials, those of McMillen signed by McEnery, and those of Pinchback signed 
by Kellogg, each representing himself to be governor, and in all other respects are in due 
form, and attested by the seal, or the pretended seal, of the State. The certificates of both 
were presented in March, 1873, and ultimately referred to the Committee on Privileges 
and Elections. 

We have, therefore, presented to our consideration by the certificates before us the fact 
of two rival bodies and of two rival governors in the State of Louisiana—in fact, of two 
rival governments, each claiming to be the rightful government of Louisiana, each body 
claiming to be the lawful legislature of Louisiana and each sending rival Senators for 
a seat in this body, and each coming accredited with his certificate of election from the 
respective governors, each claiming to be the rightful governor of Louisiana. It is due 
alike to the people of Louisiana and to the dignity and constitution of this body that we 
use all the means in our power for a fair and just ascertainment of the rights of each to 
send a representative here. It must be acknowleged that as presented it is an exceed¬ 
ingly delicate question, and should be approached with all the spirit of fairness and can¬ 
dor of which the human judgment is capable. It is the first time in our history in which 
any such case has ever been presented to us, and it grows out of the unsettled condition 
of society in that State. 

The question involves an inquiry into the fact as to which of two governors and of two 
bodies constitute the rightful governor and the rightful legislature of the State. And, 
indeed, further, in the progress of such an inquiry, whether there is any legislature at 
all qualified to elect a representative in this body to legislate not only upon matters 
affecting the affairs of Louisiana but of the whole country. 

To our minds such a development of facts as we have, both historically and by the 
investigations and reports of both Houses of Congress made upon the subject-matter, that 
we should he confined to the inquiry only of ascertaining whether the certificate of the 
governor was surreptitious, or whether the person certifying was, in truth, the governor 
he represents himself to be, and not permitted to inquire whether the governor and the 
body electing (of which he is certifying) are both surreptitious, is beyond our compre • 


545 


THE LOUISIANA CASES, 1873-80. 

hension, and where, especially as in this case, the examination of one is the examination 
of both, one is incidental to the other, and the facts upon which either claim their 
right of action are interwoven with the facts that apply to both—the one an examina¬ 
tion ol the certificate of what was done, and the other of the fact of what was done. 

With these views we beg leave to examine the whole case, and to submit the conclu¬ 
sions to which we have arrived. 

In the first place, however, we propose to confine ourselves to the consideration of the 
case as presented by the committee upon the certificate alone of Kellogg. It will be 
observed that the report of the committee puts the question in definite terms. It de¬ 
clares Kellogg ‘ ‘ then and now the governor of Louisiana. ’ ’ It asserts what is denied, and 
presents as the sole question to be determined whether Kellogg was the governor of 
Louisiana at the time he signed this certificate; and this being so, we are then estopped 
from going behind it in the first instance by the usage of the Senate. 

Thus confined in this stage 1 of our inquiry to this single question, it becomes important 
for us to know all the facts and circumstances upon which Kellogg must rely in order to 
constitute him the rightful governor of Louisiana, and to this point we shall now direct 
our attention. 

When we speak of the governor of Louisiana of course we must mean only that he is 
the governor according to the constitution and laws of that State. By the forty-eighth ar¬ 
ticle, title 3, of the constitution of Louisiana it is provided that the supreme executive 
power shall he vested in a governor, who is to hold his office for four years, to he elected 
by the people. The person having the greatest number of votes shall be declared duly 
elected. In case of a tie between two or more candidates one of them shall be immedi¬ 
ately chosen governor by the joint vote of the members of the general assembly. 

No one, therefore, can he the constitutional governor of that State unless he be chosen 
in the manner prescribed. 

We should, however, always he careful when the question, so grave in its nature, is 
raised, as in this case, to consider all the direct as well as the indirect facts and circum¬ 
stances proving or tending to prove the real issue. 

And here it is important to remember, in order to avoid misconception, that in deter¬ 
mining this question in this or any similar case we are confined solely to powers conferred 
upon this body to judge of the elections, returns, and qualifications of its own members. 
Within this scope we possess all power, and our judgment is binding upon all, and can¬ 
not be brought into question by any person or tribunal whatever. But beyond this we 
cannot go; our acts can only have reference to one thing—whether the person chosen is 
entitled to be a member. Our decision is only binding when applied to this one partic¬ 
ular fact. Our decision may he right or it may be wrong—that is for us to'bear; but it 
does not bind other persons or other departments of the Federal or State governments, 
having other and different relations with the governor or legislature, or both, from con¬ 
testing or confirming the rights of either or both to legal existence. Our decision here 
may be cited to show what we did, but it can be used only as an illustration of what 
others thought and did, and not as binding upon them except, as we have before stated, 
upon the fact of Senatorship, in which our jurisdiction is complete and final and binding 
upon all. The decision of this body upon this question, be it what it may, does not 
establish or disestablish the Kellogg government, so as to affect or conclude the rights of 
others not involved in the election of Senator itself. The people of Louisiana may con¬ 
sider themselves outraged by our action in receiving a Senator not elected by what they 
may hold to he the rightful legislature; nevertheless they are bound by it, because we 
have the right to judge and determine; but will any one pretend to say that the separate 
action of this body upon this single question, committed exclusively to its jurisdiction, 
should bind and conclude any other person and any other department, either State or 
Federal, in their own separate and distinct relations with this legislature, or as to any 
rights they may have as against or instead of it ? Surely not! Therefore our decision 
does not vest a single right or confer a single power upon any other human being save 
the person upon which we have passed and admitted to membership upon this floor. 

But to recur to the question. If, in the course of the investigation, from all the facts 
drawn from all the sources to which we have referred, we conclude that the pretended 
governor is a mere usurper, then his acts are void and avail nothing. Persons hold office 
or place under three different tenures—first, de jure; second, de facto; and, third, as a 
usurper—the only three modes, we believe, known to the law; and by one or the other 
of these tenures does the person exercise the office or place that he holds. 

The first is clothed with all the powers that right, combined with possession, can give. 
The second is only clothed with the powers possession can give, that possession being 
obtained under a color of right; and these powers are limited to certain well-defined 
acts. The third refers to a person undertaking to hold office without any color of right; 
he is a mere usurper, whose acts are void. 

The distinguishing differences between officers dejure and de facto and a mere usurper 
are well laid down in the hooks in the earlier days, and the same are observed to this 

S. Doc. 11-35 



546 


SENATE ELECTION CASES. 


day. In a leading case, decided so far back as 1738, the general principles relating to 
officers de jure and de facto were well defined. In this case one Goldwire, “under pre¬ 
tense and color of being elected mayor of Christ Church, in the county of Southampton, 1 ' 
was presented unto William Willis, steward of the court leet, and was there sworn into 

the office of mayor, and, in fact, exercised the office till-day of-, 1736, and that 

being in the exercise of said office, and under “ pretense of being elected, and sworn into 
the same, he issued a summons to the several burgesses of the corporation to meet,” &c., 
and at such meeting he nominated the defendant Lisle as one of the burgesses, and the 
question was whether, when he made such nomination, he was mayor de facto , for it was 
found that he had never been elected, and, if mayor de facto, whether he had the power 
to make the appointment. It was held by the court that Goldwire was not so much as 
a mayor de facto; for in order to constitute a mayor de facto it is necessary that there 
be some form or color of an election; but without this, the taking the title and regalia 
of the office, and the acting and being sworn in as mayor are not sufficient. Now, here 
it appears that Goldwire was never elected in fact; and though it be stated that he was 
sworr at the leet, it does not appear (as it ought) that this was agreeable to the consti¬ 
tution of the borough. And it is not material that he acted as mayor, as it is found that 
a quo warranto was recently prosecuted against him, pending which the present election 
was made, and that he was thereupon adjudged to be a usurper.” (Andrews’s Reports, 
Henry vs. Lisle, 173.) The distinctions then made are continued to this day, and are as 
clearly defined: 

‘ ‘An officer de facto is one who exercises the duties of an office under color of an ap¬ 
pointment or election to that office. He differs, on the one hand, from a mere usurper 
of an office, who undertakes to act as an officer without any color of right, and on the 
other from an officer de jure , who is in all respects legally appointed and qualified to 
exercise the office. These distinctions are very obvious, and have always been recog¬ 
nized.”—(17Connecticut, Plymouth vs. Painter, 588; 7 Johnson, Peoples. Collins, 549; 
2 Kent.) 

It is claimed by some that though it be a question whether Kellogg be a governor de 
jure , yet he is a governor de facto, and as such his certificate of the election of Pinch back 
is to be recognized as equally binding upon us as if he were governor de jure. 

Holding, as we do, that he is neither the governor de jure nor de facto, but a mere 
usurper, and a usurper not keeping himself in position by his own unaided local power, 
but by the aid of armed forces of a foreign power—in its true relations to this case as 
much a foreign power as that of Great Britain could be—we desire, briefly, to examine 
this phase of the subject. 

Keeping in view the rulings we have cited, is Kellogg so much as a governor de facto ? 
In disposing of this we dispose of his character as governor de jure. 

As we have already noticed, the constitution of Louisiana provides that the governor 
shall be elected by the people. To be such de facto, he must be in by color of an elec¬ 
tion. If he has no color of an election, he is nothing but a usurper, “who is one under¬ 
taking to act without a color of right.” Two propositions are to be here considered, in 
order to arrive at correct conclusions— 

1. Was Kellogg elected by a majority of the votes of the people at the election held 
on the 4th day of November, 1872? 

2. If he was not, then had he such a color of an election as to constitute him governor 
de facto? 

This brings us to the wider domain of fact which at every step has marked this contro¬ 
versy from its inception in 1872 to the present period. In the direct examination of the 
matter, all the facts that may tend to a correct result should be considered. We have a 
great variety of facts and circumstances, some historical in their character, some which 
we are obliged to know or are assumed to know from our constitutional relations to the 
State, her people, her government, her officials, whether judicial, ministerial, executive, 
or political, and those which we have gathered ourselves through committees of this 
body in the investigation had by resolution of this body passed on 16th January, 1873, 
and which is as follows: “ Resolved, That the Committee on Privileges and Elections be 
instructed to inquire and report to the Senate whether there is any existing State gov¬ 
ernment in Louisiana, and how and by whom it is constituted; ” and to which commit¬ 
tee were also referred the certificates of John Ray and W. L. McMillen, both claiming 
the seat in this body supposed to have been made vacant by the resignation of William 
Pitt Kellogg. 

This committee, composed of Messrs. Morton, Carpenter, Logan, Anthony, Trumbull, 
Alcorn, and Hill, made a diligent and laborious investigation of all the matters con¬ 
nected with both questions, and made an elaborate report to the Senate, accompanied by 
a large amount of testimony. It is Senate report No. 457. Forty-second Congress, third 
session. From all the evidence, then, and which covers and exhausts the whole subject, 
was Kellogg in fact elected by the people of Louisiana the governor o( that State? The 
testimony shows that the election was held on the 4th day of November, 1872, and that 



547 


THE LOUISIANA CASES, 1873-80. 

it was held under the election laws of that State, approved March 16, 1870, aud that 
official returns were made ol that election to the governor of the State by the supervis¬ 
ors ol registration as required by the fifty-third section of that act. 

The fitty-tourth section ol the same act provides for a returning board, before whom 
all returns are to be laid by the governor, the governor being one of the board by virtue 
of his office, and this board is to canvass and compile these returns of elections and 
make returns of the persons elected to the secretary of state. Henry C. Warmotli was 
then governor of the State of Louisiana, having been elected in 1868, and who, by arti¬ 
cle 53, title 3 of the constitution, was to hold his office till the second Monday of Jan¬ 
uary thence lollowing the election held on the 4th day of November, 1872, and until the 
Monday next succeeding the day that his successor shall have been declared as duly 
elected, and shall have taken the oath of office as required by the constitution. It is 
not our purpose just now to refer to the difficulties occurring in the organization of the 
board ol returning officers; upon another branch of the subject we shall revert to it; but 
it is sufficient for our present purpose to ascertain that the election was held and the 
official returns were made of that election, and that they were counted and the result 
ascertained. 

The official returns were made to the governor by the supervisors, and were by him 
laid before a board of returning officers, claiming to be legally constituted for this elec¬ 
tion. It may be necessary here to state that by the election law of 1870 the governor, 
lieutenant-governor, the secretary of state, one John Lynch, and T. C. Anderson, or a 
majority of them, were made the returning officers for all elections in the State. 

The governor had in his possession the official returns of the election, but by reason 
of the changes in the board through disqualifications and from other causes, and through 
which two boards were organized, each claiming to be the legal one, and both appealing 
to the courts of the State to settle their respective rights, he did not lay the official re¬ 
turns before either board; but, in view of the condition of things, and to get rid of the 
difficulties of the situation, and to get rid of both boards, he approved the law passed at 
the preceding session of the legislature providing the mode of conducting elections, and 
which repealed entirely and absolutely the election law of 1870. He approved this act 
November 20, 1872, and it provided specially for the selection of a board of returning 
officers, to be made by the senate. This at once put out of official existence the con¬ 
tending members of the rival boards. The senate not being in session, Warmoth then, 
by virtue of the power claimed by him under the constitution to fill vacancies, appointed 
De Feriet, Wiltz, Isabelle, Austin, and Taylor, who took the oath of office, and before 
whom, on the 4th day of December, 1872, he laid the official returns, and they proceeded 
to canvass and compile them for senators and members of the house of representatives, 
and declared the results, and which were then officially promulgated by Governor War- 
moth. This return gave the results in both branches of the legislature as we have al¬ 
ready stated them. On the 20th day of November, 1872, the day on which he signed 
the act abolishing the old board, he issued his proclamation calling an extra session of 
the legislature, to convene on the 9th of December. 

The majority of the members of both branches of the legislature declared to be elected 
by this returning board met on the 9th December at the city hall in New Orleans, and 
organized both houses. They were recognized by Governor Warmoth as the legal legis¬ 
lature of Louisiana. After organization, the senate proceeded to elect five persons, taken 
from all political parties, to constitute the board of returning officers for elections, as 
required by section 2 of the act of November 20, 1872, and accordingly elected Mitchel, 
Forman, Thomas, Hunsaker, and Todd as such returning officers. The official returns 
were laid before this board by the secretary of the De Feriet board, which had just be¬ 
fore completed a canvass of them for members of the legislature, as we have stated, and 
they were all again canvassed by this new board, and with the following result: 

McEnery_ 66, 767 

Kellogg_ 54, 479 


Majority for McEnery___ 11,288 

The witness, Mr. Forman, a member of this board, brought with him the official re¬ 
turns and had them before the committee of the Senate, then investigating the case, and 
in all his testimony gave a satisfactory account of the manner in which the canvass was 
made. His evidence will be found, together with the official vote for governor, in the 
report made by Mr. Carpenter, and accompanying testimony on pages 75 to 83, in¬ 
clusive. There was no pretense that these were not the official returns; they were be- 
• fore the committee. There was no effort made to invalidate them in any way. Every 
opportunity was given. The same section of the law requiring the supervisor of regis¬ 
tration to send the voting list and returns to the governor also required him to make 
triplicates and retain one. No effort was made by the production of any duplicates to 






548 


SENATE ELECTION CASES. 


impair their correctness. It must be conceded that they were the official results, and 
that according to them McEnery was elected. There can be no other conclusion. It 
must be conceded, too, that Kellogg was not elected. Whatever right to the position as 
governor Kellogg may have, he certainly has none by the regular official returns of the 
votes of the people, as cast and returned under the constitution and laws of Louisiana. 

Then, having no right whatever by virtue of the election itself, has he any right by 
color of an election? And this brings us to the second proposition. We can well con¬ 
ceive that this right by color of an election is somewhat indefinite in meaning and sub¬ 
ject to many deductions in inferences from a given statement of facts, as in this case. 
Some may ascribe a more rigid construction as to what may be meant by a colorable 
right to a place than others. But this must be determined upon all the facts and cir¬ 
cumstances as they are presented, and we must gather from them whether there is in 
good faith any colorable right to hold the place; otherwise it is a fraud and a usurpation. 
There must be some reasonable meaning attached to the words “ colorable right,” or 
‘ ‘ under color of an election. ’ ’ Why use them in order to create an officer de facto , and 
to distinguish him from a usurper, unless they do mean something or have some force? 

We hold that, giving the weakest possible force to these words, there is nothing in 
this whole case that can give a pretense to the color of an election. It has been shown 
that Kellogg was not elected. Then what is there to impress him with the color of an 
election? Nothing whatever. A more bold, shameless, reckless usurpation is not found 
in history. 

He stands upon one thing, and upon one thing alone, and that is the declaration that 
if the people had voted and voted their sentiments he would have been elected If this 
can give a color to a right, and dignify him with official power, even for the most lim¬ 
ited purposes, then he is endowed with it. He pretends to hold his election by virtue 
of a canvass under a board claiming to be returning officers—consisting of Lynch and 
Herron for a time, then Bovee, Longstreet, and Hawkins—in which they gave some 
17,000 majority to Kellogg. 

The objections to this canvass are, first, that these gentlemen had not a tittle of au¬ 
thority to canvass, the law under which they pretended to act being absolutely repealed, 
and therefore they possessed no power whatever to do so. 

And next, that there was not an official return before them to canvass; but it is ad¬ 
mitted by Lynch in his testimony taken by the committee, found on page 155, that there 
were no returns before them, and that they obtained their information as to the results 
of the election from all kinds of sources, and from one particularly, the known political 
divisions of the voters of a county. 

Comment upon such a canvass is unnecessary. The machinery of elections by means 
of which public sentiment is definitely ascertained, and our governments, both Federal 
and State, are carried on, is an essential element in the American system. There is no 
substitute for it, and without it there is no order, government, or law. It must be 
established for the public good, and it must be supported when established for the pub¬ 
lic safety. The collected will of the people is only known through it. The voter that 
does not resort to it for the expression of his will from any cause cannot be heard above 
it or outside of it. True, an election may be set aside for fraud, intimidation, or other 
pregnant cause, but still the collected will of the people must be expressed through its 
machinery. A citizen not voting is as dead in law as if he were in fact dead so far as 
concerns the affirmative expression of his political will. The question is not what the 
voter may have done had he voted or offered to vote, but what did he do by his vote ? 

But to characterize properly the power of this board to make this canvass, and the 
supreme folly of the canvass itself, if will only be necessary to refer to the report from 
the Committee on Privileges and Elections, signed by Messrs. Carpenter, Logan, Anthony, 
and Alcorn, and to which we have already referred. The following extracts are to be 
found on pages 26, 27, and 28: 

“One of two things is certain, the governor’s approval of the new election law on the 
20th of November gave it effect on that day or it did not. 

“Assuming that the approval on that day was regular, the new law absolutely re¬ 
pealed all the laws under which the Warmoth board and the Lynch board were pre¬ 
tending to act, and of course abolished both boards without regard to the question which 
was the legal one. All that had been done in the election of November, 1872, in pur¬ 
suance of the old laws, that is, the registration, voting, and returns, was as valid after 
the act of November 20 as before. If the canvass had been made by the proper board 
under the old law, and in all things completed, the rights of parties based upon that 
canvass would not have been affected by the repeal of the laws. But the act of Novem¬ 
ber 20 taking effect after the returns were made and before they were canvassed, trans¬ 
ferred the duty of canvassing to the new board created by the act.” 

Again: ' 

“On the 6th of December, 1872, the Lynch board—Bovee (who was then acting as 


549 


THE LOUISIANA CASES, 1873-80. 

secretary of state in place of Herron), Lynch, Longstreet, and Hawkins—pretended to 
have canvassed the returns of the election, and certified to the secretary of state that 
Kellogg had been elected governor; Antoine, lieutenant-governor; Clinton, auditor; 
Iield, attorney-general; Brown, superintendent of education; and Lesiondes, secretary 
ol state; and also certified to a list of persons whom they had determined to he elected 
to the legislature. 

There is nothing in all the comedy of blunders and frauds under consideration more 
indefensible than the pretended canvass of this board. The following are some of the 
objections to the validity of their proceedings: 

|| 1. The board had been abolished by the act of November 20. 

2. The board was under valid and existing injunctions restraining it from acting at 
all, and an injunction in the Armstead case restraining it from making any canvass not 
based upon the official returns of the election. 

1 i Conceding the board was in existence, and had full authority to canvass the re¬ 
turns, it had no returns to canvass. 

“The returns from the parishes had been made under the law of 1870 to the governor, 
and not one of them was before the Lynch board. 

| ‘ It was testified before your committee by Mr. Bovee himself, who participated in 
this canvass by the Lynch board, that they were determined to have a Republican legis¬ 
lature, and made their canvass to that end. The testimony abundantly establishes the 
fraudulent character of their canvass. In some cases they had what were supposed to 
be copies of the original returns, in other cases they had nothing but newspaper state¬ 
ments, and in other cases where they had nothing whatever to act upon they made an 
estimate based upon their knowledge of the political complexion of the parish of what 
the vote ought to have been. They also counted a large number of affidavits purporting 
to be sworn to by voters who had been wrongfully denied registration or the right to 
vote, many of which affidavits they must have known to be forgeries. It was testified 
by one witness that he forged over a thousand affidavits and delivered them to the Lynch 
board while it was in session. It is quite unnecessary to waste time in considering this 
part of the case, for no person can examine the testimony ever so cursorily without 
seeing that this pretended canvass had no semblance of integrity.” 

It may be well enough to observe here that besides the distinguished gentlemen who 
united in this report, Judge Trumbull and Mr. Hill, who were members of the commit¬ 
tee, in this respect concurred with the report, whilst differing upon some other things, 
and in conclusions upon the whole case. The ability of all these gentlemen in the per¬ 
formance of the grave duty assigned to them is unquestioned; their labor and attention 
about it known and appreciated; and their party affiliations must stamp their detail of 
facts with freedom from all political bias in favor of McEnery and his government. Can 
anything more be added to show that there is not a pretense by which Kellogg can 
manufacture a colorable title to an election in fact? 

It must be remembered that we are not in this controversy obliged to show that Mr. 
McEnery was elected in fact. Our purposes are answered when we show that Kellogg is 
not elected, or that he has no colorable title to an election. 

In simple justice to the gentlemen of the committee making the report to which I have 
referred, whilst thus admitting that Kellogg was not elected, they come to the conclusion 
that, from irregularities, intimidations, and frauds, and other causes, no fair election had 
been held, and that it should be annulled and a new one ordered by Congress, and to be 
conducted under the auspices of the General Government. In order that there may be 
no misconception, we give the following extract from their report, which will be found 
on pages 44 and 45: 

‘ ‘ The testimony shows that leading and sagacious politicians of the State, who were 
acting with Warmoth, entertained the opinion before the election that Warmoth’s con¬ 
trol of the election machinery was equivalent to 20,000 votes; and we are satisfied by the 
testimony that this opinion was well founded. We believe that, had registration been 
accessible to all, and the polling places been properly established, the result of the elec¬ 
tion would have been entirely different. And although we cannot approve of such a 
canvass as that made by the Lynch board, who seem to have acted upon the principle of 
‘fighting the devil with fire,’ and circumventing fraud by fraud, and cannot say that 
Kellogg’s government was elected, nevertheless we believe that Kellogg’s government 
was defeated and the popular voice reversed by the fraudulent manipulation of the elec¬ 
tion. 

‘ ‘ If the Senate should be inclined not to go behind the official returns of the election, 
then the McEnery government and legislature must be recognized as the lawful govern¬ 
ment of the State; and McMillen, if regularly elected by that legislature, should be 
seated in the Senate in place of Kellogg. But your committee believe that this would 
be recognizing a government based upon fraud, in defiance of the wishes and intention 
of the voters of that State. ’ ’ 


550 


SENATE ELECTION CASES. 


In all this it will be observed that, whilst they condemn the manner of the election of 
McEnery, they take care to affirm again that Kellogg was not elected. 

Then, so far as Kellogg is concerned, there is nothing to show that he had the slightest 
right, either by an election or the color of an election, to hold this office. He must there¬ 
fore be regarded as a usurper; for in no other character could he hold the place, if not in 
that of governor de jure or de facto. 

The principles are well and plainly defined in the case of Plymouth vs. Painter, 17 
Conn., already quoted, in respect to the acts of persons holding place under one or the 
other of these modes. The following is from page 593: 

1 ‘ The acts of a mere usurper of an office, without any color of title, are undoubtedly 
wholly void, both as to individuals and the public. But where there is a color of a 
lawful title, the doings of an officer, as it respects third persons and the public, must be 
respected until he is ousted on a quo warranto , which is the appropriate proceeding to try 
the validity of a title to an office, and in which it would be necessary for him to show a 
complete title in all respects; although in a suit against a person for acts which he would 
have an authority to do only as an officer, he must, in order to make out a justification, 
show that he is an officer de jure; because the title to the office being directly drawn in 
question, in a suit to which he is a party, may be regularly decided. So where he sues 
for fees, or sets up a title to property by virtue of his office, he must show himself to be 
an officer de jure” 

It is here laid down— 

First, that the acts of a usurper are void. 

Secondly, that the acts of an officer in by a color of title—that is, an officer de facto , 
where the rights of third persons or the public are concerned—are to be respected. 

Thirdly, that where he is directly concerned he must show himself to be an officer de 
jure whenever the direct issue is made, either as to title, or fees, or as a trespasser, or 
otherwise. 

If Kellogg, then, be a usurper, the certificate relied upon in this case has no value for 
any purpose. But let us assume, for the sake of the argument, that Kellogg was gov¬ 
ernor de facto; that he was in by color of an election, and by color of an election only, 
and not by an election itself; with such knowledge upon our part, with the known fact, 
besides, that his right to the place is denied and contested, that there is a rival governor, 
in fact a rival government, we should proceed with great caution in giving such efficacy 
to his simple certificate. True, the third section of the act of Congress of 1866, making 
provision for the election of Senators, makes it the duty of the governor to certify the 
election to the President of the Senate; it still stops short of prescribing the force of such 
a certificate. No doubt Congress intended that ordinarily it should be regarded as suffi¬ 
cient for admission to a seat, but it must be manifest that this certificate is not the real 
credentials of a Senator-elect, but intended originally, we may presume, as a substitute 
for it. The real credentials of the election is a copy of the record of the election itself, 
properly certified by the officers of the body electing; for Congress has no right to impose 
this duty upon the governor, and that neither it nor the person elected can compel the 
governor to issue any such certificate. 

There must be design in not presenting a certified copy of the record of election by the 
legislature instead of depending alone upon this certificate of the governor, when it was 
well known that every step in the progress of this case would be contested. The decla¬ 
ration in the report submitted by the committee, that Kellogg was then and now the 
governor of Louisiana, defines the spirit of the whole proceeding; and that is that it is 
more of an object to get Kellogg recognized in some way as governor by this body than 
the admission of Pinchback to a seat in it. 

Therefore should we be more careful still how we undertake, in giving ostensible 
credence alone to a certificate, to pass upon a higher matter—the legal character of the 
person giving it. Why not, in such an acknowledged condition of things, recur to his 
credentials, which the record of the election or a copy of it can make ? But, that pro¬ 
duced, it is too apparent that the contest would be transferred from the governor to the 
legislature; the legislature is out of being, and therefore the fact of an election by it can 
only be inquired into; but the governor is still living in the place in which he was put, 
and still kept by an armed force, and to be kept there if his acts are to be respected or 
sanctioned by us. How shall we close our eyes to the facts staring us in the face? We 
again beg leave to repeat that with the assumption that Kellogg is at best but a governor 
de facto, with a rival governor claiming the right, and with the acknowledged power to 
exercise it in the absence of the troops of the United States, should we not be careful, if 
we can in any way abstain from determining questions of the present, which concern 
alone the present, and which should be determined in a different way and by all branches 
of the Government, if to be determined at all by it. The election of Pinchback does not 
concern the present; the body electing him is functus officio. He must stand or fall by 
the action of that body. Let us go back to that, and upon the acts and legal validity of 


551 


THE LOUISIANA CASES, 1873-80. 

that body determine the right to a seat. We say again that the passage of the resolution 
decides only one thing, the right of membership, and binds no one to anything besides; 
but the fact that in doing this we have acknowledged the legal validity of Kellogg’s 
official character may influence others or justify others in doing things to the inflnite 
injustice ot the people of Louisiana, and to the persons there claiming to be officers by 
virtue of a rightful election. 

Again, we well understand the principles which limit and qualify the powers of an 
officer de facto. His acts are scanned and judged; he can do only those that are to be 
considered as necessary to be done; indeed, so confined in this respect that it was held, 
in the case of King vs. Lisle, that the proper question in a case would be “whether the 
person be an officer de facto as to the particular purpose under consideration ; ” he can 
do nothing for himself; he cannot set up title by virtue of his office; he cannot sue lor 
his tees or salary; he cannot justify in a trespass; he can do nothing that may bring in 
issue his right to hold the office without showing that de jure right for the exercise of it. 
As a judge de facto his judgment in a litigation between third parties would be good; a 
sale of property under such a judgment would be good to pass title; and for the rea¬ 
son that third parties are not supposed to be able to inquire into the rights of one holding 
and exercising the duties of the office, and must theretore act upon what appears to 
be the right. But a sheriff de facto seizing and selling the property under that or any 
other judgment in a suit against him for the seizure by the owner or possessor of the 
property, he must for his defense show that he held his office de jure , lor this concerns 
himself only, and he should know whether he was in right an officer. 

Shorn of the general and enlarged powers of an officer de jure by the plainest princi¬ 
ples of law, limited and circumscribed by rules founded in reason and having the sanction 
of ages, shall we be disposed to give to the act of such an officer—governor de facto , if 
even he be such—that full and unqualified effect in this case, with the extraordinary cir¬ 
cumstances surrounding it, as if he were an officer de jure , when that act, too, bears 
directly upon the constitution of this body, which we are bound to guard, and upon the 
right of a State to have its true representatives upon this floor ? In regard to the con¬ 
stitution of this body the direct issue is made; this pretended governor represents himself 
to be the governor of Louisiana, and upon this alone does the committee rest the case. 
It is admitted that he must be the governor to give the certificate any power whatever. 
In raising the question it is shown that he is only governor de facto, if governor at all, 
and not de jure, that is, governor for a purpose only, and that purpose to be judged of, 
whether proper or not, when the exigency arises. It is upon us, and it is whether we 
shall constitute members of this body upon the certificates of such a governor, or shall 
we not rather recur, as we have before inquired, into the election itself or the record 
of it. 

Upon this body rests the duty of preserving its own organization, and of admitting its 
own members. Here its power is supreme, and for its independence it must depend upon 
this power, and its proper and legal and rational exercise; and it is to judge of the fact 
whether a certificate (not of a governor, as contemplated by the law, a rightful governor 
in all respects—but of such a governor) shall have the efficacy now asked for it. 

Indeed, in this very case, in the complications in Louisiana, the troubles and disorders 
there, the very soul of the objection that we now urge against the recognition of this cer¬ 
tificate is made to appear. There is trouble about the State government in that State. 
There is trouble as to who is the constitutionally elected governor, both claiming it, 
and as to which body of the two claiming to be the legislature is the real one. In this 
contest, where so much right is involved, and where right should be done, might it not 
be that, if we should admit Pinchback upon the certificate of Kellogg, we would to that 
extent recognize him as the rightful governor of Louisiana, and possibly direct additional 
power against the other side. Would this be wise, and just, and expedient; and when 
we know, too, that so far as the certificate in itself is concerned it adds nothing to title, 
but that the election constitutes this ? If it is the policy to settle these disturbances in 
Louisiana, to recognize either governor or none, do it in the usual manner known to the 
laws, and that is by legislation upon the part of Congress, when the whole subject can 
be considered, and the remedy, if any, be applied. 

Having come to the conclusion that Kellogg was a mere usurper and the certificate not 
entitled to respect, or if it should be considered by some that he was the governor de facto, 
that even in this view no force ought to be given to his certificate, we are brought to the 
consideration of the main fact itself, the election of Pinchback by a legislature. While 
this is not technically before us, it is substantially. While the report of the committee 
bases its action entirely upon the force of the certificate, the resolution submits the ques¬ 
tion of admission generally. It cannot be denied that the inquiry upon one branch 
opens up the whole subject, and one cannot be well considered without considering both. 

This brings us to the examination of the body organized under the returns made by 
the Lynch board, to which we have referred in the other branch of the case. In looking 


552 


SENATE ELECTION CASES. 


into the organization that elected Pinchback, the surreptitious inauguration of Kellogg 
into the gubernatorial office pales into insignificance before the fraudulent creation of 
this body into a legislature and of its shameless pretension to power. 

Even admit that Kellogg was the rightful governor of Louisiana, and that his certifi¬ 
cate should have all the force which could properly under ordinary circumstances attach 
to it, still all the facts are before us, and they are of the gravest character. The question 
is not who are members of the legislature of Louisiana—for that body is the judge of 
this, and of their elections and qualifications; with these we have nothing to do; but 
the question is as to the legislature as organized, whether there is one in being to elect, 
and whether such an one elected Pinchback. The existence of a legislature competent 
to elect a Senator is not only a historical fact to be known to us as any other patent fact, 
but it is one which is susceptible of proof. 

It will be necessary again to give a brief r4sum6 of the facts known to exist in Lou¬ 
isiana respecting the organization of the body claiming to be the legislature of that State, 
and which elected Pinchback. 

It will be remembered that the election occurred on the 4th day of November, 1872, 
and it was held under the election law passed in 1870. The law provided for a board of 
returning officers, before whom all the returns of the State were to be laid by the gov¬ 
ernor, to be canvassed and compiled; and further provided that the governor, Warmoth; 
the lieutenant-governor, Pinchback; secretary of state, Herron, and John Lynch, and T. 
C. Anderson comprise this board. It met on the 13th and 14th November. Pinchback 
and Anderson, being candidates for office, were disqualified. The governor, Warmoth, 
removed Herron and appointed Wharton in his stead as secretary of state, by virtue of 
which he claimed to be a member of the board. Differences arose in supplying the va¬ 
cancies occasioned by the disqualification of Pinchback and Anderson. The result was 
two sets of returning officers, each claiming to be the rightful, legal board; one headed by 
Warmoth as governor, consisting of himself as governor, Wharton as secretary of state, 
Hatch and Da Ponte, the latter being chosen to fill the vacancies. The other board, 
headed by Lynch, consisting of himself, Herron, who still claimed to be secretary of state, 
Longstreet, and Hawkins, the latter being chosen to fill the vacancies. Both boards 
applied to the courts of the State, and in the midst of the litigation as to which was 
the legal board, the governor, Warmoth, on the 20th day of November, A. D. 1872, 
approved an act which had been passed at the previous session of the legislature, repeal¬ 
ing entirely the act passed March 16, 1870, for conducting elections, and under which 
this election had been conducted up to this time. This act abolished the returning 
board established by the act of 1870, and made provision for another one to be elected 
by the senate. This disposed of both boards. No election returns h^d been laid before 
either. There being no returning board in legal existence to canvass the returns, and 
there being no session of the senate, so that a board could be elected as provided by the 
law, to consist of five persons, the governor claimed his right to make the appointments 
under the power to fill vacancies as provided by this article of the constitution of Lou¬ 
isiana (article 61, title 3): “The governor shall have power to fill vacancies that may 
happen during the recess of the senate by granting commissions which shall expire at 
the end of the next sessien thereof unless otherwise provided for in this constitution,” 
&c. On the 3d day of December he appointed De Feriet, Wiltz, Isabelle, Austin, and 
Taylor. On the day following he submitted the official returns to them, and they can¬ 
vassed and compiled them, and with the results we have before given, showing a large 
majority of Democrats and Conservatives in both branches of the legislature. Upon 
the same day he made official proclamation of the results ascertained by this board, as 
follows: 


Proclamation. 

State op Louisiana, Executive Department, 

New Orleans , December 4, 1872. 

Whereas P. S. Wiltz, Gabriel De Feriet, Thomas Isabelle, J. A. Taylor, and J. E. Aus¬ 
tin, returning officers appointed by the governor to fill vacancies existing, in accordance 
with the constitution and laws of the State of Louisiana, have made declaration of the 
result of an election held November 4, 1872, and have declared certain persons elected 
to the senate and house of representatives of the State of Louisiana, as will appear from 
the returns herewith attached and made a part of this proclamation; and 

Whereas such returns are compiled from the official returns of commissioners of elec¬ 
tion and supervisors of registration, on file in this office, and are in fact and in form accu¬ 
rate and correct, and made in accordance with law: 

Now, therefore, I, Henry Clay Warmoth, governor of the State of Louisiana, do issue 
this my proclamation, making known the result of said election aforesaid, and command 
all officers and persons within the State of Louisiana to take notice of and respect the 
same. 


THE LOUISIANA CASES, 1873-80. 553 


Given under my hand and the seal of the State this 4th of December, A. D. 1872, and 
of 1?he Independence of the United States the ninety-seventh. 

H. C. WARMOTH. 

By the governor: 


Y. A. WOODWARD, 

Assistant Secretary of State. 


At the same time the Lynch board, continuing its organization notwithstanding the 
repeal of the act under which they pretended to canvass, and from the data to which we 
have already referred, declared who were elected members of the legislature, a large ma¬ 
jority of whom were Republicans. 

Governor Warmoth, when he approved the bill on the 20th November repealing the 
election law of 1870, at the same time called an extra session of the legislature to con¬ 
vene on the 9th day of December, A. D. 1872, the regular session being that to begin in 
January, 1873. 

Warmoth was the regularly constituted governor of Louisiana. The only board ol 
returning officers in existence having the semblance of law to sustain a legal character 
was the De Feriet board, appointed by him. This board, and only this board, had can¬ 
vassed the official, regular returns of the election, and announced the result, and gave 
certificates of election. It was well known that the governor, wielding the whole exec¬ 
utive authority of Louisiana, wrnuld recognize the members as returned elected by the 
De Feriet board to be rightfully entitled to organize the legislature; that the members 
would meet on the 9th of December, as was directed by his proclamation, and organize 
the legislature; and that it would be recognized as the legislature of that State, as it 
would be in right and in fact the legislature. It was well known that that organization 
would run into the regular session, and that, continuing the legislature of this State, the 
returns as examined by t he De Feriet board would be submitted to it, and that McEnery 
would have been declared elected, and would have peaceably entered into the exercise 
of the office of governor, which would, of course, have closed the career of Kellogg, 
Pinchback, and their associates for the present in this respect. 

All this was well apprehended by Kellogg and his associates. The State courts had 
failed them, and the determination was to resort to another and a stronger tribunal. Kel¬ 
logg, Pinchback, and Packard determined to enlist the courts of the United States in 
their behalf. So early as the 16th of November William Pitt Kellogg filed his bill in 
the circuit court of the United States for the district of Louisiana against Governor War¬ 
moth and others, ostensibly for the purpose of preserving or perpetuating the evidence 
of the official returns of the election, then in the hands of Warmoth, or under his control, 
and praying, among other things, for an injunction. On the day following, the injunc¬ 
tion was issued as prayed by the bill. 

On the 20th November the defendants answered the bill, and the case rested until the 
5th of December. 

On the 4th of December Governor Warmoth issued the proclamation before cited, 
whereupon the judge, E. H. Durell, without any application or motion whatever made 
in the cause, issued the following order: 


“Circuit court of the United States, fifth circuit and district of Louisiana, in equity. 

“William P. Kellogg) 

vs. > No. 6830. 

‘ H. C. Wabmoth et al. ) 


“Whereas Henry C. Warmoth, one of the respondents herein, has, in violation of the 
restraining order herein, issued the following proclamation and returns of certain persons 
claiming to be a board of returning officers, all in violation and contempt of said re¬ 
straining order, as follows, viz, &c., &c.: 

“Now, therefore, in order to prevent the further obstruction of the proceedings in this 
cause, and, further, to prevent a violation of the orders of this court, to the imminent 
danger of disturbing the public peace, it is hereby ordered that the marshal of the United 
States for the district of Louisiana shall forthwith take possession of the building known 
as the Mechanics’ Institute, and occupied as the State-house for the assembling of the 
legislature therein, in the city of New Orleans, and hold the same subject to the further 
order of this court, and meanwhile to prevent all unlawful assemblage therein under the 
guise or pretext of authority claimed by virtue of pretended canvass and returns made 
by said pretended returning officers in contempt and violation of said restraining order; 
but the marshal is directed to allow the ingress and egress to and from the public offices? 
in said building of persons entitled to the same. 


“E. H. DURELL.” 


554 


SENATE ELECTION CASES. 


This was done on the night of the 5th of December, and at 2 o’clock on the morning 
of the 6th of December Marshal Packard, with a detachment of United States soldiers, 
seized the State-house and held it for weeks. 

Under that order this pretended legislature was organized, and the members only who 
were returned by the Lynch board were permitted to enter the hall or particpate in the 
organization. This organization continued to be protected by the military power of the 
United States through the extra session into the regular, which began its session on the 
6th day of January, and all the time under the protection of the military authority of 
the United States, and, indeed, which protection has continued to this day. It will be 
proper to observe that Kellogg commenced his proceedings in the United States courts 
on the 16th of November. A few days thereafter, on the 27th of November, Kellogg 
writes to Attorney-General Williams the following: 

4 4 1 therefore respectfully suggest that General Emory, who I think appreciates the 
necessity and sympathizes with the Republican party here, be instructed to comply 
with any requisition that the United States courts may make upon him in support of 
its mandates and to preserve peace. As at present advised, I think General Emory 
understands that he is to use the troops in no contingency without instructions from 
Washington.” 

On December 3 the following order was received from Washington: 

Department of Justice, December 3, 1872. 

S. B. Packard, Esq., 

United States Marshal , New Orleans , La.: 

You are to enforce the decrees and mandates of the United States courts, no matter 
by whom resisted, and General Emory will furnish you with all necessary troops for 
that purpose. 

GEO. H. WILLIAMS, 

Attorney- General. 

On the night of the 5th of December the mandate of Judge Durell was made, and on 
the morning of the 6th the military, in pursuance of the order of Attorney-General 
Williams, seized the State-house, and the plot to seize the State government of Louisi¬ 
ana was consummated. 

The simple detail of these facts ought to be sufficient in themselves to characterize 
the whole transaction without any illustration upon our part. There was not a step 
taken in the whole proceeding that is to be justified; there is no single act to be sup¬ 
ported by any resort to reason, law, or justice. The reckless assumption of Judge Du¬ 
rell to interpose in matters wholly belonging to the State authorities, and in terms pro¬ 
hibited from doing what he did by the very law of Congress under which he pretended 
to derive authority to act, is beyond all precedent, and one cannot adequately charac¬ 
terize it in language to be used here. The atrocity of his action in directing the marshal 
of the United States to seize the State-house, where the legislature of the State was to 
convene, and further directing him to allow certain of its members only to enter it, has 
but few parallels anywhere, and none before in American history. The whole proceed¬ 
ing from its inception down to its final consummation was a gross usurpation accom¬ 
panied with every species of fraud and tyranny. The body that was organized under 
this mandate and its military enforcement is not entitled to any legal existence that any 
American should acknowledge. The whole is a product of fraud, conspiracy, and of 
armed force, and is entitled to no consideration. 

We wish it to be remembered that we are not inquiring into the component parts ol 
a legislative body. Each house of the legislature must do that for itself. We are in¬ 
quiring into the aggregate character of the body as organized and as it represents itsell 
to be—a legislature; how it was brought into being; how supported; and under what 
authority. We find no single element in it to constitute it a legislature representing 
the free people of Louisiana under their constitution and laws; but, on the contrary, 
simply a body organized under the mandate of a Federal judge supported by the armed 
force of the United States, based upon a pretended election found by a returning board 
without a single official return, and not having a tittle of authority, and acting in viola¬ 
tion and in defiance of all law. We find that body, pretending to be the legislature of 
Louisiana, the mere creature of a conspiracy as bold, as reckless, and as wicked as any 
that has ever disgraced the annals of history. We speak thus strongly because our in¬ 
stincts as American citizens prompt us to the reprobation it so signally deserves. This 
body thus organized chose P. B. S. Pinchback a Senator in Congress for the period he 
claims. 

The large mass of the members of it were never elected in fact; the returning board 
declaring them to be elected had not a single power to do so; it never had an official re¬ 
turn before jt. Judge Durell had no power to issue his mandate and the troops had no 


THE LOUISIANA CASES, 1873-80. 


555 


right to enforce it. In the whole tragedy of events, as each succeeded the other, there 
was not one single act that could for a moment give a color of right to any other. Every 
one was an undoubted wrong, crime, or usurpation, and yet all combined, and nothing 
else, organized this body and kept it in being. Can such a body, we ask, so organized, 
put upon the Senate and upon the people of Louisiana their creature, and he one of the 
main conspirators? Kellogg, Pinchback, Casey, Packard, Durell, and Williams—names 
indelibly written upon every page of this most unnatural history of political crime and 
folly! There is not a single act in the whole proceeding to mitigate the unqualified 
condemnation it must receive at the hands of every honest man and oi every sincere 
lover ot American liberty and of constitutional government. 

We have stated that the Lynch board, pretending to canvass the returns, had no legal 
existence; that no official returns were before it to canvass; that the order of Judge 
Durell was not only void for want of jurisdiction, but that it was a gross usurpation. 
To sustain all this it is not necessary to depend upon our own declarations; but we recur, 
and with pleasure, to the able report so often referred to. In addition to what we have 
already quoted upon this subject, we give the following. In speaking of this order of 
Judge Durell, and in connection with it of the De Feriet board, the committee say on 
page 17: 

“ It is impossible to conceive of a more irregular, illegal, and in every way inexcusable 
act on the part of a judge. Conceding the power of the court to make such an order, 
the judge out of court had no more authority to make it than had the marshal. It has 
not even the form of judicial process. It was not sealed, nor was it signed by .the clerk, 
and had no more legal effect than an order issued by any private citizen. 

“ There had been no amendment of the bill of complaint. The law of November 20 
had been promulgated. The De Feriet board had been appointed in pretended pursu¬ 
ance thereof. Whether, under the constitution, the governor had the power, in the 
vacation of the legislature, to appoint that board, upon the ground that the act of 
November 20 created offices, and therefore vacancies in office, your committee do not 
inquire. But it is understood that the constitution has been so construed in that State, 
and that Judge Dibble was appointed by the governor under similar circumstances. 

“The De Feriet board, therefore, had color of official existence. Their canvass was 
completed and the result promulgated under color of the State law, and it is clear that 
this gave the Federal court no more right to seize the State-house than to seize the 
Capitol.’ ’ 

Further, in speaking of Judge Durell, the committee say on pagq 27: 

“Viewed in any light in which your committee can consider them, the orders and 
injunctions made and granted by Judge Durell in this cause are most reprehensible, 
erroneous in point of law, and are wholly void for want of jurisdiction; and your com¬ 
mittee must express their sorrow and humiliation that a judge of the United States 
should have proceeded in such flagrant disregard of his duty, and have so far overstepped 
the limits of Federal jurisdiction.” 

Again, on page 28, the committee say: 

“But for the interference of Judge Durell in the matter of this State election, a mat¬ 
ter wholly beyond his jurisdiction, the McEnery government would to-day have been 
the de facto government of the State. Judge Durell interposed the Army of the United 
States between the people of Louisiana and the only government which has the sem¬ 
blance of regularity, and the result of this has been to establish the Kellogg government, 
so far as that State now has any government. For the United States to interfere in a 
State election, and by the employment of troops set up a governor and legislature with¬ 
out a shadow of right, and then to refuse redress of the wrong upon the ground that to 
grant relief would be interfering with the rights of the State, is a proposition difficult to 
utter with a grave countenance. Besides, it is impossible to determine to what extent 
the supreme court may have been influenced in rendering this decision by the fact that 
the Kellogg government, the creation of the Lynch board, had already been established, 
and the expectation that it would be sustained by Federal authority.” 

Again, the committee, in discussing another point of the subject, allude incidentally 
to the manner in which the Kellogg legislature was organized. The committee say, on 
page 47 of their report: 

“In November, 1872, Judge Howe, of the supreme court, resigned, and Governor War- 
moth commissioned J. H. Kennard to fill the vacancy. After the Kellogg legislature was 
organized under Judge Durell’s injunction, enforced by United States troops, the house 
of representatives of that legislature pretended to impeach and suspend Governor War- 
moth, whereupon Pinchback, who had been elected president of the senate in place of 
Lieutenant-Governor Dunn, deceased, which under the constitution made him lieuten¬ 
ant-governor, proclaimed himself acting governor in place of Warmoth, impeached and 
suspended. Pinchback afterward nominated Morgan, who was confirmed by the senate, 
to fill the same vacancy.” 


556 


SENATE ELECTION CASES. 


Also, we cannot refrain from giving the following from the chairman of the committee, 
Mr. Morton, who in a dissenting opinion used this language respecting Judge Durell and 
his official conduct: 

“The conduct of Judge Durell, sitting in the circuit court of the United States, can¬ 
not he justified nor defended. He grossly exceeded his jurisdiction, and assumed the 
exercise of powers to which he could lay no claim. * * * 

“ But the pretense that in a suit to perpetuate testimony the court could go beyond 
the natural and reasonable jurisdiction to decide who constituted the legal returning 
board under the laws of Louisiana, and to enforce the rights of such as it might deter¬ 
mine to be members of that board and to enjoin others who were not, is without any 
foundation in law or logic. 

‘ ‘ In the Antoine case Judge Durell not only assumed to determine who constituted 
the legal returning board, but to prescribe who should be permitted to take part in the 
organization of the legislature and to enjoin all persons from taking part in such organ¬ 
ization who were not returned by the Lynch board as elected; and this assumption of 
jurisdiction was made in the face of the express provision in the act of 1870 that its ben¬ 
efits should not extend to candidates forelectors, for Congress, or lor the State legislature. 
His order, issued in the Kellogg case to the United States marshal to take possession of 
the State-house for the purpose of preventing unlawful assemblages, under which the 
marshal called to his aid a portion of the Army of the United States as a posse comita- 
tus, can only be characterized as a gross usurpation. ’ ’ 

Thus it appears that the whole committee regarded the acts of Judge Durell as a gross 
usurpation; yet upon that act alone rests the organization of the Kellogg legislature. A 
body thus organized and thus constituted, as shown by all the facts in the case, is not 
entitled to any respect, and particularly is not entitled to impose a Senator upon this 
chamber, upon the country, and especially upon the people of Louisiana, as their repre¬ 
sentative upon this floor. In contrast with this body, we know there was a rival body, 
a rival State government, so far as the State and local officers were concerned; a rival 
government, too, not depending upon armed forces tor organization and existence. A 
government, though not in active power, was still in being. That rival government, the 
facts most conclusively show, depended for its legal existence— 

First. Upon the official returns of the votes cast at the regular election, and canvassed 
and counted by a board of returning officers known as the De Feriet board, appointed by 
the governor, as he claimed he had the right to do under the act of November 20, 1872, 
and the board, in the opinion of the undesigned, that possessed the power to canvass the 
returns. 

Second. Upon the official returns as canvassed and counted by the board elected by 
the senate of the McEnery legislature, as provided under the same act, and known as 
the Forman board. 

Third. Upon the undoubted fact that the official returns were true and gave the results 
as ascertained by both boards. 

Fourth. Upon the undoubted fact that the people of Louisiana are satisfied that theii 
real will was expressed in these official returns, and that this—the McEnery—is their 
chosen government. 

Fifth. Upon the undoubted fact that nothing could have prevented its going into 
peaceful operation and being the government to-day, except for the interposition of Judge 
Durell and his associates in that crime, supported by the armed forces of the United 
States. 

Upon the other hand, the Kellogg government depends— 

First. Upon the canvass of a returning board having no authority and having no offi¬ 
cial returns to canvass. 

Second. Upon the illegal order of Judge Durell, and the enforcement of it by United 
States troops. 

Third. Upon the military protection of the United States, and upon that protection 
alone, as it is an undoubted fact that the withdrawal of this protection would result in 
an instant dissolution and dispersion of his government. 

Can the Senate hesitate to determine between such governments? The interposition 
of mere force without cause and without right, by which one for the present may be put 
up and the other down, should not deter us in determining which is the rightful one. The 
soldiers of the United States should not be allowed to step in between our judgment and 
our duty. The day is not yet upon us, we trust, when the sword is to settle questions 
alone for us to determine. Taking all the facts as they appear in the case before us, from 
the inception of each rival body to the final consummation in their respective organiza¬ 
tions, we can determine between them. It is our duty to do so; and we have facts suffi¬ 
ciently numerous and authentic to determine fairly and intelligently between them. Each 
has chosen Senators, and both are here with certificates. 

There can be no doubt that where there are rival bodies, each claiming to be the right- 


557 


THE LOUISIANA CASES, 1873-80. 

ful legislature of a State, and each presenting a Senator for admission upon this floor, we 
must judge between them, for the reason that we are to judge of the elections, the qual¬ 
ifications, and returns of our own members; and in this we are to know whether the 
body choosing a Senator is the legislature having the constitutional right to do so, and 
that such an one did choose a Senator. 

This was clearly submitted in the case of Robbins and Potter, contesting Senators from 
Rhode Island. Mr. Poindexter, who submitted the majority report in that case, says: 

‘‘There was but one governor and but one senate in the State claiming to be a part of 
the general assembly. If there had existed another body of men, however chosen, con¬ 
tending for the offices of the governor and senators in the State, it will not be denied that 
their respective rights might be the subject of inquiry in deciding a contested election in 
the Senate of the United States.” 

The right of the Senate is undoubted to judge in this respect. Its power is not lim¬ 
ited, for the sound reason that its independence can only be absolutely preserved in 
possessing such aright. In exercising it here, we should not be capricious, but governed 
in our conduct by rules that good sense, honest intention, and a desire for truth and 
justice should naturally inspire. No other department of the Government ought to con¬ 
trol it; no other department of the Government should be allowed, under any pretext or 
in the exercise of any power, to trench upon it. It is a primary right, for in its free and 
absolute exercise the very life, existence, and organization of free legislative bodies de¬ 
pend. 

Coming to the main point again, should the Senate hesitate between the rival govern¬ 
ments ? How can the Senate recognize the Kellogg government, stamped, as it is, all 
over with fraud, conspiracy, and force? There is not an element of free constitutional 
government in it. Mere intruders and usurpers in all departments of it, how shall the 
Senate, in respect for constitutional government, admit that such a body as that organ¬ 
ized under the order of Durell shall impose upon us a Senator? We might receive 
with just as much plausibility and complacency a Senator from the soldiery who guarded 
that body when it went through the forms of choosing one. The bayonet organized it, 
kept it in being, protected it by day and by night, and without it no one would be here 
pressing a claim to a seat by virtue of any authority from it. 

Speaking for ourselves, we cannot in any manner acknowledge any such election. We 
cannot give any respect or efficacy to the certificate under consideration as that of a 
rightful governor, and must, therefore, declare that in our opinion P. B. S. Pinchback is 
not entitled to a seat as a Senator from the &cJte of Louisiana. 

It is said that the Senate is bound, or ought to be bound, by decisions of the judicial 
tribunals of the State when inquiring into the existence of a government or of its officers; 
also by the action of other departments of the State government; also by the late act of the 
President and by reason of the possession of the office fora length of time. We shall only 
briefly remark that this body is bound by nothing in the exercise of its undoubted power. 
But admitting that any or all of these combined should have more or less influence upon 
the judgment of the Senate in coming to conclusions, we may be permitted tb say that, 
in regard to the judicial action of the courts of Louisiana in relation to this subject, the 
question in issue never was fairly presented, and with the further remark that it is pain¬ 
fully evident that a majority of the court deciding cases having relevancy at all to the sub¬ 
ject was in complicity with the Kellogg government to maintain its power; and so with 
the other departments of the State government, for all depended for their very existence 
upon the official being of Kellogg. As to the action of the President having any bind¬ 
ing force upon the Senate, we say that his power to act relates alone to one thing, and 
that is the suppression of violence when legally called upon for aid in suppressing such 
violence. His action cannot bind beyond the simple fact and its real dependents; it de¬ 
cides no right for us or for Congress. One word as to the continuous possession of Kellogg, 
and which it is claimed gives him some standing to be considered in this body. His pos¬ 
session is that of fraud and force, and this possession is to-day only held by this force. 
It is the possession of might against right, and the weakness of the title will at once be 
witnessed upon the withdrawal of the force which keeps him in place. In our opinion, 
there is nothing in the matters that would be set up to secure a recognition of the Kel¬ 
logg government. The whole is a crime against our civilization and a blot upon our free 
institutions. 

WILLIAM T. HAMILTON. 

ELI SAULSBURY. 

Thuksday, February 11, 1875. 

Mr. Hamilton, of Maryland, submitted the views of the minority of the Committee on 
Privileges and Elections, to whom were referred the credentials of P. B. S. Pinchback; 
which were ordered to be printed, to accompany the report. 

[See Report No. 626, submitted February 8, 1875.] 


558 


SENATE ELECTION CASES. 


Monday, February 15, 1875. 

On motion by Mr. Morton, the Senate proceeded to the consideration of the resolution 
reported by the Committee on Privileges and Elections on the 8th instant, that P. B. S. 
Pinchback be admitted as a Senator from the State of Louisiana for the term of six years 
beginning on the 4 th of March, 1873. 

Pending debate, 

A message from the House, &c. 

[The debate is found on pages 1277-1289 of the Congressional Record, vol. iii, part 2. J 

Tuesday, February 16, 1875. 

The Senate resumed, &c. 

[The debate is found on pages 1306-1310 of the Congressional Record, vol. iii, part 2.] 

Wednesday, February 17, 1875. 

The Senate resumed the consideration of the resolution reported by the Committee on 
Privileges and Elections to admit P. B. S. Pinchback to a seat in the Senate as a Senator 
from the State of Louisiana; and, 

After further debate, 

On motion by Mr. Morrill, of Maine, at 3 o’clock and 45 minutes p. m. (Thursday), that 
the resolution lie on the table, it was determined in the affirmative—yeas 39, nays 22. 

On motion by Mr. Morton, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Allison, Anthony, Bayard, Bogy, Conk- 
ling, Cooper, Davis, Dennis, Eaton, Edmunds, Fenton, Frelinghuysen, Goldthwaite, 
Gordon, Hager, Hamilton of Maryland, Hamilton of Texas, Ingalls, Johnston, Kelly, 
McCreery, Merrimon, Morrill of Maine, Morrill of Vermont, Norwood, Ransom, Robert¬ 
son, Saulsbury, Schurz, Scott, Sprague, Stevenson, Stockton, Thurman, Tipton, Wad- 
leigh, Washburn, Windom, and Wright. 

Those who voted in the negative are Messrs. Boreman, Cameron, Chandler, Clayton, 
Conover, Cragin, Ferry of Michigan, Flanagan, Hamlin, Harvey, Howe, Jones, Logan, 
Morton, Oglesby, Patterson, Pratt, Ramsey, Sargent, Spencer, Stewart, and West. 

So the motion was agreed to. 

[The debate is found on pages 1327-1353, 1358-1382 of the Congressional Record, vol. 
iii, part 2.] 

Thursday, February 18, 1875. 

Mr. Boutwell presented a memorial of citizens of Massachusetts in favor of the admis¬ 
sion of P. B. S. Pinchback as a member of the United States Senate from the State oi 
Louisiana. 


x / [Special session of Senate, March, 1875.] 

Friday, March 5, 1875. 

Mr. Morton submitted the following resolution: 

‘ ‘ Resolved , That P. B. S. Pinchback be admitted as a Senator from the State of Lou¬ 
isiana for the term of six years beginning on the 4th of March, 1873.” 

Ordered , That it lie on the table and be printed. 

Monday, March 8, 1875. 

The Senate proceeded to consider the resolution providing for the admission of P. B. S. 
Pinchback to a seat in the Senate as a Senator from the State of Louisiana; and, 
Pending debate, 

On motion by Mr. Sherman, the Senate proceeded to the consideration of executive 
business. 

[The debate is found on pages 3-7 of the Congressional Record, vol. iv, part 1.] 

Tuesday, March 9, 1875. 

The Senate resumed, &c. 

[The debate is found on pages 9-17 of the Congressional Record, vol. iv, part 1.] 

Wednesday, March 10, 1875. 

The Senate resumed, &c. 

[The debate is found on pages 17-25 of the Congressional Record, vol. iv, part 1.] 

Friday, March 12, 1875. 

The Senate resumed, &c. 

[The debate is found on pages 32-41 of the Congressional Record, vol. iv, part 1.] 


THE LOUISIANA CASES, 1873-80. 559 

Saturday, March 13, 1875. 

The Senate resumed, &c.; and, 

On motion by Mr. Edmunds to amend the resolution by inserting the word “not” 
before the word “admitted,” 

Pending debate, 

On motion by Mr. Conkling, the Senate proceeded to the consideration of executive 
business. 

[The debate is found on pages 41-53 of the Congressional Record, vol. iv, part 1.] 

Monday, March 15, 1876. 

The Senate resumed, &c.; and 

The question being on the amendment proposed by Mr. Edmunds, viz, insert the word 
‘ ‘ not ’ ’ before the word ‘ ‘ admitted, ’ ’ 

Pending debate, 

On motion by Mr. Morton, the Senate proceeded to the consideration of executive busi¬ 
ness. 

[The debate is found on pages 55-62 of the Congressional Record, vol. iv, part l.J 

Tuesday, March 16, 1875. 

The Senate resumed the consideration of the resolution to admit P. B. S. Pinchback 
to a seat in the Senate as a Senator from the State of Louisiana; and, 

After debate, 

On motion by Mr. West that the further consideration thereof be postponed to the 
second Monday in December next, it was determined in the affirmative—yeas 33, nays 30. 

On motion by Mr. West, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Alcorn, Allison, Boutwell, Bruce, Bum- 
side, Cameron of Pennsylvania, Cameron of Wisconsin, Clayton, Conover, Cragin, Dawes, 
Dorsey, Ferry of Michigan, Frelinghuysen, Hamilton, Hamlin, Harvey, Howe, Ingalls, 
Jones of Nevada, McMillan, Mitchell, Morrill of Maine, Morrill of Vermont, Morton, 
Oglesby, Paddock, Patterson, Sargent, Sherman, Spencer, West, and Windom. 

Those who voted in the negative are Messrs. Bayard, Bogy, Booth, Caperton, Chris- 
tiancy, Cockrell, Cooper, Davis, Eaton, Goldthwaite, Gordon, Hitchcock, Johnson of 
Tennessee, Johnston of Virginia, Jones of Florida, Kelly, Keman, McCreery, McDonald, 
Maxey, Merrimon, Norwood, Randolph, Ransom, Saulsbury, Stevenson, Thurman, Wal¬ 
lace, Whyte, and Withers. 

So the motion was agreed to. 

[The debate is found on pages 62-91 of the Congressional Record, vol. iv, part 1.] 


[First session of the Forty-fourth Congress.] 

Thursday, December 9, 1875. 

Mr. West presented a letter* of W. L. McMillen, asking permission to withdraw from 
the files of the Senate his credentials as Senator-elect from the State of Louisiana, and 
submitted the following order: 

Ordered , That the request of W. L. McMillen, heretofore claiming a seat in the Sen¬ 
ate from the State of Louisiana, for the return of his credentials be granted. 

Tuesday, December 14,1875. 

Ordered, That the request of William L. McMillen, heretofore claiming a seat in the 
Senate from the State of Louisiana, for the return of his credentials be granted. 

After debate, 

On the question to agree thereto, it was determined in the affirmative—yeas 30, nays 28. 

On motion by Mr. Howe, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Allison, Boutwell, Bruce, Burnside, 
Cameron of Wisconsin, Christiancy, Clayton. Conkling, Conover, Cragin, Edmunds, Ferry, 
Frelinghuysen, Hamlin, Harvey, Hitchcock, Howe, Ingalls, McMillan, Morrill of Ver¬ 
mont, Morton, Paddock, Patterson, Robertson, Sargent, Sherman, Spencer,West,Windom, 
and Wright. 

Those who voted in the negative are Messrs. Bayard, Bogy, Caperton, Cockrell, Cooper, 
Davis, Dawes, Eaton, English, Goldthwaite, Gordon, Johnston, Jones of Florida, Kelly, 

* A copy of the letter is found on page 190 of the Congressional Record, vol. iv, part 1. 



560 


SENATE ELECTION CASES. 


Kernan, Key, McCreery, McDonald, Merrimon, Norwood, Randolph, Ransom, Saulsbury, 
Stevenson, Thurman, Wallace, Whyte, and Withers. 

So it was 

Ordered , That the request of Mr. McMillen be granted, and that his credentials be 
returned to him by the Secretary. 

[The debate is found on pages 200-204 of the Congressional Record, vol. iv, part 1.] 
CREDENTIALS OF MR. MARR. 

Monday, December 20, 1875. 

Mr. Bayard presented a paper signed by John McEnery as governor of Louisiana and 
purporting to be the credentials of Robert H. Marr, appointed a Senator to fill the 
vacancy occasioned by the resignation of William L. McMillen. 

Ordered , That it lie on the table. 

CREDENTIALS OF MR. EUSTIS. 

Tuesday, January 18, 1876. 

Mr. Thurman presented papers purporting to be the credentials of J. B. Eustis as a 
Senator from the State of Louisiana for the term ending March 3, 1879. 

Ordered , That they lie on the table. 

[The debate and a copy of the credentials are found on pages 451-455 of the Con¬ 
gressional Record, vol. iv, part 1.] 

Monday, January 24, 1876. 

On motion by Mr. Morton, 

Ordered , That the papers purporting to be the credentials of J. B. Eustis as a Senator 
from the State of Louisiana he referred to the Committee on Privileges and Elections. 

Wednesday, Januaiy 26, 1876. 

Mr. West presented a memorial* of certain State senators of Louisiana in relation to 
the election of Hon. James B. Eustis as United States Senator from that State; which 
was referred to the Committee on Privileges and Elections, and ordered to he printed. 

Friday, January 28, 1876. 

Mr. Morton, from the Committee on Privileges and Elections, to whom were referred 
papers purporting to be credentials of J. B. Eustis, claiming a seat in the Senate as a 
Senator from the State of Louisiana, submitted the following report: 

REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Morton (chairman), Logan, Mitchell, Wadleigh, 
Cameron of Wisconsin, McMillan, Saulsbury, Merrimon, and Cooper.] 

The Committee on Privileges and Elections, to whom were referred the papers relating 
to the election of J. B. Eustis to a seat in this body by the legislature of the State of 
Louisiana, beg leave to report: 

That in their opinion there is no vacancy in the office of Senator from the State of 
Louisiana, P. B. S. Pinchback having been elected in January, 1873, to the term begin¬ 
ning on the 4th of March, 1873. They therefore recommend that the papers relating to 
Mr. Eustis be laid upon the table. 

Thursday, February 3, 1876. 

On motion by Mr. Morton, the Senate proceeded to consider the resolution submitted 
by him March 5, 1875, for the admission of P. B. S. Pinchback to a seat in the Senate 
as a Senator from the State of Louisiana; and, 

On motion by Mr. Edmunds, the Senate proceeded to the consideration of executive 
business. 

Friday, February 4, 1876. 

The Senate resumed, &c. 

The question being on the amendment proposed by Mr. Edmunds, viz, before the 
word “admitted,” in the said resolution, insert the word “not,” 

Pending debate, 

On motion by Mr. Cameron, of Pennsylvania, the Senate proceeded to the considera¬ 
tion of executive business. 

([The debate is found on pages 886-889 of the Congressional Record, vol. iv, part 1.] 

* Found in Senate Miscellaneous, 44th Cong., 1st sess., No. 41. 




THE LOUISIANA CASES, 1873-80. 561 


MONDAY, February 7, 1876. 

The Senate resumed, &c. 

[The debate is found on pages 907-913 of the Congressional Record, vol. iv, part l.J 


Tuesday, February 8, 1876. 

The Senate resumed, &c. 

[No debate took place.] 

Monday, February 14, 1876. 

The Senate resumed, &c. 

[The Congressional Record states (page 1065, vol. iv, part 2) that Mr. Morton ’3 speech 
nade this day would be printed in the Appendix, but it does not appear there.] 

Wednesday, March 1, 1876. 

The Senate resumed, &c. 

[The debate is found on pages 1382-1392 of the Congressional Record, vol. iv, part 2.] 

Thursday, MarchZ, 1876. 

The Senate resumed, &c. 

[No debate took place.] 

Friday, March 3, 1876. 

The Senate resumed, &c. 

[The debate is found on pages 1436-1444 of the Congressional Record, vol. iv, part 2.] 


Monday, March 6, 1876. 

The Senate resumed, &c. 

[No debate took place.] 


. Tuesday, March 7, 1876. 

The Senate resumed, &c. 

[The debate is found on pages 1511-1516 of the Congressional Record, vol. iv, part 2.] 


Wednesday, March 8, 1876. 

The Senate resumed the consideration of the resolution to admit P. B. S. Pinchback 
to a seat in the Senate as a Senator from the State of Louisiana; and, 

The question being on the amendment proposed by Mr. Edmunds, viz, before the word 
“admitted ” in the said resolution insert the word “not,” 

After debate, it was determined in the affirmative—yeas 32, nays 29. 

On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Bayard, Caperton, Christiancy, Cock¬ 
rell, Cooper, Davis, Dennis, Eaton, Edmunds, English, Gordon, Johnston, Jones of Flor¬ 
ida, Kelly, Kernan, Key, McCreery, McDonald, Maxey, Merrimon, Morrill of Maine, 
Morrill of Vermont, Norwood, Paddock, Randolph, Ransom, Saulsbury, Stevenson, Thur¬ 
man, Wallace, Whyte, and Withers. 

Those who voted in the negative are Messrs Allison, Anthony, Boutwell, Bruce, Cam¬ 
eron of Pennsylvania, Conkling, Conover, Cragin, Dorsey, Ferry, Frelinghuysen, Ham¬ 
ilton, Hamlin, Harvey, Hitchcock, Howe, Ingalls, Jones of Nevada, Logan, McMillan, 
Mitchell, Morton, Patterson, Sargent, Sharon, Sherman, Spencer, West, and Windom. 

So the amendment was agreed to. 

On the question to agree to the resolution as amended, it was determined in the affirm¬ 
ative—yeas 32, nays 29. 

On motion by Mr. Morton, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Bayard, Caperton, Christiancy, Cock¬ 
rell, Cooper, Davis, Dennis, Eaton, Edmunds, English, Gordon, Johnston, Jones of Flor¬ 
ida, Kelly, Kernan, Key, McCreery, McDonald, Maxey, Merrimon, Morrill of Maine, 
Morrill of Vermont, Norwood, Paddock. Randolph, Ransom, Saulsbury, Stevenson, Thur¬ 
man, Wallace, Whyte, and Withers. 

Those who voted in the negative are Messrs. Allison, Anthony, Boutwell, Bruce, Cam¬ 
eron of Pennsylvania, Conkling, Conover, Cragin, Dorsey, Ferry, Frelinghuysen, Ham¬ 
ilton, Hamlin, Harvey, Hitchcock, Howe, Ingalls, Jones o£ Nevada, Logan, McMillan, 
Mitchell, Morton, Patterson, Sargent, Sharon, Sherman, Spencer, West, and Windom. 

So it was 

Resolved, That P. B. S. Pinchback be not admitted as a Senator from the State ol 
Louisiana for the term of six years beginning on the 4th of March, 1873. 

[The debate is found on pages 1545-1558 of the Congressional Record, vol. iv, part 2. ] 

S. Doc. 11-36 



562 


SENATE ELECTION CASES. 


[Special session of Senate, March, 1877.] 

Thursday, March 8, 1877. 

Mr. Thurman submitted the following resolution for consideration: 

“ Resolved , That the credentials of J. B. Eustis, claiming to be a Senator from the State 
of Louisiana, be taken from the files and referred to the Committee on Privileges and 
Elections when that committee shall be appointed.” 


Friday, March 9,1877. 

On motion by Mr. Thurman, the Senate proceeded to consider the resolution yesterday 
submitted by him for the reference of the credentials of J. B. Eustis to the Committee 
on Privileges and Elections; and 

The resolution was agreed to, as follows: 

“ Resolved , That the credentials of J. B. Eustis, claiming to be a Senator from the State 
of Louisiana, be taken from the files and referred to the Committee on Privileges and 
Elections.” 


[First session of the Forty-fifth Congress.] 

Thursday, October 18, 1877. 

Mr. Thurman submitted a motion that Mr. J. B. Eustis be now sworn as a Senator 
from the State of Louisiana for the term expiring March 3, 1879. 

Mr. Conkling objected to the consideration of the motion, and raised the question of 
order, viz, that the credentials of Mr. Eustis having been referred to the Committee on 
Privileges and Elections at the last special session of the Senate and not having been 
reported upon, were not before the Senate, but still in possession of the committee under 
the fifty-ninth rule, which prescribes that all subjects referred to committees and not 
reported upon at the close of a session of Congress shall be returned to the office of the 
Secretary, to be by him retained until the next session, when they shall be returned to 
the several committees. 

The Vice-President submitted the question of order to the Senate in the following 
words: 

“Shall all subjects referred to committees and not reported upon at the close of the 
last preceding session of this body, in March last, and returned to the office of the Sec¬ 
retary of the Senate, be referred to the several committees to which they had previously 
been referred? ” 

And it was determined in the affirmative. 

On motion by Mr. Thurman that the Committee on Privileges and Elections be dis¬ 
charged from the further consideration of the credentials of J. B. Eustis, 

Mr. Edmunds objected to the consideration of the motion this day. 

When, 

On motion by Mr. Thurman (at 3 o’clock and 16 minutes p. m.), the Senate adjourned. 

[The debate is found on pages 107, 108 of the Congressional Record, vol. vi.] 

Friday, October 19, 1877. 

The Senate proceeded to consider the motion yesterday submitted by Mr. Thurman to 
discharge the Committee on Privileges and Elections from the further consideration of 
the credentials of J. B. Eustis; and, 

After debate, 

On motion by Mr. Thurman, 

Ordered , That the motion lie on the table. 

[The debate is found on pages 109-115 of the Congressional Record, vol. vi.] 

Saturday, December 1, 1877. 

Mr. Wadleigh, from the Committee on Privileges and Elections, to whom were referred 
papers purporting to be credentials of James B. Eustis, claiming a seat as a Senator from 
the State of Louisiana, reported the following resolution: 

“ Resolved , That James B. Eustis is lawfully entitled to a seat in the Senate of the 
United States from the State of Louisiana, from the 12th day of January, 1876 for the 
term ending March 3, 1879; and that he be admitted thereto upon taking the proper 
oath.” v p 

Mr. Ingalls asked and obtained leave of the Senate to submit the views* of a minority 
of the Committee on Privileges and Elections on the papers purporting to be credentials 


* Never submitted. 





THE LOUISIANA CASES, 1873-80. 563 


of James B. Eustis, claiming a seat in the Senate as a Senator from the State of Louisi¬ 
ana. 


EEPOET OF COMMITTEE. 


[The committee consisted of Messrs. Wadleigh (chairman), Mitchell, Cameron of Wis¬ 
consin, McMillan, Hoar, Ingalls, Saulsbury, Merrimon, and Hill.] 


In the Senate of the United States. 

Decembee 1, 1877.—Ordered to he printed. 

Mr. Wadleigh, from the Committee on Privileges and Elections, submitted the fol¬ 
lowing report: 

The Committee on Privileges and Elections, to whom were referred the credentials of 
James B. Eustis for a seat in the Senate of the United States from the State of Louisi¬ 
ana for the term of six years commencing March 4, 1873, ask leave to submit the fol¬ 
lowing report: 

Mr. Eustis claims to have been elected on the 12th of January, 1876. The body which 
elected him was that formed by what is known as the Wheeler compromise; and there 
is no doubt that it was the lawful legislature of Louisiana. 

Two questions arise in this case: First, whether Mr. Eustis was lawfully elected; 
second, whether at the time of his election a vacancy existed which the legislature of 
Louisiana had the right to fill. 

The legislature of Louisiana on the 12th day of January, 1876, consisted of a house 
containing one hundred and eleven members and a senate with thirty-six senators. On 
the 11th day of January, 1876, the house voted to go into an election for United States 
Senator, and the senate on the same day refused to do so. On the 12th day of January, 
it appearing that there had been no election on the day before, sixty-four members of 
the house and twelve members of the senate, being a majority of all entitled to seats in 
both houses, met in joint convention and elected Mr. Eustis. 

Your committee find that although the senate refused to take part as such in said 
election, and although a m in ority of the senate only did take part in it, yet there was 
a substantial compliance with the act of Congress of 1866. Upon the constitutionality 
of that act your committee express no opinion. The Senate has repeatedly, however, 
by its action affirmed its constitutionality; and your committee feel bound by the prece¬ 
dents which the Senate has established. 

The second question, whether or not a vacancy existed at the time of Mr. Eustis’s 
election which the legislature of Louisiana had the right to fill, is one of some difficulty. 
At the time of said election Mr. P. B. S. Pinchback was the claimant for the same seat 
under two elections—one in 1873, the other in 1875. His credentials and claims under 
said elections had been presented to the Senate and by it referred to the Committee on 
Privileges and Elections. Said committee, on the 5th day of March, 1875, reported a 
resolution to the Senate that Mr. Pinchback be admitted thereto. On the 8th day of 
March, 1876, that resolution was amended so as to change it to a resolution that he be 
not admitted. The resolution was passed as thus amended on the same day. 

Your committee feel bound to regard that vote of the Senate as a final adjudication of 
the claims of Mr. Pinchback and a decision that he had no right to a seat. Mr. Eustis’s 
election took place while Mr. Pinchback’s case was pending in the Senate, and it may 
be contended with much force that until the final adjudication by the Senate of Mr 
Pinchback’s claims there was no vacancy which the legislature was authorized to fill. 

This question arose at the first session of the Twenty-third Congress, in the case oi 
Potter vs. Robbins, where a majority of the special committee of the Senate held that 
the legislature of Rhode Island had no authority to proceed to the election of another 
Senator until the seat of the Senator-elect had been vacated by a solemn decision of the 
Senate of the United States. Silas Wright, of New York, made a report in behalf of 
the minority of said committee, in which it was contended that if the election of Mr. 
Robbins was not made by the lawful legislature of the State it was absolutely void, and 
that therefore Mr. Potter’s election while Mr. Robbins’s claim to a seat in the Senate 
was still pending was valid. 

Your committee do not question the soundness of the rule laid down in that case, but 
are not disposed to apply it to this case, where the circumstances are very different. In 
the case of Potter vs. Robbins, Mr. Robbins had been admitted to the Senate, the com¬ 
mittee had before it both his credentials and those of Mr. Potter; but here there is no 
contest. The Senate never admitted Mr. Pinchback to his seat, but decided that he 
had no right thereto. 

This seat has long been vacant. Mr. Eustis is the only person who appears to claim 
it. The lawful character of the legislature which elected him is admitted. His election 


564 


SENATE ELECTION CASES. 


was substantially in compliance with the law of Congress. No one appears to contest 
his right to a seat. Under these circumstances your committee believe that Mr. Eustis 
should be admitted to the Senate, and report a resolution to that effect and recommend 
its passage. 


[Second session of the Forty-fifth Congress. ] 

Monday, December 10, 1877. 

On motion by Mr. Wadleigh, the Senate proceeded to consider the resolution reported 
by the Committee on Privileges and Elections declaring James B. Eustis entitled to a 
seat in the Senate as a Senator from the State of Louisiana; and, 

After debate, 

On the question to agree to the resolution, as follows: 

“ Resolved , That James B. Eustis is lawfully entitled to a seat in the Senate of the 
United States from the State of Louisiana, from the 12th day of January, 1876, for the 
term ending March 3, 1879, and that he be admitted thereto upon taking the proper 
oath,” 

It was determined in the affirmative—yeas 49, nays 8. 

On motion by Mr. Ingalls, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Anthony, Bailey, Bamum, Bayard, 
Beck, Booth, Bruce, Burnside, Chaffee, Cliristiancy, Cockrell, Coke, Davis of West Vir¬ 
ginia, Dawes, Dorsey, Eaton, Ferry, Garland, Gordon, Harris, Hereford, Hill, Johnston, 
Jones of Florida, Jones of Nevada, Kernan, Kirkwood, Lamar, McCreery, McDonald, 
McPherson, Matthews, Maxey, Merrimon, Mitchell, Morgan, Oglesby, Paddock, Patter¬ 
son, Plumb, Randolph, Ransom, Saulsbury, Teller, Thurman, Voorhees, Wadleigh, Wal¬ 
lace, and Withers. 

Those who voted in the negative are Messrs. Allison, Cameron of Wisconsin, Hamlin, 
Howe, Ingalls, McMillan, Morrill, and Saunders. 

So the resolution was agreed to. 

Mr. Eustis then appeared, and the oaths prescribed by law having been administered 
to him by the Vice-President, he took his seat in the Senate. 

[The debate is found on pages 82-87 of the Congressional Record, vol. vii, part 1.] 

COMPENSATION OF MR. PINCHBACK. 

Monday, April 17, 1876. 

Mr. Mitchell, from the Committee on Privileges and Elections, submitted a report 
(No. 274), accompanied by the following resolution. [Resolution found at end of report.] 

report of committee. 


In the Senate of the United States. 

April 17, 1876.—Ordered to be printed. 

Mr. Mitchell, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

The Committee on Privileges and Elections, having under consideration the question 
of the allowance proper to be made to P. B. S. Pinchback, late a contestant for a seat in 
the Senate from the State of Louisiana, submit the following report: 

The great length of time that elapsed between the beginning of the term for which Mr. 
Pinchback was a contestant and the date of the final determination of that contest by the 
Senate, as also the remarkably close vote by which such contest was decided, have im¬ 
pressed your committee with the belief that the full measure of compensation which the 
uniform action of the Senate heretofore has given to contestants should be allowed in this 
case. 

Your committee are advised by the journals of the Senate that the rule established by 
this body in similar cases is the payment to the contestant of the amount he would have 
been entitled to receive in case he had been admitted and served the time the contest was 
pending; in other words, an amount equal to the compensation and mileage of a Senator 
for the time covered by the contest. 

A few citations will suffice to show the uniformity of this rule. 

O. B. Hart, contesting the seat of A. Gilbert, of Florida, was paid from the contingent 
fund from the 1st to 28th of April, 1870, under the following resolution, passed May 11, 
1870 (Senate Journal, second session Forty-first Congress, pages 585 and 634): 


THE LOUISIANA CASES, 1873-80. 505 

“Resolved, That the Secretary of the Senate be directed to pay, out of the contingent 
the Senate, to O. B. Hart, claimant of a seat in the Senate from the State of 
r lorida, the usual mileage of a Senator, and monthly pay from the date of presenting 
his credentials until the passage of the resolution declaring him not entitled to a 
seat. ’ ’ 

P- Farrow and R. H. Whitely, contesting respectively with J. Hill and H. V. M. 
Miller, from Georgia, were paid from the 16th of February, 1870, to the 30th of January, 
1871, under the following resolution, passed February 25, 1871 (Senate Journal, third 
session Forty-first Congress, page 369): 

“ Resolved , That the Secretary of the Senate be directed to pay toH. P. Farrow and R. 
H. Whitely, contestants from the State of Georgia, compensation from the 16th day of 
February, 1870, the date of their election by the reorganized legislature of Georgia, to 
the 30th day of January, 1871, when the Senate decided they were not entitled to 
seats. ’ ’ 

Foster Blodgett, claiming a seat from the State of Georgia, was paid from March 4, 
1871, to December 19, 1871, in pursuance of the following resolution, passed January 9, 
1872 (Senate Journal, second session Forty-second Congress, page 94): 

‘ ‘ Resolved, That the Secretary of the Senate be directed to pay, out of the pay and 
mileage account, to Foster Blodgett, claiming a seat as Senator-elect from the State of 
Georgia, the pay and mileage of a Senator from March 4, 1871, to December 19, 1871, 
when the question of his right to his seat was determined by the Senate.” 

Again, J. C. Abbott, of Noi di Carolina, contesting the seat of Senator Ransom, was 
paid from March 4, 1871, to the 23d of April, 1872, under the following resolution: 

“ Resolved, That Joseph C. Abbott, late contestant for a seat in this body from the 
State of North Carolina, be allowed his salary from 4th of March, 1871, to the 23d of 
April, 1872, and one mileage each way.” 

This resolution was passed April 24, 1872. (See Senate Journal, second session Forty 
second Congress, page 595.) 

Numerous other citations might be adduced; these will suffice, however, to establish 
the uniform rule of the Senate. 

This committee, on the 8th of March, 1876, in reporting back Senate resolution No. 
10, to pay Francis W. Sykes, of Georgia, contesting with Senator Spencer, the compen¬ 
sation and mileage of a Senator from the 4th day of March, 1873, to the 28th day of 
May, 1874, when said contest was decided, submitted (by Mr. Cooper) the following 
report: 

‘ ‘ The rule established by the Senate in cases similar to the present one has been 
uniform. A person applying for a seat in this body by reason of an election by the 
legislature of a State, although his application has been refused and another adjudged 
entitled to the seat, has been paid the amount he would have been entitled to receive if 
he had been admitted and served the time the contest was pending. The action of the 
Senate upon such cases has been with such great unanimity as to call for little or no 
debate. The reasons therefor upon which the rule is based can only be surmised. It 
may be said the person claims his seat in pursuance of an implied duty imposed upon 
him to thus assert the right of his State to be represented in this body, which duty he 
owes to the public, and the expenses incurred in the performance of a public duty should 
be paid out of the common treasury. 

“A proper respect for the action of a State in the choice of a Senator may also justify 
the rule. 

“The committee see nothing in the present case to take it out of the general rule; 
and therefore recommend the passage of the resolution.” 

The case of Pinchback is (considering the final action of the Senate in the contests of 
the two cases) parallel with that of Sykes in this, that each claimed under an election 
by a body adjudged by the Senate afterward not to have been the legislature of the State. 
The case of Pinchback, however, is much the stronger from the fact that the alleged 
legislature from which Mr. Sykes claimed his election was never recognized as the legis¬ 
lature of the State of Alabama by any of the departments of Government, while the 
Kellogg legislature of Louisiana, by which Mr. Pinchback was elected, was recognized 
as the legislature of that State not only by the State courts but by the Executive of the 
nation, and also by the national House of Representatives, by admitting to its member¬ 
ship persons claiming seats under certificates from Governor Kellogg; and inferentially 
by the Senate, in the adoption of a resolution recognizing Kellogg as the governor of 
the State. In view of these judicial, executive, and legislative recognitions of the Kel¬ 
logg legislature, and of the fact that the Senate, after three years of discussion and con¬ 
sideration, was so evenly divided on the ultimate question as to Mr. Pinchback’s right 
to a seat, it would seem difficult to imagine a stronger case of reasonable cause than 
that moving Mr Pinchback to make claim to a seat, and to perseveie as he did in that 
claim for over three years. 


566 


SENATE ELECTION CASES. 


Your committee, therefore, in view of the precedents and the facte of this case, report 
the following resolution and recommend its adoption: 

Resolved , That P. E. S. Pinchbaek, late contestant for a seat in the Senate from the 
State of Louisiana, be allowed an amount equal to the compensation and mileage of a 
Senator from the beginning of the term for which he was a contestant up to the period 
of the determination of the contest by the Senate. 


Saturday, July 1, 1876. 

The Senate proceeded to the consideration of the resolution to pay P. B. S. Pinchbaek, 
late a contestant for a seat in the Senate from the State of Louisiana; and, 

On motion by Mr. Sargent, the Senate proceeded to the consideration of executive 
business. 

[The debate is found on pages 4319-4323 of the Congressional Record, vol. iv, part 5.] 


Monday, July 3, 1876. 

The Senate resumed, &c. 

[The debate is found on pages 4368-4372 of the Congressional Record, vol. iv, part 5.] 


Wednesday, July 6, 1876. 

On motion by Mr. Morton, the Senate resumed the consideration of the resolution to 
pay P. B. S. Pinchbaek, late a contestant for a seat in the Senate from the State of Lou¬ 
isiana; and, 

On motion by Mr. Merrimon to amend the resolution by striking out all after the 
word “resolved,” and in lieu thereof inserting the following: 

“That the sum of $5,000 be allowed to P. B. S. Pinchbaek to pay the reasonable ex¬ 
penses incurred by him as contestant for a seat in the Senate as a Senator from the State 
of Louisiana, ’ ’ 

After debate, 

It was determined in the negative—yeas 10, nays 31. 

On motion by Mr. Merrimon, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Cockrell, Davis, Jones of Florida, 
Kelly, McCreery, McDonald, Merrimon, Norwood, Saulsbury, and Withers. 

Those who voted in the negative are Messrs. Alcorn, Allison, Anthony, Bruce, Cameron 
of Wisconsin, Conkling, Cragin, Dawes, Dennis, Dorsey, Edmunds, Ferry, Frelinghuysen, 
Hamlin, Harvey, Hitchcock, Howe, Ingalls, Logan, McMillan, Mitchell, Morrill of 
Maine, Morrill of Vermont, Morton, Paddock, Sherman, Spencer, Wadleigh, West, Win- 
dom, and Wright. 

So the amendment was not agreed to. 

On motion by Mr. Edmunds to amend the resolution by inserting at the end thereof 
the words: 

‘ 1 Resolved, That in cases of disputed claims to seats in the Senate hereafter arising, no 
other or greater allowance shall be made to a defeated claimant than in such case shall 
seem to the Senate just; 

“ Resolved, That in no case shall any pay be allowed to a Senator to begin earlier than 
the date of his election or appointment, ’ ’ 

It was determined in the affirmative. 

On motion by Mr. Spencer to amend the resolution by striking out all after the word 
“Louisiana,” as reported by the committee, and inserting: “and Francis W. Sykes, 
late a contestant for a seat in the Senate as a Senator from the State of Alabama, be each 
allowed an amount equal to the pay and mileage of a Senator from the beginning of the 
term for which they were respectively contestants up to the period of the determination 
of the respective contests by the Senate,” it was determined in the affirmative. 

On motion by Mr. Mitchell to amend the resolution by inserting at the end of the first 
clause, ‘ ‘ and the amount required by this resolution to be paid out of the contingent 
fund of the Senate, ’ ’ it was determined in the affirmative. 

On the question to agree to the resolution as amended, as follows: 

‘ ‘ Resolved , That P. B. S. Pinchbaek, late contestant for a seat in the Senate from the 
State of Louisiana, and Francis W. Sykes, late a contestant for a seat in the Senate as a 
Senator from the State of Alabama, be each allowed an amount equal to the pay and 
mileage of a Senator from the beginning of the term for which they were respectively 
contestants up to the period of the determination of the respective contests by the Sen¬ 
ate; and the amount required by this resolution to be paid out of the contingent fund of 
the Senate; 

“Resolved, That in cases of disputed claims to seats in the Senate hereafter arising no 


THE LOUISIANA CASES, 1873-80. 567 


other or greater allowance shall be made to a defeated claimant than in such case shall 
seem to the Senate just; 

1 ‘Resolved, That in no case shall any pay be allowed to a Senator to begin earlier than 
the date of his election or appointment,” 

It was determined in the affirmative—yeas 27, nays 11. 

On motion by Mr. Mitchell, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Alcorn, Allison, Anthony, Bruce, Cam¬ 
eron of Wisconsin, Conkling, Cragin, Dawes, Ferry, Frelinghuysen, Harvey, Hitchcock, 
Howe, Logan, McMillan, Mitchell, Morrill of Maine, Morrill of Vermont, Morton, Pad- 
dock, Sargent, Sherman, Spencer, Wadleigh, West, Windom, and Wright. 

Those who voted in the negative are Messrs. Cockrell, Davis, Gordon, Kelly, Key, 
McCreery, McDonald, Merrimon, Norwood, Saulsbury, and Withers. 

So the resolution was agreed to. 

[The debate is found on pages 4382-4400 of the Congressional Record, vol. iv, part 5.] 


SPOFFORD vs. KELLOGG (MANNING). 

Contest for seat for term beginning March 4, 1877. 

Satubday, January 20,1877. 

Mr. Morton presented the credentials of William Pitt Kellogg, elected a Senator by 
the general assembly of the State of Louisiana for the term of six years commencing 
March 4, 1877. 

The credentials were read. 

[Special session of Senate, March, 1877.] 

Monday, March 5, 1877. 

Mr. William Pitt Kellogg, whose credentials were heretofore presented as a Senator 
from the State of Louisiana, having appeared to take the oaths of office, 

Mr. Bogy objected to the oaths of office being administered to Mr. Kellogg; 

Whereupon 

Mr. Anthony submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

‘ 1 Resolved, That the credentials of Senators-elect in all disputed or contested cases lie 
upon the table until to-morrow.” 

[The debate is found on pages 1, 2 of the Congressional Record, vol. vi.] 

Tuesday, March 6,1877. 

Mr. Blaine submitted the following resolution for consideration: 

“Resolved, That the oaths prescribed by law be now administered by the Vice Presi¬ 
dent to William Pitt Kellogg, whose credentials as a Senator from the State of Louisiana 
were presented on the 20th of January, 1877.” 

On motion by Mr. Bayard to amend the resolution by striking out all after the word 
‘ ‘ resolved, ’ ’ and in lieu thereof inserting ‘ * the credentials of William Pitt Kellogg, claim¬ 
ing to be a Senator from the State of Louisiana, do now lie upon the table until the ap¬ 
pointment of a Committee on Privileges and Elections, to whom they can be referred,” 

Pending debate, 

On motion by Mr. Thurman (at 3 o’clock and 15 minutes p. m.), the Senate ad¬ 
journed. 

[The debate is found on pages 15,16 of the Congressional Record, vol. vi.] 

Wednesday, March 7, 1877. 

The Senate resumed the consideration of the resolution of Mr. Blaine; and 

Mr. Bayard having modified his said amendment, on the question to agree thereto, as 
follows, viz: Strike out all after the word “resolved,” and in lieu thereof insert “the 
credentials of William Pitt Kellogg, claiming to be a Senator from the State of Louisiana, 
do now lie upon the table until the appointment of a Committee on Privileges and Elec¬ 
tions, to whom they shall be referred,” 

After debate, 

It was determined in the affirmative—yeas 35, nays 29. 

On motion by Mr. Sargent, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Bailey, Barnum, Bayard, Bogy, Booth, 


568 


SENATE ELECTION CASES. 


Burnside, Christiancy, Coke, Conkling, Davis of Illinois, Davis of West Virginia, Dennis, 
Eaton, Garland, Gordon, Harris, Hereford, Hill, Johnston, Jones of Florida, Jones of 
Nevada, Keman, Lamar, McCreery, McDonald, McPherson, Maxey, Morrill, Randolph, 
Ransom, Saulsbury, Thurman, Wallace, Whyte, and Withers. 

Those who voted in the negative are Messrs. Allison, Anthony, Blaine, Bruce, Cam¬ 
eron of Pennsylvania, Chaffee, Conover, Dawes, Dorsey, Hamlin, Hoar, Howe, Ingalls, 
Kirkwood, McMillan, Mitchell, Morton, Oglesby, Paddock, Patterson, Plumb, Rollins, 
Sargent, Saunders, Sharon, Sherman, Teller, Wadleigh, and Windom. 

So the amendment was agreed to. 

On the question to agree to the resolution as amended, as follows: 

“ Resolved , That the credentials of William Pitt Kellogg, claiming to be a Senator 
from the State of Louisiana, do now lie upon the table until the appointment of a Com¬ 
mittee on Privileges and Elections, to whom they shall be referred, ’ ’ 

It was determined in the affirmative—yeas 42, nays 21. 

On motion by Mr. Blaine, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Anthony, Bailey, Bayard, Barnum, 
Beck, Bogy, Booth, Burnside, Christiancy, Conkling, Conover, Davis of Illinois, Davis oi 
West Virginia, Dawes, Dennis, Dorsey, Eaton, Garland, Gordon, Harris, Hereford, Hill, 
Hoar, Johnston, Jones of Florida, Jones of Nevada, Kernan, Lamar, McCreery, McDon¬ 
ald, McPherson, Maxey, Morrill, Paddock, Randolph, Ransom, Sargent, Saulsbury, Thur¬ 
man, Wallace, Whyte, and Withers. 

Those who voted in the negative are Messrs. Allison, Blaine, Bruce, Cameron of Penn¬ 
sylvania, Chaffee, Hamlin, Ingalls, Kirkwood, McMillan, Mitchell, Morton, Oglesby, 
Patterson, Plumb, Rollins, Saunders, Sharon, Sherman, Teller, Wadleigh, and Windom. 

So the resolution was agreed to. 

[The debate is found on pages 17-23 of the Congressional Record, vol. vi. ] 

[First session of the Forty-fifth Congress. ] 

Wednesday, October 17, 1877. 

Mr. Thurman presented the credentials of Henry M. Spofiford, elected a Senator by 
the legislature of the State of Louisiana for the term of six years commencing March 
4, 1877. 

The credentials were read. 

Mr. Thurman then submitted the following resolution, and asked for its present con¬ 
sideration: 

“ Resolved , That Henry M. Spofiford, whose credentials as a Senator from the State of 
Louisiana have been this day read, be now sworn and admitted as such Senator.” 

Mr. Edmunds objected to the consideration of the said resolution this day, and raised 
the point of order that under the thirty-third rule of the Senate, which requires that all 
resolutions shall lie over one day for consideration, the resolution could not now be 
considered. 

The Vice-President overruled the point of order raised by Mr. Edmunds, and decided 
that under the seventh rule of the Senate the presentation of the credentials of a Sena¬ 
tor being a question of privilege, all questions and motions arising thereon were in 
order at this time, and that the consideration of the resolution could now be proceeded 
with. 

On motion of Mr. Mitchell to amend the resolution by striking out all after the word 
“resolved,” and in lieu thereof inserting: 

“That the credentials of Henry M. Spofiford, claiming to be a Senator from the State 
of Louisiana, be referred to the Committee on Privileges and Elections,” 

After debate, 

Ordered , That the further consideration of the said resolution be postponed to to¬ 
morrow. 

Mr. Edmunds submitted the following resolution for consideration: 

“ Resolved , That the Committee on Privileges and Elections be discharged from the 
further consideration of the credentials of William Pitt Kellogg as a Senator from the 
State of Louisiana, now under its consideration.” 

• On motion by Mr. Thurman, the Senate proceeded to the consideration of executive 
business. 

[The debate is found on pages 78-83 of the Congressional Record, vol. vi.] 

Thuesday, October 18, 1877. 

The Senate proceeded to consider the resolution yesterday submitted by Mr. Thurman, 


569 


THE LOUISIANA CASES, 1873-80. 

to admit Henry M. Spofford to a seat in the Senate as a Senator from the State of Lou* 
isiana; and 

The question being on the amendment proposed by Mr. Mitchell, viz: Strike out all 
after the word “resolved,” and in lieu thereof insert the following: 

“That the credentials of Henry M. Spofford, claiming to be a Senator from the State 
of Louisiana, be referred to the Committee on Privileges and Elections,” 

After debate, 

On the question to agree thereto, it was determined in the affirmative—yeas 36, nays 33. 

On motion by Mr. Edmunds, the yeas and days being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Allison, Anthony, Blaine, Booth, Bruce, 
Burnside, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conk- 
ling, Conover, Dawes, Dorsey, Edmunds, Ferry, Hamlin, Hoar, Howe, Ingalls, Jones oi 
Nevada, Kirkwood, McMillan, Matthews, Mitchell, Morrill, Oglesby, Paddock, Patter¬ 
son, Plumb, Rollins, Sargent, Saunders, Spencer, Teller, and Wadleigh. 

Those who voted in the negative are Messrs. Armstrong, Bailey, Barnum, Bayard, 
Beck, Cockrell, Coke, Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, 
Gordon, Grover, Harris, Hereford, Hill, Jones of Florida, Kernan, Lamar, McCreery, 
McDonald, McPherson, Maxey, Merrimon, Morgan, Randolph, Ransom, Saulsbury, 
Thurman, Wallace, Whyte, and Withers. 

So the amendment was agreed to. 

On motion by Mr. Whyte further to amend the resolution by adding thereto the 
words “and that said committee report thereon on or before the 1st day of November, 
1877,” 

After debate, 

It was determined in the negative—yeas 31, nays 35. 

On motion by Mr. Whyte, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Bailey, Barnum, Bayard, Beck, Coke, 
Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Grover, Har¬ 
ris, Hereford, Hill, Jones of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, 
Maxey, Merrimon, Morgan, Randolph, Ransom, Saulsbury, Thurman, Wallace, Whyte, 
and Withers. 

Those who voted in the negative are Messrs. Allison, Anthony, Blaine, Booth, Bruce, 
Burnside, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conk- 
ling, Conover, Dawes, Dorsey, Edmunds, Ferry, Hamlin, Hoar, Howe, Ingalls, Jones of 
Nevada, Kirkwood, McMillan, Matthews, Mitchell, Morrill, Oglesby, Paddock, Patter¬ 
son, Rollins, Sargent, Saunders, Spencer, Teller, and Wadleigh. 

So the amendment was not agreed to. 

On motion by Mr. Conkling to further amend the resolution by adding thereto the 
following: “and the said committee shall also consider and report upon the credentials 
of William Pitt Kellogg,” it was determined in the affirmative; and 

The resolution as amended was then agreed to, as follows; 

“ Resolved , That the credentials of Henry M. Spofford, claiming to be a Senator from 
the State of Louisiana, be referred to the Committee on Privileges and Elections; and 
the said committee shall also consider and report upon the credentials of William Pitt 
Kellogg. ’ ’ 

The Senate proceeded to consider the resolution yesterday submitted by Mr. Edmunds 
to discharge the Committee on Privileges and Elections from the further consideration 
of the credentials of William Pitt Kellogg; and 

Mr. Edmunds withdrew the said resolution. 

[The debate is found on pages 99-108 of the Congressional Record, vol. vi.] 

Thursday, October 25, 1877. 

Mr. Mitchell submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

“ Resolved , That the Committee on Privileges and Elections in the contested cases of 
William Pitt Kellogg and Henry M. Spofford, claiming seats as Senators from the State 
of Louisiana, and whose credentials have been referred to such committee, be author¬ 
ized to send for persons and papers and administer oaths with a view of enabling said 
committee to determine and report upon the title, respectively, on the merits of each of 
said contestants to a seat in the Senate. ’ ’ 

Monday, November 26, 1877. 

Mr. Wadleigh, from the Committee on Privileges and Elections, to whom were re¬ 
ferred the credentials of William Pitt Kellogg and the credentials of Henry M. Spofford, 


570 


SENATE ELECTION CASES. 


claiming seats as Senators from the State of Louisiana, submitted a report (No. 16) 
thereon, accompanied by the following resolution: 

“Resolved, That William Pitt Kellogg is, upon the merits of the case, lawfully en¬ 
titled to a seat in the Senate of the United States from the State of Louisiana for the 
term of six years commencing on the 4th day of March, 1877, and that he be admitted 
thereto upon taking the proper oath. 

“ Resolved , That Henry M. Spofford is not entitled to a seat in the Senate of the 
United States.” 

Mr. Merrimon asked and obtained leave of the Senate to submit the views of a mi¬ 
nority of the Committee on Privileges and Elections on the credentials of William Pitt 
Kellogg and the credentials of Henry M. Spofford; which were ordered to be printed to 
accompany the report of the committee. 

EEPOET OF COMMITTEE.* 

[The committee consisted of Messrs. Wadleigh (chairman), Mitchell, Cameron of 
Wisconsin, McMillan, Hoar, Ingalls, Saulsbury, Merrimon, and Hill.] 

In the Senate of the United States. 

Noyembee 26, 1877.—Ordered to be printed. 

Mr. Wadleigh, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

The Committee on Privileges and Elections, to whom were referred the credentials of 
William Pitt Kellogg and the credentials of Henry M. Spofford, for the same seat in the 
Senate of the United States, ask leave to submit the following report: 

Mr. Kellogg claims to have been elected on the 10th day of January, 1877. Mr. 
Spofford claims to have been elected on the 24th of April, 1877. In an inquiry into these 
cases upon their merits, the first question which arises is, whether the body which elected 
Mr. Kellogg was the lawful legislature of Louisiana at the time of such election. 

There was in said State on the 6th of November, 1876, an election for governor, lieu¬ 
tenant-governor, and members of the general assembly. The statements of the votes 
cast at such election were required by law to be sent to a board of returning officers for 
all elections in the State. Said returning officers were by law authorized and required 
to ascertain, return, and certify the election of members of the general assembly. No 
other tribunal was clothed with that power or duty. They were required to report their 
decisions to the secretary of state, and it was by law provided that the secretary of state 
should transmit to the clerk of the house of representatives and secretary of the senate of 
the last general assembly a list of the names of such persons as, according to the decisions 
of the returning officers, were elected to either branch of the general assembly. 

It was the duty of the said clerk and secretary to place the names of such persons so 
furnished upon the roll of the house and senate, respectively, and those representatives 
and senators whose names were so placed by the clerk and secretary, and none others, 
were competent to organize the house of representatives or senate. 

The secretary of state, in obedience to the statute, transmitted to the clerk of the 
former house and secretary of the senate a list of the names of persons by the said return¬ 
ing officers decided to have been elected to either branch of the general assembly, and 
from the list thus furnished the clerk and secretary organized each house of the State 
legislature on the 1st day of January, 1877. 

By the constitution of Louisiana the house of representatives is composed of one hun¬ 
dred and twenty members and the senate of thirty-six members. There is no doubt that 
sixty-one members of the house constitute a quorum of that body, and that nineteen 
members constitute a quorum of the senate. There were present at the organization, 
and took part in the proceedings, eight senators holding over, and eleven newly elected— 
nineteen in all—having the certificates of said returning officers, which was a quorum, 
and sixty-eight representatives, thus declared to have been elected, being seven over a 
quorum. After such organization the members of the two houses assembled in joint con¬ 
vention on the 10th day of January, 1877, to elect a Senator of the United States. 

Upon reading the journal of each house it was found that no election of Senator had 
been made the day before. The roll of each house was called, and it was found there 
were present in the joint convention seventeen senators and sixty-six representatives, 
they composing a majority of all the members of the general assembly of the State. Nom¬ 
inations were then made for Senator, and a viva voce vote was had, and William Pitt 
Kellogg received the votes of seventeen senators and sixty-six representatives, and was 
declared by the president of the senate (the presiding officer of the joint convention) to 


* Taken from Senate Reports, 1st sess. 45th Cong., No. 16. 



THE LOUISIANA CASES, 1875-80. 


571 


have received a majority of all the votes of the general assembly, and to have been duly 
elected a Senator of the United States for the term of six years beginning on the 4th day 
of March, 1877. 

Your committee find that said election was held strictly in accordance with the act of 
Congress of 1866 to regulate the times and manner of holding elections for Senator. The 
credentials of Mr. Kellogg are signed by Stephen B. Packard as governor of the State of 
Louisiana, and bear date the 11th day of January, 1877. 

It appears to your committee that Mr. Packard was on that day the lawful governor 
of the State of Louisiana. By the constitution of Louisiana the returning officers are 
required to seal up and transmit the returns of the election of governor and lieutenant- 
governor to the secretary of state, who shall deliver them to the speaker of the house of 
representatives on the second day of the session of the general assembly then to be 
holden. 

On the second day of the session the legislature proceeded to count the votes for gov¬ 
ernor and lieutenant-governor, there being then present twenty-one senators and sixty- 
eight representatives, two over a quorum of the senate and seven over a quorum of the 
house. The committee appointed by the two houses to make and canvass the votes for 
governor and lieutenant-governor reported that Stephen B. Packard was elected governor 
and C. C. Antoine lieutenant-governor of said State, and that by the following vote: 

For governor: 

Stephen B. Packard 
Francis T. Nicholls. 


For lieutenant-governor: 

C. C. Antoine_ 74, 669 

L. A. Wiltz_71, 093 


Upon the facts hereinbefore stated your committee are of the opinion— 

First, that the returning officers of Louisiana were a lawful tribunal, solely authorized 
and required to ascertain, return, and certify to the election of members of the general 
assembly. 

Second, that those, and only those, who held certificates of election from said return¬ 
ing officers were entitled to seats in the general assembly at the organization thereof. 

Third, that the body which first organized with a quorum of the members in each 
branch thereof, having such certificates, and which was duly recognized by the lawful gov¬ 
ernor of said State, was the lawful legislature. 

The proof before your committee seems conclusive that at the time the legislature 
which elected Kellogg was organized there were present a quorum of each house thereof 
then lawfully entitled to seats therein; that at the time of his election there were present 
a quorum of the general assembly then lawfully entitled to seats therein; all of whom 
voted for said Kellogg, and that said legislature was recognized by the lawful governor 
of said State. It was, however, contended by Mr. Spofford that it was the duty of your 
committee to go behind the certificates of the returning officers and investigate the elec¬ 
tions of individual members of the general assembly. At his request your committee 
did investigate such elections and find the following facts: 

Of the lawful election of fifty-seven members of the house of representatives which 
aided in electing Mr. Kellogg there is no dispute whatever, and they now sit in the 
Nicholls house, which took part in the election of Mr. Spofford. Three more of the 
members of the Packard house, from the parish of Orleans, were until recently admitted 
on all hands to have had a majority of the votes cast, and your committee find that they 
were lawfully elected. Besides these sixty members of the house, there were eleven more 
whose election is disputed by Mr. Spofford upon the ground that they did not receive a 
majority of the votes cast. Of the twenty-one members of the senate which participated 
in the election of Mr. Kellogg, there were sixteen whose right to hold their seats is ad¬ 
mitted. 

The election of three more from the twelfth, eighteenth, and twenty-second senatorial 
districts is disputed upon the ground that they did not receive a majority of the votes 
cast. Two more, Baker and Kelso, were not declared elected by the returning board, 
but were seated by a vote of the senate acting under its constitutional right to judge of 
the election of its own members. 

Complaint is made by Mr. Spofford that one Steven, a lawful senator, was taken against 
his will into the senate and detained there against his will for the purpose of making a 
quorum. Your committee believe there is no good reason for such complaint. If the 
senate had organized with a quorum of members lawfully entitled to seats therein, as 
was the case, it had the undoubted right to compel the attendance of absent members. 

The senators and members whose title to seats is disputed on the ground that they did 
not receive a majority of the votes cast were those declared elected by the returning 


74, 624 
71,198 






572 


SENATE ELECTION CASES. 


board on account of the rejection of the votes cast at certain polls in the parishes of East 
Baton Rouge, De Soto, West Feliciana, La Fayette, Morehouse, Ouachita, and Webster, 
in the twelfth senatorial district, composed of the parishes of East Feliciana, West Feli¬ 
ciana, and Point Coupee; the eighteenth senatorial district, composed of the parishes of 
Ouachita and Caldwell; and the twenty-second senatorial district, composed of the par¬ 
ishes of Natchitoches, De Soto, Red River, and Sabine. 

There were no votes rejected in the parishes of Sabine, Point Coup4e, and Red River. 
A comparatively small number of the votes were rejected on account of the obvious ille¬ 
galities, informalities, and misconduct of the election officers, and there is little complaint 
on account of the rejection of such votes. The rest were rejected on account of violence 
and intimidation which prevented a fair election. The evidence of such intimidation is 
overwhelming and irrefutable. Many of the Republican leaders were killed, others were 
tortured, others driven into exile. Companies of armed men paraded the parishes by 
night, carrying terror wherever they went. 

Your committee has no space to recountor refer to a tithe of the horrible outrages per¬ 
petrated to prevent the Republicans from exercising the free right of suffrage. They 
were evidently perpetrated in localities where the result of the election would thereby 
be most strongly affected, and they had their intended effect. But for these numerous 
and horrible crimes, your committee believe that the candidates upon the State and 
National Republican tickets would have been elected beyond dispute, and that the gen¬ 
eral assembly would have been overwhelmingly Republican. 

In forty parishes, where it is admitted on all hands the election was fair and peace¬ 
able, the colored registration in 1876 numbered 87,999, the white registration 72,034, 
showing a colored majority of 15,965. Those forty parishes returned 65,747 Republican 
votes and 59,392 Democratic votes, a Republican majority of 6,353 votes. In the seven¬ 
teen terrorized parishes the colored registration was 27,269, the white registration was 
20,320, a colored majority of 6,949, almost half as large as the registered colored ma¬ 
jority in all the rest of the State. But the vote in those seventeen parishes as cast 
showed but 10,970 Republicans and 21,123 Democrats. Thus those seventeen parishes, 
with a colored majority of nearly 7,000 registered, cast a Democratic majority of 10,153. 
In the ten parishes of East Baton Rouge, Caldwell, De Soto, East Feliciana, West Feli¬ 
ciana, La Fayette, Morehouse, Natchitoches, Ouachita, and Webster, in which (on account 
of the rejection of polls by the returning board) thereleven disputed members of the house 
and three disputed members of the senate were declared elected by the returning officers, 
there were in 1876 19,174 colored voters and 11,212 white voters registered, being a 
colored majority of 7,962. 

In the same parishes there were cast 14,510 Democratic and 8,489 Republican votes, 
being a Democratic majority of 6,021. In the strong Republican parish of East Felici¬ 
ana, where leading Republicans had been terrorized into procuring the appointment as 
sheriff of a Democratic leader, whose career had been that of a brigand, upon his prom¬ 
ise of peace and conciliation, only three Republicans dared to vote. There is no evidence 
to show and it is not pretended that the same arguments and methods of persuasion 
were not employed by the Democrats in the forty parishes above referred to as were 
used in the seventeen terrorized parishes; but in the seventeen parishes numerous and 
frightful crimes were deliberately perpetrated to carry the election; in the others not. 
The difference in the vote shows too strongly to be affected by argument or clouds of 
perjured witnesses the perpetration of such outrages and their effect. 

It was contended by Mr. Spofford before your committee that the returning officers 
were guilty of fraud in rejecting the polls hereinbefore referred to, and that in so doing 
they exceeded the authority conferred upon them by law. Your committee find, how¬ 
ever, that tffi returning board in so doing acted not fraudulently but in good faith; and 
that in theij construction of the law under which they acted they were sustained by 
precedents and by able legal opinions. 

They were charged by Mr. Spofford with having committed forgery in altering the 
statement of votes from the parish of Vernon. Testimony in reference to that matter was 
taken at great length by the Field and Morrison committees of the House and the Howe 
committee of the Senate. It clearly and conclusively shows, in the opinion of your 
committee, that the returning officers had no motive to commit such crime; that they 
before had published the true statement of the vote, and must therefore have known 
that if such a crime was committed it would be immediately detected; and that the 
real, the only criminal, was the witness by whose hand the alterations were made, who 
confessed that he did not know the true vote had been published, who had the strongest 
personal motives to commit the crime, and who testified with the understanding that he 
should have a good office if Mr. Tilden was elected. 

But the law is clear that, even had the returning officers been guilty of fraud, or had 
mistakenly exceeded their authority, it was the right and the duty of the persons returned 
by them as elected to take their seats in the general assembly. The law on this point 


THE LOUISIANA CASES, 1873-80. 573 


is thus laid down by Cushing in his Law and Practice of Legislative Assemblies, page 
52, section 141: 

u It remains to be observed, in conclusion, that the proceedings of these [returning] 
officers, from the necessity of the case, are, in the first instance, uncontrollable by any 
other authority whatever; so that if, on the one hand, notwithstanding an election has 
been effected, the returning officers refuse or neglect to make the proper return, the party 
thereby injured is without remedy or redress until the assembly to which he is chosen 
has examined his case and adjudged him to be duly elected; and, on the other hand, if 
the returning officers make a return when no election has in fact taken place, or of one 
who is not eligible, the person returned will not only be entitled, but it is his duty, to 
assume and discharge the functions of a member until his return and election are ad¬ 
judged void.” 

A strong case in point occurred in the State of New Hampshire in 1875. The governor 
and council of that State, whose duty it was to count the votes for and issue certificates 
of election to State senators, rejected and threw out 3,771 votes, being all those cast and 
returned for Natt Head, a candidate for senator, upon the ground that the name by 
which he had been universally known, by which he had been commissioned adjutants 
general of the State, and which he had regarded and u^ed as his real name during many 
years of business and political life, was not his full Christian name. They also threw 
out and rejected 46 votes cast for Author Dearing, also a candidate for senator, on the 
ground that herwas not a resident of the State. By such action the governor and council 
were enabled to give certificates of election to James Priest and John Proctor, thus giving 
the Democrats the control of the senate. Application was made to the supreme court 
of the State, as provided for by the constitution, for the opinion of said court upon the 
effect of such action. In their opinion, which may be found in the fifty-sixth volume of 
New Hampshire Reports, the courPsay: 

“ By this action of the-governor and council, whether it be regarded as within or ex¬ 
ceeding their constitutional powers, Messrs. Priest and Proctor received the usual cre¬ 
dentials, which authorized them to assemble with the other ten senators and take the 
oath of office; and they thereupon became senators, subject to the constitutional author¬ 
ity of the senate as final judges of the qualifications and elections of its members. ’’ 

When your committee decided to go behind the certificates of the returning officers, 
and to seek the real merits of the case in the thousands of pages of printed testimony 
taken for the use of the Senate and House, Mr. Spofford contended that your committee 
should simply ascertain the number of votes deposited in the ballot-boxes at the election. 
Your committee believe, however, that if their inquiry is to extend beyond the question 
as to who were the lawful governor of Louisiana and the lawful members of the general 
assembly, it should go far enough to ascertain how far the freedom of election was im¬ 
paired by intimidation, violence, and crime. The law on this subject is thus stated by 
Cushing in his Law and Practice of Legislative Assemblies, pages 67, 68, section 181: 

“The great principle, which lies at the foundation of all elective governments, and is 
essential indeed to the very idea of election, is that the electors shall be free in the giv¬ 
ing of their suffrages. This principle was declared by the English Parliament, with 
regard to elections in general, in a statute of Edward I, and with regard to elections of 
members of Parliament, in the Declaration of Rights. The same principle is asserted or 
implied in the constitutions of all the States of the Union. Freedom of election is vio¬ 
lated by external violence, by which the electors are constrained, or by bribery, by which 
their will is corrupted; and in all cases where the electors are prevented, in either of these 
ways, from the free exercise of their right, the election will be void without reference to 
the number of votes thereby affected.” 

The evidence clearly proves, and your committee believe, that by intimidation, vio¬ 
lence, and crime freedom of election was utterly destroyed at those polls in the ten par¬ 
ishes heretofore referred to, whose votes were rejected by the returning officers; that in 
throwing out such polls and declaring the Republican candidates elected, the returning 
officers did that which they believed to be legal, and which was really equitable and just, 
and what the two houses of the general assembly would have been bound in law to do 
with the facts before them. They believe, therefore, that the members by whose votes 
the general assembly was organized, and a sufficient number of the members by whose 
votes Mr. Kellogg was elected, were not only lawfully but equitably entitled to their 
seats. 

It is contended by Mr. Spofford that the legislature which elected Mr. Kellogg and 
the governor who signed his credentials have vanished from political existence, and 
ceased to have any authority in the State of Louisiana, and that, therefore, if for no other 
reason, his own election is valid. Your committee find that at and after the organization 
of the legislature which elected Mr. Kellogg an overwhelming array of armed and organ¬ 
ized military force was used to destroy and crush out the lawful State government of 
Louisiana. By it the courts were overthrown and annihilated, and under its constantly 


574 


SENATE ELECTION CASES. 


impending menace the lawful legislature gradually melted away, and its terrorized mem¬ 
bers sought safety in the so-called Nicholls legislature or abdicated their rights. 

By such, and perhaps other equally illegal means, the so-called Nicholls legislature at 
length came to contain an undisputed majority of the members lawfully elected to the 
general assembly; and on the 24th day of April that legislature chose Mr. Spofford, the 
contestant, a Senator of the United States. Your committee are of the opinion that his 
r.lflim is not well founded. Until and after the election of Mr. Kellogg, Governor Pack¬ 
ard, and what is known as his legislature, were de facto and de jure the government of 
Louisiana. Upon that legislature devolved the duty of electing a Senator of the United 
States. That duty was performed by them in the election of Mr. Kellogg. No subse¬ 
quent events, especially successful revolution, through treasonable force, could undo 
what had been lawfully done. The doctrine contended for by Mr. Spofford, if established, 
would render insecure all political vested rights. It would offer a premium to overthrow 
by force the result of every sharply contested election, and at no distant day reduce this 
country to the unhappy condition of those wretched communities which are continually 
a prey to disorder and civil war. 

Your committee therefore report the following resolutions, and recommend their pas¬ 
sage: 

Resolved , That William Pitt Kellogg is, upon the merits of the case, lawfully entitled 
to a seat in the Senate of the United States from the State of Louisiana for the term of 
six years, commencing on the 4th day of March, 1877, and that he be admitted thereto 
upon taking the proper oath. 

Resolved , That Henry M. Spofford is not entitled to a seat in the Senate of the United 
States. 


VIEWS OF THE MINORITY. 

On the 18th day of October last the Senate referred to the Committee on Privileges 
and Elections a resolution, of which the following is a copy: 

“ Resolved , That the credentials of Henry M. Spofford, claiming to be a Senator from 
the State of Louisiana, be referred to the Committee on Privileges and Elections; and 
the said committee shall also consider and report upon the credentials of William Pitt 
Kellogg.” 

That committee having had the subject embraced by that resolution under consider¬ 
ation, a majority of the committee have agreed to a report in favor of seating Mr. Kel¬ 
logg as Senator. The undersigned, members of the committee, do not concur in that 
report and beg leave to submit to the Senate some of the reasons which impel them to 
dissent. 

An election was held in the State of Louisiana on the 7th day of November, A. D. 
1876, for a governor and members of the legislature. Francis T. Nicholls and Stephen 
B. Packard each claimed that he was elected governor at that election, and on and after 
the 8th day of January last each claimed to be the governor of that State. Two rival 
bodies of men composed of persons claiming to have been elected at that election were 
organized on the 1st day of January last in the city of New Orleans, and each claimed 
to be the lawful legislature of the State, one of these bodies commonly called “the 
Nicholls legislature ’ ’ and the other ‘ 1 the Packard legislature. ’ ’ This conflict of claim, 
aggravated by the recollections of like repeated contests in the past, produced general 
angry commotions among the contestants and the people which seriously threatened the 
peace of society and a state of anarchy. Detachments of the Army of the United States 
were employed for many weeks to preserve the peace and prevent bloodshed. It will 
not be denied that the people of that State of all classes and conditions were profoundly 
and fearfully agitated. 

At length this conflict and contest of claim was peacefully settled, and Mr. Nicholls 
was and ever since that time has acted and been recognized as governor by all the co¬ 
ordinate branches of the State government and the people generally, and also by the 
President and other authorities of the United States having occasion to recognize and 
communicate with the governor of that State. And what has been designated as “the 
Nicholls legislature ’ ’ has likewise been so recognized as the lawful and only legislature, 
and its acts purporting to be statutes, passed since its first organization, have been reg¬ 
ularly published and recognized as laws of that State by all departments of the State 
government and the people. Throughout the State the so-called ‘ * Packard legislature ’ ’ 
has entirely disappeared, and most of its members—all those lawfully elected—have 
taken seats in the lawful legislature. This settlement has happily brought peace, order, 
and wholesome government out of fearful strife and disorder. It seems to be gratefully 
accepted by the great mass of the people of that State of both colors, and the few mal¬ 
contents, if any, are moved by considerations of personal interest. 

After the settlement referred to, “the Nicholls legislature ” elected Henry M. Spofford 
to be a Senator in the United States Senate, “ the Packard legislature ” having a few 


575 


THE LOUISIANA CASES, 1873-80. 

days after its pretended organization, on the-day of January last, pending the con¬ 

test, and in the midst of disorder, purported to elect Mr. Kellogg Senator. Indeed, the 
facts and circumstances point strongly to the conclusion that the main if not the only 
purpose of “the Packard legislature” organization was to elect Mr. Kellogg Senator. 
But he this as it may, the body that undertook to elect him had no legal existence, as 
will hereafter appear. He purported to be elected pending a heated contest as to its 
legality, and since that time it has abandoned its organization and claim, and most of 
its members went into and became part of ‘ ‘ the Nicholls legislature, ” and voted for Mr. 
Spofford. 

Looking to the permanent peace and well-being of the people of Louisiana, after many 
years of discord and strife which have agitated the people of the whole Union, as well 
as the strict right, the undersigned deemed it important in the highest degree that the 
Senate should accept that settlement, made by the authorities and accepted by the peo¬ 
ple, as a finality; and, looking to that end, Mr. Hill in committee offered a resolution in 
these words: 

‘ ‘ The controversies heretofore existing in the State of Louisiana as to which of two 
rival bodies was the legislature of that State and as to which of two rival claimants was 
the governor of said State having been settled by the State itself since the last adjourn¬ 
ment of the Senate, 

“ Resolved , That the Senate do recognize and accept said settlement as final.” 

This resolution was rejected by the unanimous vote of the Republicans of the commit¬ 
tee, while it received only the votes of the undersigned. We solemnly protest against re¬ 
opening political controversies in Louisiana, and sincerely deplore the occasion for doing 
so. Let the grave responsibility rest with those who have insisted upon doing so. 

The majority of the committee having thus determined to ignore the settlement referred 
to, it was then deemed necessary to examine fully and fairly the real merits of the claims 
respectively of Messrs. Spofford and Kellogg; and with that view Mr. Merrimon in com¬ 
mittee offered a resolution in these words: 

“ Resolved , That the committee proceed to examine and ascertain the substantial merits 
of the respective claims of Hon. W. P. Kellogg and Hon. H. M. Spofford to a seat in the 
Senate as a Senator from the State of Louisiana, and to this end to inquire particularly 
which, or whether either, of the two rival bodies claiming to be the legislature of said 
State, in January and April last, was the true and lawful legislature of said State. ’ ’ 

This resolution was unanimously adopted after hearing the contestants at length, Mr. 
Kellogg being heard by his counsel, Mr. Shellabarger. The contestants were each re¬ 
quested to indicate what testimony he desired to produce, and after debate they were re¬ 
quested to confer and see what state of facts they could agree upon touching controverted 
material points at issue. Statements were submitted to Mr. Kellogg touching the result 
of the election in parishes indicated, and Mr. Kellogg made a statement in that respect in 
reply. These statements were received as evidence, and it was further agreed to receive 
the testimony, or so much thereof as may be pertinent, taken by Congressional commit¬ 
tees commonly known as the “Howe committee,” the “Morrison committee,” the 
11 Sherman committee, ’ ’ and the ‘ ‘ Field committee, ’ ’ touching Louisiana affairs. Mr. 
Spofford did not object to the reception of this testimony, but he strenuously insisted on 
being allowed to take testimony in support of the several allegations specified by him, 
as follows: He offered testimony to prove— 

“ 1. That the facts relative to the election of Tremoulet, Cressy, and Rolle, from the 
seventh representative district of New Orleans, were sustantially as set forth in the 
statement read by H. M. Spofford in his argument before this committee on the 24th 
October, 1877. 

‘ 1 2. That the composition, votes for Senator, and political proclivities of the legislature 
on the 24th April, 1877, when H. M. Spofford was elected Senator, were substantially as 
set forth in the aforesaid argument. 

11 3. That by the actual returns or statements as made in duplicate by the supervisors 
of registration (and assistant supervisors), with their appointees, the commissioners of 
election, and sent, one set to the clerk of the district court of each parish in the county 
and to the secretary of state in the city, and the other set to the returning board (so 
called), showed a majority of votes actually cast throughout the State of about 8,000 
votes for Nicholls and Wiltz over Packard and Antoine for the offices of governor and 
lieutenant-governor in the election that took place in Louisiana November 7, 1876. 

‘ ‘ 4. Besides these specific violations of the constitution and of the law under which 
they pretended to act, I charge that the conduct of the returning officers in suppressing 
polls and changing the result of the constitutional returns was clandestine, collusive, 
tyrannical, and unjust; that the real work of conducting an election under pretext of 
compiling votes was proceeded with in a secret chamber by a corps of partisan clerks, 
while the occasional open sessions of the board were side-shows, devised to screen what 
was going on within; that arbitrary rules of evidence were established for pretended con- 


576 


SENATE ELECTION CASES. 


tests, and changed so often and abruptly that no fair trial could be had or was had before 
the board; that illegal complaints were constantly received and illegal evidence adrnitr 
ted for the purpose of setting aside polls that were in the way of such candidates as the 
board desired to elect; and that Mr. Kellogg himself, then governor, joined in making 
illegal complaints and inducing the board to consider them. 

“5. I am informed and so charge that the returns from Vernon Parish, after they came 
into possession of the returning officers, and while they were under their control, were 
fraudulently altered by a change of figures, tantamount to a forgery of a public record; 
that the board knew what the figures upon those returns were before their alteration, and 
yet after the alteration promulgated the results of said forgery as the true returns; that 
by such fraudulent alteration E. E. Smart, candidate for representative in the State assem¬ 
bly, who had in fact and according to the returns as they first came to the board defeated 
his competitor, Brown, was left behind, and Brown, the defeated candidate, falsely de¬ 
clared elected; and that said Brown took his seat in the Packard house, and figures on 
the journal as present on the 2d of January, 1877, when there was a pretended count of 
votes for governor and lieutenant-governor in joint assembly, and perhaps on one or two 
other occasions, but that he afterward abandoned that body and went home, acknowledg¬ 
ing that he never had been elected. ’ ’ 

We are of opinion that the testimony so proposed by Mr. Spofford is material, and 
ought, in j ustice to him and the Senate, to have been received. Besides, it cannot be truly 
said that the respective claims of the contestants have been decided upon their ‘ ‘ substan¬ 
tial merits ’ ' when one of them is not allowed to produce material testimony which he 
offers and is anxious to produce. And it may be that a decision made by the Senate 
now, without fair opportunity to produce such testimony, maybe reviewed and reversed 
at some future time. It is well to put an end to controversy now by allowing both the 
contestants the fullest and fairest opportunity to produce all material testimony. We 
think, therefore, that the whole matter ought to be recommitted to the committee, to 
the end the proposed testimony may be taken. 

The following provisions of the constitution of Louisiana are material to a proper 
understanding of the points raised in the contest now under consideration: 

“Art. 15. The legislative power of the State shall be vested in two distinct branches, 
the one to be styled the house of represenatives, the other the senate, and both the gen¬ 
eral assembly of the State of Louisiana. 

‘ ‘Art. 16. The members of the house of representatives shall continue in office for two 
years from the day of the closing of the general elections. 

“Art. 17. Representatives shall be chosen on the first Monday in November every two 
years, and the election shall be completed in one day. The general assembly shall meet 
annually on the first Monday in January, unless a different day be appointed by law, 
and their sessions shall be held at the seat of government. 

‘ ‘Art. 19. Elections for members of the general assembly shall be held at the several 
election precincts established by law. 

“Art. 27. The members of the Senate shall be elected for the term of four years; and 
when assembled the senate shall have power t<5 choose its own officers except as herein¬ 
after provided. 

“Art. 31. At the first session of the general assembly after this constitution goes into 
effect the senators shall be divided equally by lot into two classes; the seats of the sen¬ 
ators of the first class to be vacated at the expiration of the term of the first house of 
representatives; those of the second class at the expiration of the term of the second 
house of representatives, so that one-half shall be chosen every two years successively. 
When a district shall have elected two senators their respective terms of office shall be 
determined by lot between themselves. 

“Art. 33. Not less than a majority of the members of each house of the general as¬ 
sembly shall form a quorum to transact business; but a smaller number may adjourn 
from day to day, and shall have full power to compel the attendance of absent members. 

“Art. 34. Each house of the general assembly shall judge of the qualifications, elec¬ 
tion, and returns of its members; but a contested election shall be determined in such 
manner as may be prescribed by law. 

‘ ‘Art. 46. Returns of all elections for members of the general assembly shall be made 
to the secretary of state. 

“Art. 48. The supreme executive power of the State shall be vested in a chief magis¬ 
trate, who shall be styled the governor of the State of Louisiana. He shall hold his 
office during the term of four years, and, together with the lieutenant-governor, chosen 
for the same term, be elected as follows: The qualified electors for representatives shall 
vote for governor and lieutenant-governor at the time and place for voting for represent¬ 
atives; the returns of every election shall be sealed up and transmitted by the proper 
returning officer to the secretary of state, who shall deliver them to the speaker of the 
bouse of representatives on the second day of the session of the general assembly then 


THE LOUISIANA CASES, 1873-80. 


577 


to be holden. The members of the general assembly shall meet in the house of repre¬ 
sentatives to exam:ne and count the votes. The person having the greatest number of 
votes for governor shall be declared duly elected; but in case of a tie vote between two 
or more candidates one of them shall immediately be chosen governor by joint vote of 
the members of the general assembly. The person having the greatest number of votes 
polled for lieutenant-governor shall be lieutenant-governor; but in case of a tie vote 
between two or more candidates, one of them shall be immediately chosen lieutenant- 
governor by joint vote of the members of the general assembly. 

1 Art. 51. The governor shall enter on the discharge of his duties on the second Mon¬ 
day in January next ensuing his election, and shall continue in office until the Monday 
next succeeding the day that his successor shall be declared duly elected, and shall have 
taken the oath or affirmation required by the constitution. 

“Art. 73. The judicial power shall be vested in a supreme court, in district courts, 
in parish courts, and in justices of the peace. 

“Art. 94. No judicial powers, except as committing-magistrates in criminal cases, 
shall be conferred on any officers other than those mentioned in this title, except such 
as may be necessary in towns and cities; and the judicial powers of such officers shall 
not extend further than the cognizance of cases arising under the police regulations of 
towns and cities in the State. In any case where such officers shall assume jurisdiction 
over other matters than those which may arise under police regulations, or under their 
jurisdiction, as committing-magistrates, they shall be liable to an action of damages in 
favor of the party injured, or his heirs; and a verdict in favor of the party injured shall 
ipso facto operate a vacation of the office of said officer. 

“Art. 103. The privilege of free suffrage shall be supported by laws regulating elec¬ 
tions and prohibiting under adequate penalties all undue influence thereon from power, 
bribery, tumult, or other improper practice. 

“Art. 107. In all elections by the people the vote shall be taken by ballot; and in all 
elections by the senate and house of representatives, jointly or separately, the vote shall 
be given viva voce. 

“Art. 133. No judicial powers shall be exercised by clerks of courts.” 

And the following sections from the statute of that State approved November 20,1872, 
commonly called the election law: 

“Section 1. Be it enacted by the senate and house of representatives of the State of 
Louisiana in general assembly convened , That all elections for State, parish, and judicial 
officers, members of the general assembly, and for members of Congress shall be held 
on the 1st Monday in November, and said election shall be styled the general election. 
They shall be held in the manner and form and subject to the regulations hereinafter 
prescribed, and in no other. 

1 ‘ Sec. 2. Be it further enacted , &c. , That five persons, to be elected by the senate from 
all political parties, shall be the returning officers for all elections in the State, a majority 
of whom shall constitute a quorum and have power to make the returns of all elections. 
In case of any vacancy by death, resignation, or otherwise, by either of the board, then 
the vacancy shall be filled by the residue of the board of returning officers. The re¬ 
turning officers shall after each election, before entering upon their duties, take and 
subscribe to the following oath before a judge of the supreme or any district court: 

“ ‘ I, A. B., do solemnly swear (or affirm) that I will faithfully and diligently perform 
the duties of a returning officer as prescribed by law; that I will carefully and hon¬ 
estly canvass and compile the statements of the votes, and make a true and correct return 
of the election: So help me God.’ 

“Within ten days after the closing of the election said returning officers shall meet in 
New Orleans to canvass and compile the statement of votes made by the commissioners 
of election, and make returns of the election to the secretary of state. They shall con¬ 
tinue in session until such returns have been compiled. The presiding officer shall, at 
such meeting, open, in the presence of the said returning officers, the statements of the 
commissioners of election, and the said returning officers shall, from said statements, 
canvass and compile the returns of the election in duplicate; one copy of such returns 
they shall file in the office of the secretary of state, and of one copy they shall make 
public proclamation, by printing in the official journal and such other newspapers as 
they may deem proper, declaring the names of all persons and officers voted for, the number 
of votes for each person, and the names of the persons who have been duly and lawfully 
elected. The return of the election thns made and promulgated shall be prima facie 
evidence in all courts of justice and before all civil officers, until set aside after contest 
according to law, of the right of any person named therein to hold and exercise the office 
to which he shall by such return be declared elected. The governor shall, within thirty 
days thereafter, issue commissions to all officers thus declared elected, who are required 
by law to be commissioned. 

“Sec. 3. Be it further enacted , &c ., That in such canvass and compilation the retum- 

S. Doc. 11- 37 



578 


SENATE ELECTION CASES. 


ing officers shall observe the following order: They shall compile first the statements 
from all polls or voting places at which there shall have been a fair, free, and peace¬ 
able registration and election. Whenever from any poll or voting place there shall be 
received the statement of any supervisor of registration or commissioner of election, in 
form as required by section 26 of this act, on affidavit of three or more citizens, of any 
riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt 
influences, which prevented or tended to prevent a fair, free, and peaceable vote of all 
qualified electors entitled to vote at such poll or voting place, such returning officers 
shall not canvass, count, or compile the statement of votes from such poll or voting 
places until the statements from all other polls or voting places shall have been canvassed 
and compiled. The returning officers shall then proceed to investigate the statements 
of riot, tumult, acts of violence, intimidation, armed disturbance, bribery, or corrupt 
influences at any such poll or voting place; and if from the evidence of such statement 
they shall be convinced that such riot, tumult, acts of violence, intimidation, armed 
disturbance, bribery, or corrupt influences did not materially interfere with the purity 
and freedom of the election at such poll or voting place, or did not prevent a sufficient 
number of qualified voters thereat from registering or voting to materially change the 
result of the election, then, and not otherwise, said returning officers shall canvass and 
compile the vote of such poll or voting place with those previously canvassed and com¬ 
piled ; but if said returning officers shall not be fully satisfied thereof, it shall be their 
duty to examine further testimony in regard thereto, and to this end they shall have 
power to send for persons and papers. If, after such examination, the said returning 
officers shall be convinced that said riot, tumult, acts of violence, intimidation, armed 
disturbance, bribery, or corrupt influences did materially interfere with the purity and 
freedom of the election at such poll or voting place, or did prevent a sufficient number of 
the qualified electors thereat from registering and voting to materially change the result 
of the election, then the said returning officers shall not canvass or compile the statement 
of the votes of such poll or voting place, but shall exclude it from their returns: Provided , 
That any person interested in said election by reason of being a candidate for office shall 
be allowed a hearing before said returning officers upon making application within the 
time allowed for the forwarding of the returns of said election. 

“Sec. 8. Beit further enacted, &c., That the election at each poll or voting place shall 
be presided over by three commissioners of election, residents of the parish for at least 
twelve months next preceding the day of election, who shall be selected from different 
political parties, and be of good standing in the party to which they belong, and who 
shall, before entering upon the discharge of their duties, take and subscribe the oath 
prescribed for State officers. Should only one of the commissioners appointed be pres¬ 
ent at the hour for opening the poll, he shall appoint another, and both together shall 
appoint a third ; and the commissioners so appointed shall take the oath and perform 
all the duties of commissioners of election in the same manner as if they had been ap¬ 
pointed as provided for regular appointment of commissioners by this act. An y one of 
the commissioners shall be authorized to administer the oath to the other commission¬ 
ers. The commissioners of election for the several wards in the city of New Orleans 
shall be appointed by the mayor and administrators of the city of New Orleans. 

“Sec. 13. Be it further enacted , <&c., That it shall be the duty of the commissioners of 
election, at each poll or voting place, to keep a list of the names of the persons voting at 
such poll or voting place, which list shall be numbered from one to the end; and said 
list of voters, with their names and numbers as aforesaid, shall be signed and sworn to as 
eorreet by the commissioners, immediately on closing of the polls, and before leaving the 
place, and before opening the box. If no judge or justice of the peace, or other person 
authorized to administer such oath be present to do so, it may be administered by any 
voter. The votes shall be counted by the commissioners at each voting place, immedi¬ 
ately after closing the election and without moving the boxes from the place where the 
votes were received, and the counting must be done in the presence of any bystander or 
citizen who may be present. Tally-lists shall be kept of the count, and after the count 
the ballots counted shall be put back into the box and preserved until after the next 
term of the criminal or district court, as the case may be; and in the parishes, except 
Orleans, the commissioners of election, or anyone of them selected for that purpose, shall 
carry the box and deliver it to the clerk of the district court, who shall preserve the 
same as above required; and in the parish of Orleans the box shall be delivered to the 
clerk of the first district court for the parish of Orleans, and be kept by him as above 
directed. 

“Sec. 26. Be it further enacted, &c., That in any parish, precinct, ward, city, or town 
in which during the time of registration, or revision of registration, or on any day of 
election, there shall be any riot, tumult, acts of violence, intimidation, and disturbance 
bribery, or corrupt influences, at any place within said parish, or at or near any poll or 
Toting place, or place of registration or revision of registration, which riot, tumult, acts 


THE LOUISIANA CASES, 1873-80. 


579 


of violence, intimidation, and disturbance, bribery, or corrupt influences shall prevent, 
or tend to prevent, a fair, free, peaceable, and full vote of all the qualified electors of 
said parish, precinct, ward, city, or town, it shall be the duty of the commissioners of 
election, if such riot, tumult, acts of violence, intimidation, and disturbance, bribery, or 
corrupt influences occur on the day of election, or of the supervision of registration of the 
parish, if they occur during the time of registration, or revision of registration, to make 
in duplicate and under oath a clear and full statement of all the facts relating thereto 
and of the effect produced by such riot, tumult, acts of violence, intimidation, and dis¬ 
turbances, bribery, or currupt influences in preventing a fair, free, peaceable, and full 
registration or election, and of the number of qualified voters deterred by such riots, 
tumult, acts of violence, intimidation, and disturbance, bribery, or corrupt influences 
from registering or voting, which statement shall also be corroborated under oath by 
three respectable citizens, qualified electors of the parish. When such statement is made 
by a commissioner of election or a supervisor of registration, he shall forward it in dupli¬ 
cate to the supervisor of registration of the parish, if in the city of New Orleans to the 
secretary of state, one copy of which, if made to the supervisor of registration, shall be 
forwarded by him to the returning officers provided for in section 2 of this act, when 
he makes the returns of election in his parish. His copy of said statement shall be so 
annexed to his returns of elections, by paste, wax, or some adhesive substance, that the 
same can be kept together, and the other copy the supervisor of registration shall deliver 
to the clerk of the court of his parish for the use of the district attorney. 

“Sec. 43. Be it further enacted , <&c., That immediately upon the close of the polls on 
the day of election, the commissioners of the election at each poll or voting place shall 
proceed to count the votes, as provided in section 13 of this act, and after they shall have 
so counted the votes and made a list of the names of all the persons voted for, and the 
offices for which they were voted for, and the number of votes received by each, the num¬ 
ber of ballots contained in the box. and the number rejected, and the reasons therefor, 
duplicates of such lists shall be made out, signed and sworn to by the commissioners of 
election of each poll, and such duplicate lists shall be delivered, one to the supervisor of 
registration of the parish, and one to the clerk of the district court of the parish, and in 
the parish of Orleans to the secretary of state, by one or all such commissioners in per¬ 
son, within twenty-four hours after the closing of the polls. It shall be the duty of the 
supervisors of registration, within twenty-four hours after the receipt of all the returns 
for the different polling places, to consolidate such returns, to be certified as correct by 
the clerk of the district court, and forward the consolidated returns, with the originals 
received by him, to the returning officers provided for in section 2 of this act, the said 
report and returns to be inclosed in an envelope of strong paper or cloth, securely sealed, 
and forwarded by mail. He shall forward a copy of any statement as to violence or dis¬ 
turbance, bribery or corruption, or other offenses specified in section 26 of this act, if any 
there be, together with all memoranda and tally-lists used in making the count, and 
statement of the votes. 

“Sec. 44. Be it further enacted , <£c., That it shall be the duty of the secretary of state 
to transmit to the clerk of the house of representatives and the secretary of the senate of 
the last general assembly a list of the names of such persons as, according to the returns, 
shall have been elected to either branch of the general assembly; and it shall be the duty 
of the said clerk and secretary to place the names of the representatives and senators 
elect so furnished upon the roll of the house and of the senate, respectively; and those 
representatives and senators whose names are so placed by the clerk and secretary, re¬ 
spectively, in accordance with the foregoing provisions, and none other, shall be compe¬ 
tent to organize the house of representatives or senate. Nothing in this act shall be 
construed to conflict with article 34 of the constitution of the State.” 

The senate branch of the legislature of Louisiana is composed of thirty-six senators, 
nineteen being a quorum; tbe house branch is composed of one hundred and twenty 
members, sixty-one being a quorum. The election for governor and members of the legis¬ 
lature, styled the “general election,” is held biennially, on the first Monday in Novem¬ 
ber. 

It will be observed that section 2, set forth above, of the statute regulating the man¬ 
ner of holding elections, provides for five ‘‘ returning officers ’ ’ for all elections in the State, 
commonly called ‘ ‘ the returning board. ’ ’ In view of the constitutional provisions above 
cited, this statutory provision is strange and anomalous. It suggests and imports a dis¬ 
honest purpose; it savors of fraud; in the natural order of things, leaving out of view for 
the moment that it contravenes the constitution, it is unnecessary, illogical, and absurd, 
and it is not surprising that the returning board has been one of the chief instrumentali¬ 
ties in the hands of desperate adventurers in producing the disorders and stormy conflicts 
that have disgraced and cursed the State and people of Louisiana ever since it came into 
existence. What necessary, reasonable, or honest purpose it can serve we cannot see, 
and its whole history shows that it has accomplished much and lasting evil. 


580 


SENATE ELECTION CASES. 


The statutory clause providing for “the returning board,” so far as it affects elections 
for governor and members of the legislature, manifestly comes in direct conflict with the 
constitution of Louisiana in two respects: 

1. The forty-sixth article provides that “ returns of all elections ibr members of the 

general assembly shall be made to the secretary of state;” and it is provided in article 
48 ; * * * “The qualified electors for representatives shall vote for governor and 

lieutenant-governor at the time and place for voting for representatives; the returns of 
every election shall be sealed up and transmitted by the proper returning officer t© the 
secretary of state, who shall deliver them to the speaker of the house of representatives 
on the second day of the session of the general assembly then to be holden. ’ ’ 

The term ‘ ‘ returns ’ ’ so used in the constitution plainly means the returns as made up 
by the election officers in the several parishes. If the counting, tabulating, and certify¬ 
ing the votes by such officers is not making up the “returns,” and if such officers are 
not returning officers, then what is the statement of the votes, and what are such officers 
properly termed? What office do they perform? This is made the more manifest by 
the almost universal use of the term “ returns ” in connection with elections in the State 
of Louisiana before the existence of the returning board, and in most if not all the States 
in the Union. The constitution of Louisiana contains many provisions in reference to 
elections, and if it had been intended to attach such unusual meaning to the term ‘ ‘ re¬ 
turns,” such purpose would have been indicated by apt words. As there is no such 
unusual meaning indicated, the term must be taken in its ordinary acceptation when 
used in connection with elections. The clause of the statute providing for the returning 
board requires that the ‘ ‘ returns ’ ’ shall be sent by the proper returning officers to ‘ ‘ the 
returning board,” instead of to the secretary of state, as the constitution provides, and 
being so in conflict with the constitution it is null and void. 

2. Article 73 of the constitution provides: “The judicial power shall be vested in a 
supreme court, in district courts, in parish courts, and in justices of the peace;” and 
article 94 provides: “ No judicial powers, except as committing magistrates in criminal 
cases, shall be conferred on any officers other than those mentioned in this title, except 
such as may be necessary in towns and cities, and the judicial powers of such officers 
shall not extend further than the cognizance of cases arising under the police regulations 
of towns and cities in the State. ’ ’ 

The title from which these extracts are taken is styled in the constitution “ Judiciary 
department;” it provides ibr courts and the distribution of judicial power, but return¬ 
ing officers, or any like officers, are not mentioned in it, except by general terms to 
exclude them, and no judicial power is conferred upon them by it. 

The act creating ‘ ‘ the returning board ’ ’ undertakes to confer upon it very high and 
important judicial powers. In section 3, above set forth, it undertakes to empower and 
confer jurisdiction upon “the returning board” to investigate touching riots, disturb¬ 
ances, &c., and to decide to what extent the same affected the election at any polling 
place, and how, to adjudicate that the vote of the poll or voting place shall be counted, 
or cast out wholly and rejected; to examine further testimony, to send for persons and 
papers, and to allow persons interested in such elections to come before them and assert 
and defend their rights. And by necessary implication, it is intended to confer all 
judicial power essential to determine all such questions as may come under their juris¬ 
diction. But the constitution, as we have seen, expressly forbids that any judicial power 
shall be conferred upon such officers, and the statutory provision in question is therefore 
null and void. 

It may be said that if the returning board and its acts are nullities then the election 
must fail absolutely. This does not follow; but if it should, this is no excuse or justi¬ 
fication, and cannot put life into the statute when there is a plain and palpable violation 
of the constitution. But such consequences cannot follow. The returning officers des¬ 
ignated by the constitution must send the returns to the secretary of state, and the leg¬ 
islature may be duly organized according to the ordinary rules of general parliamentary 
law. These are well understood, and in some States they alone prevail, and in the House 
of Representatives they prevailed for a long while. 

But granting, for the argument, that the returning board had a constitutional exist¬ 
ence, it plainly exceeded its powers in two material respects: 1. The statute regulating 
the manner of holding elections provides (see section 2, above set out), in reference to the 
returning board, as follows: “The presiding officer shall at such meeting open, in the 
presence of the said returning officers, the statements of the commissioners of election, 
and the said returning officers shall, from said statements, canvass and compile the re¬ 
turns of the election in duplicate; one copy of such returns they shall file in the office of 
the secretary of state, and of one copy they shall make public proclamation, by print¬ 
ing in the official journal and such other newspaper as they may deem proper, declaring 
the names of all persons and officers voted for, the number of votes for each person, and 
the names of the persons who have been duly elected. The returns of the election thus 


THE LOUISIANA CASES, 1873-80. 


581 


made and promulgated shall be prirna facie evidence in all courts of justice and before 
all civil officers until set aside after contest according to law of the right of any person 
named therein to hold and exercise the office to which he shall by such return be de¬ 
clared elected. The governor shall, within thirty days thereafter, issue commissions to 
all officers thus declared elected who are required by law to be commissioned.” 

Now, this provision is very material; it is not merely directory, it is mandatory and 
essential. “The statements of the commissioners of election ” are made by the officers 
at the polls, who held the election and knew exactly what votes were polled and under 
what circumstances; and, besides, these statements are sworn by the commissioners. 

The fact is, that in ascertaining the result of the election the returning board did not, 
from the statements of the commissioners of election, “canvass and compile the returns 
ot the election; ” but, on the contrary, they canvassed and compiled the returns from 
the consolidated returns made up by the supervisors, as provided in section 43 of the 
statute set out above. This conduct on the part of the returning board was not only 
unlawful, but the testimony goes to show that it was done willfully; that in repeated 
instances the commissioners’ returns did not correspond with the supervisors’ consoli¬ 
dated returns; that the latter had been so made up falsely, and always in favor of the 
Republican candidates, to the extent of some 3,500 votes. 

2. Section 26, set out above, of the statute referred to, provides that in case of riot, 
and other offenses specified, it shall be the duty of the commissioner or supervisor, as 
specified, to make under oath a clear and full statement of all the facts connected with 
such unlawful acts, and the effect of the same upon the election, and such statement 
must be corroborated under oath by three respectable citizens, qualified electors of the 
parish; such statements must be sent to the returning board, attached by wax or some 
adhesive substance to the returns of election. Section 3, set out above, of said act, 
prescribes the duties of the returning board in cases where such affidavits shall accom¬ 
pany returns sent to them. 

It will be seen that in one contingency they must not disturb the return, but count 
it; in another contingency they must reject it, and refuse to count it. Now, in plain 
violation of this statute in the respect last mentioned, the returning board in repeated 
instances, and after they had examined the returns and saw how results could be affected 
to suit their wishes and interests, received affidavits alleging such offenses in various 
parishes and vot ing places, which affidavits were not made by supervisors or commission¬ 
ers of election, but by other persons, and such affidavits did not accompany returns as 
required by law; and, pretending to act upon such affidavits, the returns were sup¬ 
pressed—not rejected, as allowed by law in the contingency named, but suppressed in 
such way as to give Republican candidates majorities where they did not receive major¬ 
ities in the parishes and at the voting places named. 

Mr. Kellogg admits in his statement (see it) that in the twelfth, eighteenth, and 
twenty-second senatorial districts the Democratic candidates had the majority of the votes 
cast at the polls, and, as the commissioners’ returns sent to the returning board showed, 
that in the election of ten members of the house of representatives designated the re¬ 
turns of commissioners showed that Democratic candidates were elected, and the return¬ 
ing board so changed or suppressed the returns as to show that the Republican candidates 
were elected. Without reference to the fraudulent purpose of the returning board in 
the respects just mentioned, it had no power thus to interfere with returns and alter or 
suppress them. If, under the constitution, it can exist at all for any purpose, it must 
pursue strictly the powers conferred upon it; it has not general jurisdiction, and cannot 
exercise powers like a court having general jurisdiction. It exceeded its powers, tran¬ 
scended its jurisdiction in the respects just mentioned, and such acts, apart from fraud, 
were null and void. 

It cannot be truly said that the returning board exceeded its jurisdiction and exercised 
important powers which the statute creating it did not purport to confer by inadvert¬ 
ence. On the contrary, the evidence shows conclusively that it assumed such powers 
in aid of the most flagrant frauds perpetrated by it. Indeed, its whole course of con¬ 
duct, in pretending to ascertain the result of the election, manifests most strikingly the 
real purpose had in view in creating this strange and unnatural tribunal. It ascertained 
results of the election, and seeing them, with deliberation and advisedly, changed them 
at will; made new ones, and always in favor of the Republican candidates. The returns 
from the parishes showed that Nicholls, the Democratic candidate for governor, had a 
majority over Packard, the Republican candidate for the same office, of 8,010 votes. By 
the exercise of the unlawful powers already pointed out, this majority was changed to a 
majority in favor of Packard of 3,426 votes. 

The evidence shows, and it is admitted by Mr. Kellogg, that Perkins, Democrat, had 
a majority for senator in the twelfth senatorial district; he beat Weber, Republican, 
largely, but the returning board gave the latter a certificate of election. Meredith, 
Democrat, had a majority over Hamlet, Republican, for the senate, for the eighteenth 


582 


SENATE ELECTION CASES, 


senatorial district; the returning board gave Hamlet the certificate. Sandiford, Dem¬ 
ocrat, beat Blunt, Republican, for the senate, in the twenty-second senatorial district; 
the returning board gave Blunt the certificate. 

In Ouachita Parish, Breard and Taylor, Democrats, beat Barrington and Brewster, 
Republicans for the house of representatives, as the parish returns show; but the re¬ 
turning board gave the Republicans certificates of election. In East Baton Rouge Par¬ 
ish, Dupr6, Williams, and Young, Democrats, beat Bird, Holt, and Lane, Republicans, 
for the house of representatives; the returning board gave the certificates of election to 
the Republicans. In La Fayette Parish, Marshall T. Martin, Democrat, beat Fernest 
Martin, Republican (these were brothers), for the house of representatives; the Repub¬ 
lican received the certificate of election. 

In West Feliciana Parish, McGee and Ryland, Democrats, beat Swazie and Early, 
Republicans, for the house of representatives. The Republicans, however, received cer¬ 
tificates of election. In Morehouse Parish, Washburn and Hammond, Democrats, beat 
Shelton and Blair, Republicans, for the house of representatives, but the certificates of 
election were given to the Republicans. In De Soto Parish, Pitts and Means, Demo¬ 
crats, beat Long and Johnson, Republicans; the latter received certificates of election. 
The returning board refused to count any returns from the parishes of Grant and East 
Feliciana; the returns were thrown out absolutely. The parish returns show that 
Lyons and Porter, Democrats, were elected from East Feliciana, and Randolph, Demo¬ 
crat, was elected from Grant Parish. 

The parish returns show that the Democrats were elected in each instance above men¬ 
tioned, and Mr. Kellogg admits that they received majorities. (See his statement made 
to the committee on 13th of November instant.) These changes were wrought by the 
returning board, not in the exercise of the powers sought to be conferred upon them by 
statute and in the way prescribed, but by the exercise of arbitrary power, for which there 
was no color of legal sanction. The statute creating the board required that it should 
be composed of five persons to be elected from all political parties. In fact there were 
but four members composing it, and all of them Republicans. The statute commanded 
that the vacancy should be filled by those members in office; they peremptorily refused 
to fill the vacancy. 

In changing the results of the election as above stated, the sittings of the board were 
irregular; their movements were clandestine and collusive; they received illegal evi¬ 
dence to the end they might make pretext for suppressing polls; they received sug¬ 
gestions from persons not allowed by law to make them; and after they and their polit¬ 
ical associates saw that it was necessary to change results in their own interests, Mr. 
Spofford proposed to prove that Mr. Kellogg, then governor and a candidate for the 
United States Senatorship which he now claims, “joined in making illegal complaints 
and inducing the board to consider them.” 

In view of the facts and circumstances developed by the testimony received by the 
committee we do not hesitate—we feel constrained to declare—that the returning board 
in Louisiana in pretending to ascertain and determine the result of the election in that 
State in November last not only proceeded in many material respects without the sanc¬ 
tion or even color of law, but perpetrated the most flagrant and shameless frauds, sur¬ 
passing, if possible, any ever perpetrated by that tribunal before, and by such means 
undertook to change the actual result of that election so as to elect the Republican can¬ 
didate for governor and give the Republicans a majority in the legislature. Their action 
was unlawful, willful, corrupt, concerted; and we cannot escape the conviction that it 
was, to say the least and best, connived at and encouraged by persons occupying impor¬ 
tant stations in and out of the State of Louisiana. 

On the 1st day of January, A. D. 1877, as the constitution of Louisiana directs, the 
legislature designated as “the Nicholls legislature” assembled in Saint Patrick’s Hall 
in the city of New Orleans. The following extracts from the journal of the senate, 
found on pages 1 and 2, show the circumstances under which it met: 

“The members of this senate, duly elected, proceeded at 12 m. on the 1st of January, 
1877—being the first Monday of said month—to the State capitol of the State of Louisi¬ 
ana, to which they were refused admittance, and which they found in the possession of 
a large body of metropolitan police and armed men. 

‘ ‘ They were reliably informed of the presence of five companies of United States troops 
in an adjoining building, and that an entrance into the State capitol, by which the troops 
could be readily introduced into the senate chamber, had been especially made for that 
purpose. As the representatives of the people, this body considered it contrary to law 
and the spirit of free institutions to organize a general assembly of the State of Louisiana 
under a military guard calculated to overawe and intimidate the members. 

“For which reasons they repaired to Saint Patrick’s Hall, in the city of New Orleans, 
where a permanent organization has been effected.”—(Senate journal, 1877, page 2.) ' 

Then follows on the next page, 3, signed by twenty senators, making a quorum: 

“The undersigned holding-over senators, and senators-elect, do hereby solemnly pro- 


583 


THE LOUISIANA CASES, 1873-80. 

test against the occupation of the capitol of the State by an armed body of metropolitan 
police and other armed retainers, supported by a large body of Federal troops in an 
adjacent building immediately accessible to the State-house by a passage purposely pre¬ 
pared with that object in view, which illegal, arbitrary, and revolutionary proceedings 
have been consummated by the order and under the sanction of the governor of the 
State, and the lieutenant-governor as presiding officer of the senate, for the purpose 
of overawing and controlling the deliberations of the general assembly, and preventing 
the access of the members duly elected, as well as the citizens of the State, to the meet¬ 
ings of their servants, save upon the written permission of the governor,” &c. 

There were in the senate at the organization on the day it assembled twenty senators. 
Of these, nine were “holding-over senators,” and their right is not questioned; eight 
new senators held certificates from the returning board, and it is admitted that S. G. 
Perkins, senator from the twelfth district, received a majority, he beating Weber, the 
Republican candidate. It is likewise admitted that T. E. Meredith received a majority 
of the votes cast in the eighteenth senatorial district over Hamlet, the Republican candi¬ 
date. And it is also admitted that J. W. Sandiford received a majority of the votes cast 
m the twenty-second senatorial district over Blunt, the Republican candidate. The par¬ 
ish returns show these facts, and they are admitted. (See Mr. Kellogg’s statement, made 
to the committee on the 13th of November, 1877.) 

It required nineteen senators to make a quorum; twenty senators were present at, and 
participated in, the organization. 

The following extracts from the journal of the house of representatives show the cir¬ 
cumstances attending the organization of that body (page 1): 

‘ ‘ House of Representatives, 
u New Orleans , January 1, 1877. 

“At 12 o’clock m. the clerk of the house of representatives, in accordance with the 
law, took his place on the stand of the speaker of the house and stated that he had found 
the State-house barricaded and in the possession of the police and military of the State, 
placed there by order of the governor, and a militia officer in charge of the hall of the 
house of representatives; that he had demanded that such officers should withdraw, and 
the obstructions to the free ingress and egress to the State-house and hall of the house of 
representatives be removed; that he had been refused such demand, and would not organ¬ 
ize the house of representatives under such circumstances, but would go elsewhere and 
organize that body. He then repaired to Saint Patrick’s Hall, where the house was 
called to order.” 

Mr. Trezevant was the clerk who organized the house; he was clerk of the “old house ” 
and the person authorized by law to organize the new one. 

There were present and participating in the organization of the house sixty-two mem¬ 
bers, sixty-one being a quorum; of these-held certificates from the returning board. 

Of those present, the parish returns show, and it is admitted (see Mr. Kellogg’s statement 
above cited), that D. A. Breard, jr., and J. G. Taylor, of Ouachita Parish, received ma¬ 
jorities over Barrington and Brewster, Republicans; that J. Pitts and Joe T. Means, of 
De Soto Parish, received majorities over Long and Johnston, Republicans; that Robert 
H. Ryland and J. B. McGehee, of West Feliciana, received majorities over Swazie and 
Early, Republicans; that W. W. Washburn and J. D. Hammond, of Morehouse Parish, 
received majorities over Shelton and Blair, Republicans; that James T. Williams, H. C. 
Young, and J. W. Dupr6, of East Baton Rouge Parish, received majorities over Bird, 
Holt, and Lane, Republicans; that Marshall T. Martin, of La Fayette Parish, received 
a majority over Fernest Martin, Republican; that W. W. Carlos, of Webster Parish, re¬ 
ceived a majority over Heath, Republican; that W. B. Porter and T. B. Lyons, of East 
Feliciana, received all the votes cast; had no opponent; this vote the returning board 
threw out; that E. G. Randolph, of Grant Parish, received a majority of all the votes cast; 
the vote of this parish the returning board threw out. 

It thus appears that “the Nieholls legislature,” on the first day it assembled, had a 
quorum, and more than a quorum, of members who had been elected at the polls, and in 
fact had the right to sit. But for the unlawful and fraudulent action of the returning 
board, there could be no pretense for suggestion that the organization thus made was not 
strictly legal in all respects. Indeed, the organization was made in pursuance of the 
actual result of the election. 

It is said, however, that whatever may have been the result of the election at the poll¬ 
ing places throughout the State in the parishes, the legislature must be organized by 
those persons, and only those, who hold certificates of election from the returning board, 
and that without reference to the conduct of that board, whether dishonest, fraudulent, 
or otherwise. In reply to this view we have endeavored to show, first, that the return¬ 
ing board had no constitutional sanction as returning officers of the election for governor 
and members of the legislature, and its acts are therefore void; second, that granting for 



584 


SENATE ELECTION CASES. 


argument’s sake that it had a legal existence, it transcended its powers and jurisdiction, 
first, in failing to “ canvass and compile ” the returns of the commissioners of election, 
instead of the consolidated returns sent to it by the supervisors of election; and second, 
in that it received suggestions after seeing the returns and knowing the result as to vio¬ 
lence, disorders, &c., otherwise than as the law allowed. And the testimony makes the 
dishonest purpose and fraudulent conduct of the returning board in changing results 
manifest. 

There is, however, another answer. The Senate, in Spencer’s case, after much debate, 
decided that when there are two rival bodies of men in a State, each claiming to be the 
lawful legislature, it is competent to look behind the certificate of election and see who 
was in fact elected at the polls. This is a recent decision, and it was sanctioned by the 
vote of every Republican Senator who voted on the question. We do not stop here to 
'question the soundness of this decision; it was made by a Republican Senate and in 
favor of a Republican Senator. We cite the following extract from the report of the 
Committee on Privileges and Elections in this case. The committee say: 

“When we consider that all the forms prescribed by law for canvassing and certifying 
an election, and for the organization of the two houses, are designed to secure to the 
persons actually elected the right to act in the offices to which in fact they have been 
elected, it would be sacrificing the end to the means were the Senate to adhere to the 
mere form, and thus defeat the end which the forms were intended to secure. 

4 4 The persons in the two bodies claiming to be the senate and house of representatives 
who voted for Spencer constituted a quorom of both houses of the mem bers actually elected; 
the persons in the State-house legislature who voted for Sykes did not constitute a quo¬ 
rum of the two houses duly elected, but a quorom of persons certified to have been elected 
to the two houses.” 

The legislature, so organized,[on the 2d day of January, 1876, canvassed the returns for 
governor, and declared Francis T. Nicholls elected, and on the 8th day of the same month 
he took the oath of office prescribed by law, and has ever since that time exercised the 
office of governor. 

On the 24th day of April, 1877, the legislature elected the contestant, Mr. Spofford, to 
be a Senater in the United States Senate for six years from the 4th of March, 1877, hav¬ 
ing voted in joint assembly at least once each legislative day since the 10th of January, 
1877. Each house took a vote on the 9th. The whole number of votes cast in that 
election was 153. Mr. Spofford received 140 votes. There were but three members of 
the legislature absent at the time. Of the members thus voting, 51 had been in 4 4 the 
Packard legislature” at the time Mr. Kellogg claims to have been elected, and voted 
for him. At the time Mr. Spofford was elected there was only “the Nicholls legisla¬ 
ture” in the State, and there was no opposing or rival body. 

All the acts passed by this legislature are duly published and recognized as the stat¬ 
utes of Louisiana. They are recognized by all the co-ordinate branches of the State gov¬ 
ernment and by the whole people, and by the courts of the United States sitting in that 
State. The first act passed by this legislature was approved by Governor Nicholls on 
the 8th of January, 1877, the day he went into office. 

The body of men which claimed to be the legislature of Louisiana, and commonly 
called 44 the Packard legislature,” assembled in the State-house, in New Orleans, on the 
1st day of January, 1877. The house was barricaded and surrounded by bodies of met¬ 
ropolitan police, and several companies of United States troops were kept in readiness 
for action in the neighborhood of the State-house. There were in the senate branch of 
this legislature eight 4 4 holding-over ’ ’ senators and eleven persons claiming to be senators 
holding certificates of election from the returning board. These persons were Messrs. 
Blunt, Bryant, Case, Demas, Hamlet, Hooper, Sutton, Stamps, Wakefield, Wheeler, and 
Weber—eleven in all. These altogether make nineteen, a quorum, if they had all been 
elected, but Blunt, Hamlet, and Weber were defeated candidates; this the parish re¬ 
turns show and the fact is admitted. So that, in fact, there were in this senate but 
sixteen senators entitled to sit in a lawful legislature. One of these (Hamlet) hav¬ 
ing departed, left them without even a nominal quorum. Then Mr. Steven, a 44 holding 
over” senator, sitting in “the Nicholls legislature,” happened to be in the State- 
house on business, and the sergeant-at-arms of the Packard legislature seized and took 
him into the senate chamber to try and restore their nominal quorum. He was taken 
by force, and against his will and protest, and he did not participate in anything done. 
The seizure of Mr. Steven was a disgraceful proceeding, and the object had in view was 
to make a nominal quorum in order to admit as senators, upon a feigned contest, Baker 
and Kelso, two candidates who were defeated at the polls, and who did not even hold 
certificates of election from the returning board. Steven did not vote, refused to par¬ 
ticipate, and without him there was no quorum present when Kelso and Baker were 
admitted. 

Mr. Steven gives the following account of his seizure. He says : 

44 On January 1, 1877, I was one of the holding-over senators who formed the senate 


THE LOUISIANA CASES, 1873-80. 585 

of the State of Louisiana convened on that day in Saint Patrick’s Hall, in the city of New 
Orleans. 

I was one of the committee of three appointed by the chair to inform Governor Kel- 
that the senate was duly organized, and ready to receive any communication he 
might have to make, &c., &c. The other members of the committee were Mr. Garland, 
ot Saint Landry, and Mr. Boatner, of Catahoula, both of whom were elected in 1876. 
I he committee proceeded to the Saint Louis Hotel, were admitted to Governor Kel¬ 
logg’s office, and delivered to him in person the message with which they were charged. 
Upon leaving Governor Kellogg’s office, I was stopped by two or three persons, who 
stated that they were sergeants-at-arms of the senate, and that I must accompany them 
to the senate chamber. I stated that the senate of the State had met in Saint Patrick’s 
Hall on that day and had adjourned until the following day; therefore I refused to ac¬ 
company them, and refused to submit to arrest. 

I was thereupon seized by two or more of these parties and pushed and dragged in 
the direction of the senate chamber, I resisting at every step. In this manner we 
reached the outside bar of the senate, where, by getting my feet against the railing, I 
was enabled for a few moments to make a more effectual resistance. I was finally 
forced to the bar of the senate. I addressed myself to the president (Lieutenant-Gov¬ 
ernor Antoine), who was in the chair, stating the circumstances which led to my arrest, 
protesting against the arrest, and demanding that I be permitted to withdraw. The 
president stated that I could only be permitted to withdraw by unanimous consent of 
the senate, which was refused. At this juncture Governor Kellogg came in through a 
door immediately in the rear of the president’s desk. I appealed to him as commander- 
in-chief of the forces occupying the building to release me, as I considered my arrest as 
equivalent to a violation of a flag of truce. 

11 lie stated he was very sorry, &c., but as the senate had me in custody he could not 
interfere. I then made an attempt to go out, but was seized by several persons and 
iorced back. I took a chair and sat down with my back to the president, at the end of 
the center aisle. The roll was called, my name repeated probably a dozen or more 
times; I made no response nor gave recognition in any way, shape, or manner whatever. 
When the roll was called on the seating of Baker and Kelso I made no answer, nor gave 
sign or motion of any kind whatever. 

“WILL STEVEN.” 


There was not at any time a lawful senate. 

In the Packard house of representatives there were at no time more than sixty-eight 
persons present claiming to be members. Eleven of these, including Brown, of Vernon 
Parish, as has already appeared, were defeated at the polls, so the parish returns show, 
and Mr. Kellogg admits that their Democratic opponents had majorities of the votes cast. 
This leaves the house without a quorum of members actually elected. Mr. Kellogg, there¬ 
fore, did not receive a majority of the members elected to the legislature. 

The evidence shows that but for the presence of the United States troops the so-called 
“Packard legislature” would never have assembled, and never would have set up any 
claim to be a legislature; but for the presence of troops it would not have continued to 
exist for one hour; it never for one moment existed as a free legislative body; it was the 
creature of fraud and force, and as soon as the latter disappeared it fled from the face of 
men; it felt and realized that it had no rightful existence, and hence its friends and foes 
alike repudiated it. From the beginning it was a sham, a pretense, and a fraud; it 
passed no act, it did nothing that is recognized as law by any of the authorities in Lou¬ 
isiana; it did no act for which any authority claims validity, except the pretended elec¬ 
tion of the contestant, Mr. Kellogg. This is the only act it did that claims recognition, 
and it remains to be seen if the Senate of the United States alone will recognize and 
accept this single fraudulent act of a pretended legislature which the State and people 
of Louisiana utterly repudiate. 

Treachery and fraud mark every lineament of the so-called 1 ‘ Packard legislature ’ ’ 
from its incipiency, and the Senate cannot escape seeing this. But apart from fraud, 
where there are two rival bodies of men in a State, each claiming iu good faith to be the 
lawful legislature, and each contests the right of the other from the beginning of their 
existence, and such contest is continued without intermission until one prevails and ab¬ 
sorbs the other, so that the latter completely disappears, and all the co-ordinate branches, 
and all the authorities, and the great mass of the people of the State, and the President 
and courts of the United States, recognize the prevailing body as the lawful legislature, 
and all its acts passed from its beginning as laws of the State, and recognize no single act 
of the body so absorbed and totally disappearing, can the Senate of the United States, 
many months after it has so completely disappeared, recognize the body thus disappear¬ 
ing as the legislature of the State by admitting to the Senate as a Senator a person who 
claims to have been elected by such a body of men ? 


586 


SENATE ELECTION CASES. 


The statement of the proposition irresistibly suggests the answer—it cannot. The 
Senate may have the physical power to do so—it has not the right to do so—it can only 
do so by the arbitrary exercise of lawless, despotic power. • Such an act on the part of the 
Senate could only be regarded as a defiance of the authority, right, and will of the State 
and an insult, to its dignity; it would shock the moral sense of the American people, and 
afford cause for profound distrust and alarm for the safety of our system of government. 

The misrule and public disorders which have afflicted the State and people of Lou¬ 
isiana seem to have passed away. The settlement of differences and a new administration 
of government resulting upon the election in November last restored peace, good order, 
and a wholesome government. 

That State and that people have settled their political contests and strifes which have 
annoyed and distressed the whole country. The Senate ought not, we trust it will not, 
disturb that settlement and revive bitter controversies. On the contrary, we trust it 
will, as in law and right it must do, accept and ratify that settlement by admitting the 
contestant, Mr. Spofford. His credentials, in all respects, comply with requirements of 
law, and he is well entitled to sit as Senator. 

ELI SAULSBURY. 

A. S. MERRIMON. 

BENJ. H. HILL. 

Wednesday, November 28, 1877. 

Mr. Wadleigh rose to a question of privilege and moved that the Senate proceed to 
the consideration of the resolution yesterday reported by the Committee on Privileges 
and Elections to admit William P. Kellogg to a seat in the Senate as a Senator from the 
State of Louisiana. 

******* 

The Senate proceeded to the consideration of the said resolution. 

On motion by Mr. Thurman to amend the resolution by striking out all after the word 
“resolved” and in lieu thereof inserting: 

“That M. C. Butler be now sworn as a Senator from the State of South Carolina,” 
After debate, 

On the question to agree thereto, the yeas were 30 and the nays were 30. 

On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Bailey, Bayard, Beck, Cockrell, Coke, 
Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, 
Hereford, Hill, Jones of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, 
Merrimon, Morgan, Patterson, Randolph, Saulsbury, Thurman, Voorhees, Wallace, 
Whyte,- and Withers. 

Those who voted in the negative are Messrs. Allison, Anthony, Booth, Bruce, Burn¬ 
side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, 
Conover, Dawes, Dorsey, Edmunds, Hoar, Howe, Jones of Nevada, Kirkwood, McMillan, 
Matthews, Mitchell, Morrill, Oglesby, Paddock, Rollins, Sargent, Saunders, Spencer, 
Teller, and Wadleigh. 

The vote of the Senate being equally divided, 

The Vice-President voted in the negative. 

So the amendment was not agreed to. 

Upon the announcement of the result of the vote on the amendment, 

Mr. Thurman rose to a question of order, and submitted that the provision of the 
Constitution that the Vice-President shall have no vote unless where the Senate is 
equally divided does not apply to the case of seating a member; but that questions of 
seating a member should be left to the Senators themselves, under the provision that 
each House shall be the judge of the elections, qualifications, and returns of its own 
members; and, 

After debate, 

Mr. Thurman withdrew the question of order. 

The question recurring on agreeing to the resolution, 

Pending debate, a message was received from the House of Representatives. 

******* 

The Senate resumed the consideration of the resolution to admit William Pitt Kel¬ 
logg to a seat in the Senate; and, 

On motion by Mr. Patterson (at 6 o’clock and 10 minutes p. m.) that the Senate ad¬ 
journ, it was determined in the affirmative—yeas 29, nays 27. 

******* 

[The debate is found on pages 730-749 of the Congressional Record, vol. vi.] 


587 


THE LOUISIANA CASES, 1873-80. 

Thursday, November 29, 1877. 

The Senate resumed the consideration of the resolution reported by the Committee on 
Privileges and Elections to admit William Pitt Kellogg to a seat in the Senate as a Sen¬ 
ator from the State of Louisiana; and, 

Pending debate, 

On motion by Mr. Conover (at 4 o’clock and 5 minutes p. % m.), the Senate proceeded 
to the consideration of executive business. 

[The debate is found on pages 749-764 of the Congressional Record, vol. vi.] 


Friday, November 30, 1877. 

The Senate resumed the consideration of the resolution reported by the Committee 
on Privileges and Elections to admit William Pitt Kellogg to a seat in the Senate as a 
Senator from the State of Louisiana; and, 

The question being on the amendment proposed by Mr. Saulsbury to amend the res¬ 
olution so as to read as follows, viz: 

‘ ‘ Whereas it appears by the report of the minority of the Committee on Privileges 
and Elections that Henry M. Spofford, one of the contestants to a seat in the Senate from 
the State of Louisiana, did ask and demand the authority of the committee to produce 
testimony on the five following points at issue between the contestants, to wit: 

“ 1. That the facts relative to the election of Tremoulet, Cressy, and Rolle, from the 
seventh representative district of New Orleans, were substantially as set forth in the 
statement read by H. M. Spofford in his argument before this committee on the 24th 
October, 1877. 

‘ ‘ 2. That the composition, votes for Senator, and political proclivities of the legislature 
on the 24th April, 1877, when H. M. Spofford was elected Senator, were substantially as 
set forth in the aforesaid argument. 

‘ 1 3. That by the actual returns or statements as made in duplicate by the supervisors 
of registration (and assistant supervisors), with their appointees, the commissioners of 
election, and sent one set to the clerk of the district court of each parish in the county 
and to the secretary of state in the city, and the other set to the returning board (so 
called), showed a majority of votes actually cast throughout the State of about 8,000 
votes for Nicholls and Wiltz over Packard and Antoine for the offices of governor and 
lieutenant-governor in the election that took place in Louisiana November 7, 1876. 

“4. Besides these specific violations of the constitution and of the law under which 
they pretended to act, I charge that the conduct of the returning officers in suppressing 
polls and changing the result of the constitutional returns was clandestine, collusive, 
tyrannical, and unjust; that the real work of conducting an election under pretext of 
compiling votes was proceeded with in a secret chamber by a corps of partisan clerks, 
while the occasional open sessions of the board were side-shows devised to screen what 
was going on within; that arbitrary rules of evidence were established for pretended 
contests and changed so often and abruptly that no fair trial could be had or was had 
before the board; that illegal complaints were constantly received and illegal evidence 
admitted for the purpose of setting aside polls that were in the way of such candidates 
as the board desired to elect; and that Mr. Kellogg himself, then governor, joined in 
making illegal complaints and inducing the board to consider them. 

“5. I am informed, and so charged, that the returns from Vernon Parish, after they 
came into possession of the returning officers, and while they were under their control, 
were fraudulently altered by a change of figures, tantamount to a forgery of a public 
record; that the board knew what the figures upon those returns were before their alter¬ 
ation, and yet after the alteration promulgated the results of said forgery as the true 
returns; that by such fraudulent alteration E. E. Smart, candidate for representative in 
the State assembly, who had in fact and according to the returns as they first came to 
the board defeated his competitor, Brown, was left behind and Brown, the defeated can¬ 
didate, falsely declared elected; and that said Brown took his seat in the Packard house 
and figures on the journal as present on the 2d of January, 1877, when there was a pre¬ 
tended count of votes for governor and lieutenant-governor in joint assembly, and per¬ 
haps on one or two other occasions, but that he afterward abandoned that body and 
went home, acknowledging that he never had been elected. 

“And which request was refused by a majority of said committee: Therefore, 

“ Resolved , That the credentials of William Pitt Kellogg and of Henry M. Spofford, 
the contestants for the seat in the Senate from the State of Louisiana, be recommitted 
to the Committee on Privileges and Elections, with all the papers relating to said con¬ 
test, with instructions to said committee to take testimony on the issues above men¬ 
tioned.” 

The question being first put by the Chair on agreeing to the amendment of Mr. Sauls- 


SENATE ELECTION CASES. 


588 

bury to the resolution reported by the committee, viz: Strike out all after the word “re¬ 
solved” and in lieu thereof insert: 

“That the credentials of William Pitt Kellogg and of Henry M. Spofford, the con¬ 
testants for the seat in the Senate from the State of Louisiana, be recommitted to the 
Committee on Privileges and Elections, with all the papers relating to said contest, with 
instructions to said committee to take testimony on the issues above mentioned,” 

It was determined in the*negative—yeas 29, nays 29. 

On motion by Mr. Bayard, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Bailey, Bayard, Beck, Cockrell, Coke, 
Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, Hereford, Hill, Jones 
of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, Merrimon, Morgan, Pat¬ 
terson, Randolph, Saulsbury, Thurman, Voorhees, Wallace, Whyte, and Withers. 

Those who voted in the negative are Messrs. Allison, Anthony, Booth, Bruce, Burn¬ 
side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, 
Conover, Dawes, Dorsey, Edmunds, Hoar, Howe, Jones of Nevada, Kirkwood, McMil¬ 
lan, Matthews, Mitchell, Morrill, Paddock, Rollins, Sargent, Saunders, Spencer, Teller, 
and Wadleigh. 

So the amendment was not agreed to. 

The question recurring on agreeing to the resolution, 

On motion by Mr. Thurman that the Senate proceed to the consideration of executive 
business, it was determined in the negative—yeas 21, nay 31. 

******* 

The Senate resumed the consideration of the resolution reported by the Committee on 
Privileges and Elections to admit William Pitt Kellogg to a seat in the Senate as a Sen¬ 
ator from the State of Louisiana; and, 

After debate, 

On motion by Mr. Hill to amend the resolution by striking out all after the word 
“resolved” and in lieu thereof inserting: 

“That Henry M. Spofford be admitted as a Senator from the State of Louisiana on a 
prima facie title, and subject to the right of William Pitt Kellogg to contest his seat,” 

It was determined in the negative—yeas 27, nays 29. 

On motion by Mr. Allison, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Bailey, Beck, Bayard, Cockrell, Coke, 
Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, Here¬ 
ford, Hill, Jones of Florida, Kernan, McCreery, McDonald, McPherson, Merrimon, Mor¬ 
gan, Randolph, Saulsbury, Thurman, Voorhees, Wallace, and Withers. 

Those who voted in the negative are Messrs. Allison, Anthony, Booth, Bruce, Burn¬ 
side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, 
Conover, Dawes, Dorsey, Edmunds, Hoar, Howe, Kirkwood, McMillan, Matthews, 
Mitchell, Morrill, Oglesby, Paddock, Patterson, Rollins, Saunders, Spencer, Teller, and 
Wadleigh. 

So the amendment was not agreed to. 

The question recurring on agreeing to the resolution in the following words: 

11 Resolved, That William Pitt Kellogg is, upon the merits of the case, lawfully en¬ 
titled to a seat in the Senate of the United States from the State of Louisiana for the 
term of six years commencing on the 4th day of March, 1877, and that he be admitted 
thereto upon taking the proper oath; . 

11 Resolved, That Henry M. Spofford is not entitled to a seat in the Senate of the 
United States,” 

It was determined in the affirmative—yeas 30, nays 28. 

The yeas and nays having been heretofore ordered, 

Those who voted in the affirmative are Messrs. Allison, Anthony, Booth, Bruce, Burn¬ 
side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, 
Conover, Dawes, Dorsey, Edmunds, Hoar, Howe, Jones of Nevada, Kirkwood, McMillan, 
Matthews, Mitchell, Morrill, Oglesby, Paddock, Patterson, Rollins, Saunders, Spencer, 
Teller, and Wadleigh. 

Those who voted in the negative are Messrs. Bailey, Bayard, Beck, Cockrell, Coke, 
Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, Here¬ 
ford, Hill, Jones of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, Merri¬ 
mon, Morgan, Randolph, Saulsbury, Thurman, Voorhees, Wallace, and Withers. 

So the resolution was agreed to. 

******* 

Mr. William Pitt Kellogg then appeared, and the oath prescribed by law having been 
administered to him by the Vice-President, he took his seat in the Senate. 

[The debate is found on pages 767-797 of the Congressional Record, vol. vi.] 


THE LOUISIANA CASES, 1873-80. 
[First session of the Forty-sixth Congress.] 


589 


Friday, March 21, 1879. 

Mr. Jonas presented a memorial of Henry M. Spolford, of Louisiana, praying an inves¬ 
tigation into his claim to a seat in the Senate as Senator from that State; which was 
referred to the Committee on Privileges and Elections. 


Wednesday, April 16,1879. 

Mr. Hill, of Georgia, from the Committee on Privileges and Elections, reported the 
following resolution: 

u Resolved, That the Committee on Privileges and Elections he authorized to have 
printed for its use the arguments before it in the case of Spolford against Kellogg rela¬ 
tive to a seat in the Senate from the State of Louisiana, with such evidence, papers, and 
documents relative to the case as it may deem proper. ’ ’ 

The Senate proceeded, by unanimous consent, to consider the said resolution; and 
having been amended on the motion of Mr. Hoar, the resolution, as amended, was agreed 
to, as follows: 

“ Resolved, That the Committee on Privileges and Elections be authorized to have 
printed for its use the arguments before it in the case of Spolford against Kellogg rela¬ 
tive to a seat in the Senate from the State of Louisiana, with such other proceedings in 
relation to the case as it may deem proper. ’ ’ 

[The debate is found on pages 468, 469 of the Congressional Record, vol. ix, part 1.] 

Thursday, May 1,1879. 

Mr. Saulsbury, from the Committee on Privileges and Elections, reported the follow* 
ing resolution; which was ordered to be printed: 

‘ ‘Resolved, That the Committee on Privileges and Elections, to which was referred the 
memorial of Henry M. Spolford, praying permission to produce evidence relating to the 
right of Hon. William Pitt Kellogg to the seat in the Senate held by him from the State 
of Louisiana, and in support of the claim of said petitioner thereto, be, and said commit¬ 
tee is hereby, instructed to inquire into the matters alleged in said petition, and for that 
purpose said committee is authorized and empowered to send for persons and papers, 
administer oaths, and do all such other acts as are necessary and proper for a full and fair 
investigation in the premises. Said committee may, in its discretion, appoint a subcom¬ 
mittee of its own members to make such investigation in whole or in part; which sub¬ 
committee shall have authority to employ a clerk, stenographer, and sergeant-at-arms, 
and shall have all the powers of the general committee to administer oaths and send for 
persons and papers, and may make such investigation either in Washington or in the State 
of Louisiana; and said committee or its subcommittee may sit in vacation.” 

Friday, May 2, 1879. 

The Senate proceeded to consider the resolution yesterday reported by Mr. Saulsbury, 
from the Committee on Privileges and Elections, instructing said committee to inquire 
into the matters alleged in the petition of Henry M. Spolford, relating to the right of 
Hon. William Pitt Kellogg to a seat in the Senate; and 

On motion by Mr. Hoar to amend the resolution by striking out all of said resolution 
and inserting in lieu thereof the following: 

“ Whereas on the 25th day of October, 1877, the Senate unanimously adopted the fol¬ 
lowing resolution: 

‘ ‘ 1 Resolved, That the Committee on Privileges and Elections on the contested cases of 
William Pitt Kellogg and Henry M. Spolford, claiming seats as Senators from the State 
of Louisiana, and whose credentials have been referred to such committee, be authorized 
to send for persons and papers, and administer oaths, with a view of enabling said com¬ 
mittee to determine and report upon the title, respectively, on the merits of each of said 
contestants to a seat in the Senate; ’ 

“And whereas on the 26th day of November, 1877, said committee reported the fol¬ 
lowing resolutions: 

* ‘ ‘ Resolved, That William Pitt Kellogg is, upon the merits of the case, entitled to a seat 
in the Senate of the United States from the State of Louisiana for the term of six years 
commencing on the 4th day of March, 1877, and that he be admitted thereto upon taking 
the proper oath; 

“ ‘Resolved, That Henry M. Spolford is not entitled to a seat in the Senate of the United 
States;’ 

“And on the 30th day of November, 1877, the Senate adopted said resolution, and 


590 


SENATE ELECTION CASES. 


thereafter on the same day said Kellogg was duly admitted to take the oath and took his 
seat as a Senator from said State for said term: 

“ Resolved , That said proceedings are final and conclusive upon the right of said Kel¬ 
logg and the claim of said Spofford to said seat for said term.” 

Pending debate, 

The President pro tempore announced that the morning hour had expired, and called 
up the unfinished business of the Senate at its adjournment yesterday. 

[The debate is found on pages 1022-1024 of the Congressional Record, vol. ix, part 1.] 

Tuesday, May 6,1879. 

The Senate resumed the consideration of the resolution reported by Mr. Saulsbury from 
the Committee on Privileges and Elections, May 1, 1879, instructing said committee to 
inquire into the matters alleged in the petition of Henry M. Spofford, relating to the 
right of Hon. William Pitt Kellogg to a seat in the Senate; and, 

The question being on the amendment proposed by Mr. Hoar, 

Pending debate, 

The Presiding Officer announced that the morning hour had expired. 

[The debate is found on pages 1071-1087 of the Congressional Record, vol. ix, part 1.] 

Wednesday, May 7, 1879. 

The Senate resumed the consideration of the resolution reported by Mr. Saulsbury from 
the Committee on Privileges and Elections, May 1, 1879, instructing said committee to 
inquire into the matters alleged in the petition of Henry M. Spofford, relating to the 
right of Hon. William Pitt Kellogg to a seat in the Senate; and. 

The question being on the amendment proposed by Mr. Hoar, 

After debate, 

On motion by Mr. Edmunds to amend the resolution by inserting after the word 
“petition,” in line 6, the following: “So far only as relates to any charge in said peti¬ 
tion of personal misconduct on the part of said Kellogg which may render him liable to 
expulsion or censure, ’ 1 it was determined in the negative—yeas 20, nays 27. 

On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, 
Cameron of Wisconsin, Conkling, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, 
Logan, McMillan, Morrill, Platt, Rollins, Saunders, Teller, and Windom. 

Those who voted in the negative are Messrs. Bailey, Beck, Call, Coke, Davis of West 
Virginia, Garland, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, 
Kernan, Lamar, McDonald, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, 
Slater, Vance, Vest, Voorhees, Walker, and Withers. 

So the amendment was not agreed to. 

On motion by Mr. Conkling to amend the resolution by adding at the end thereof the 
following: 

“ Provided , That the inquiry hereby authorized shall be confined to the matters alleged 
in the memorial of Mr. Spofford to be new and different from those covered by the pre¬ 
vious inquiry,” 

It was determined in the negative—yeas 20, nays 27. 

On motion by Mr. Saulsbury, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, 
Cameron of Wisconsin, Conkling, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, 
Logan, McMillan, Morrill, Platt, Rollins, Saunders, Teller, and Windom. 

Those who voted in the negative are Messrs. Bailey, Beck, Call, Coke, Davis of West 
Virginia, Garland, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, 
Kernan, Lamar, McDonald, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, 
Slater, Vance, Vest, Voorhees, Walker, and Withers. 

So the amendment was not agreed to. 

The resolution having been amended on the motion of Mr. Hoar, 

On motion by Mr. Edmunds to further amend the resolution by inserting after the 
word “that,” in line 1, the following: “recognizing the validity and finality of the 
previous action of the Senate in the premises, ’ ’ it was determined in the negative— 
yeas 20, nays 27. 

On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, 


591 


THE LOUISIANA CASES, 1873-80. 

Cameron of Wisconsin, Conkling, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, 
Logan, McMillan, Morrill, Platt, Rollins, Saunders, Teller, and Windom. 

Those who voted in the negative are Messrs. Bailey, Beck, Call, Coke, Davis of West 
Virginia, Garland, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of Florida, 
Kernan Lamar, McDonald, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, 
Slater, Vance, Vest, Voorhees, Walker, and Withers. 

So the amendment was not agreed to. 

On motion by Mr. Conkling to further amend the resolution by adding at the end 
thereof the following: 

u Provided, That such questions in said case as were fully considered and adjudged in 
the former investigation shall not be opened under this resolution, 77 

It was determined in the negative—yeas 20, nays 27. 

On motion by Mr. Conkling, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, 
Cameron of Wisconsin, Conkling, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, 
Logan, McMillan, Morrill, Platt, Rollins, Saunders, Teller, and Windom. 

Those who voted in the negative are Messrs. Bailey, Beck, Call, Cockrell, Coke, Davis 
of West Virginia, Garland, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of 
Florida, Kernan, Lamar, McDonald, Maxey, Morgan, Pendleton, Randolph, Ransom, 
Saulsbury, Slater, Vance, Vest, Voorhees, Walker, and Withers. 

So the amendment was not agreed to. 

On motion by Mr. Logan to further amend the resolution by adding at the end thereof 
the following: 

“ Provided, That said committee be further empowered and directed to make inquiry 
and take testimony upon the matter as to whether any unlawful or corrupt means were 
employed to disorganize the body by which William Pitt Kellogg claims to have been 
elected to the Senate, or to organize that by which the memorialist claims to have been 
elected or to secure the alleged election of the memorialist, 5 7 

During the debate, 

Mr. Morgan, while addressing the Senate on the proposed amendment, having used the 
following language: 

“Has the Senator from Louisiana (Mr. Kellogg) any objection to the Committee on 
Privileges and Elections investigating the question whether or not he bribed the mem¬ 
bers of the legislature that elected him? 77 

Mr. Edmunds raised a question of order, that it was not in order, where another Sen¬ 
ator is personally concerned and a resolution is offered affecting his character, to propound 
such a question. 

The President pro tempore decided that, in the opinion of the Chair, the language used 
by the Senator from Alabama contained no imputation upon the Senator from Louisiana, 
and was in order. 

After further debate, 

On the question to agree to the amendment proposed by Mr. Logan, it was determined 
in the negative—yeas 19, nays 28. 

On motion by Mr. Logan, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Allison, Bell, Booth, Bruce, Burnside, 
Cameron of Wisconsin, Dawes, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, Logan, 
McMillan, Morrill, Platt, Rollins, Saunders, and Windom. 

Those who voted in the negative are Messrs. Bailey, Beck, Call, Coke, Davis of West 
Virginia, Garland, Groome, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones 
of Florida, Kernan, Lamar, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, 
Slater, Vance, Vest, Voorhees, Walker, Williams, and Withers. 

So the amendment was not agreed to. 

The question recurring on agreeing to the amendment proposed by Mr. Hoar, viz: 
Strike out all of said resolution, and in lieu thereof insert the following: 

“Whereas on the 25th day of October, 1877, the Senate unanimously adopted the 
following resolution: 

“ ‘ Resolved , That the Committee on Privileges and Elections on the contested cases of 
William Pitt Kellogg and Henry M. Spofford, claiming seats as Senators from the State 
of Louisiana, and whose credentials have been referred to such committee, be authorized 
to send for persons and papers, and administer oaths, with a view of enabling said com¬ 
mittee to determine and report upon the title, respectively, on the merits, of each of said 
contestants to a seat in the Senate; 7 

“And whereas on the 26th day of November, 1877, said committee reported the fol¬ 
lowing resolutions: 

“ 1 Resolved, That William Pitt Kellogg is, upon the merits of the case, entitled to a 


592 


SENATE ELECTION CASES. 


seat in the Senate of the United States from the State of Louisiana for the term of six 
years commencing on the 4th of March, 1877, and that he be admitted thereto upon 
taking the proper oath; « 

“ ‘ Resolved , That Henry M. Spofford is not entitled to a seat in the Senate of the 
United States; ’ 

“And on the 30th day of November, 1877, the Senate adopted said resolutions; and 
thereafter, on the same day, said Kellogg was duly admitted to take the oath, and took 
his seat as a Senator from said State for said term: Therefore, 

‘ ‘ llesolved , That said proceedings are final and conclusive upon the right of said Kel¬ 
logg and the claim of said Spofford to such seat for said term, ’ ’ 

It was determined in the negative—yeas 17, nays 26. 

On motion by Mr. Hoar, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Allison, Bell, Bruce, Cameron of Wiscon¬ 
sin, Dawes, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, Logan, McMillan, Mor¬ 
rill, Platt, Rollins, Saunders, and Windom. 

Those who voted in the negative are Messrs. Bailey, Call, Coke, Davis of West Vir¬ 
ginia, Garland, Groome, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of 
Florida, Kernan, Lamar, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, 
Slater, Vance, Vest, Voorhees, Walker, and Williams. 

So the amendment was not agreed to. 

On the question to agree to the resolution as amended, it was determined in the affirm¬ 
ative—yeas 26, nays 17. 

On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Bailey, Call, Coke, Davis of West Vir¬ 
ginia, Garland, Groome, Hampton, Harris, Hill of Georgia, Houston, Jonas, Jones of 
Florida, Kernan, Lamar, Maxey, Morgan, Pendleton, Randolph, Ransom, Saulsbury, 
Slater, Vance, Vest, Voorhees, Walker, and Williams. 

Those who voted in the negative are Messrs. Allison, Bell, Bruce, Cameron jaf Wiscon¬ 
sin, Dawes, Edmunds, Ferry, Hill of Colorado, Hoar, Ingalls, Logan, McMillan, Mor¬ 
rill, Platt, Rollins, Saunders, and Windom. 

So the resolution as amended was agreed to, and is as follows: 

“ Resolved , That the Committee on Privileges and Elections, to which was referred the 
memorial of Henry M. Spofford, praying permission to produce evidence relating to the 
right of Hon. William Pitt Kellogg to the seat in the Senate held by him from the State 
of Louisiana, and in support of the claim of said petitioner thereto, be, and said commit¬ 
tee is hereby, instructed to inquire into the matters alleged in said petition; and for that 
purpose said committee is authorized and empowered to send for persons and papers, ad¬ 
minister oaths, and do all such other acts as are necessary and proper for a full and fair 
investigation in the premises. Said committee may, in its discretion, appoint a sub¬ 
committee of its own members to make such investigation in whole or in part; which 
subcommittee shall have authority to employ a clerk, stenographer, and sergeant-at- 
arms, and shall have all the powers of the general committee to administer oaths and 
send for persons and papers, and may make such investigation either in Washington or 
in the State of Louisiana, and said committee or its subcommittee may sit in vacation; 
and said committee are further instructed to inquire and report whether bribery or other 
corrupt or unlawful means were resorted to to secure the alleged election of the memo¬ 
rialist. ’ ’ 

[The debate is found on pages 1099-1123 of the Congressional Record, vol. ix, part 1.] 

Satubday, June 21, 1879. 

Mr. Hill, of Georgia, from the Committee on Privileges and Elections, reported the 
following resolution; which was considered by unanimous consent, and agreed to: 

“ Resolved , That the Committee on Privileges and Elections, or a subcommittee of the 
same, be, and are hereby, authorized to sit during the recess of the Senate for the pur¬ 
pose of continuing the investigation in the Spofford-Kellogg contest.” 

[Second session of the Forty-sixth Congress.] 

Monday, February 9, 1880. 

The Vice-President laid before the Senate a resolution* of the legislature of Louisiana 
relative to the election of William Pitt Kellogg to the Senate of the United States from 
that State; which was referred to the Committee on Privileges and Elections, and ordered 
to be printed. 


* Found in Senate Miscellaneous, 46th Cong., 2d sess., vol. 1, No. 37. 




593 


THE LOUISIANA CASES, 1873-80. 


Thursday, February 12, 1880. 

The Yicc-Presidejit laid before the Senate the memorial of Republican members of 
the legislature of Louisiana, relative to the election of William Pitt Kellogg to the Sen¬ 
ate of the United States from that State; which was referred to the Committee on Priv¬ 
ileges and Elections, and ordered to be printed. 

[A copy of the memorial is found on pages 833-835 of the Congressional Record, vol. 
x, part 1.] 


Tuesday, February 17, 1080. 

Mr. Jonas presented a memorial of the Union Soldiers’ Association of New Orleans, 
La., relative to the election of William Pitt Kellogg to the Senate of the United States, 
praying that his right to a seat therein be declared null and void; which was referred to 
the Committee on Privileges and Elections. 

Monday, March 22, 1880. 

Mr. Hill, of Georgia, from the Committee on Privileges and Elections, to whom was 
referred the memorial of Henry M. Spofford, claiming to be entitled to a seat in the Sen¬ 
ate as a Senator from the State of Louisiana, submitted a report (No. 338) thereon, ac¬ 
companied by the following resolutions for consideration; which were ordered to be 
printed: 

“1. Resolved , That, according to the evidence now known to the Senate, William P. 
Kellogg was not chosen by the legislature of Louisiana to the seat in the Senate for the 
term beginning on the 4th day of March, 1877, and is not entitled to sit in the same. 

“2. Resolved , That Henry M. Spofford was chosen by the legislature of Louisiana to 
the seat in the Senate for the term beginning on the 4th of March, 1877, and that he be 
admitted to the same on taking the oath prescribed by law.” 

Mr. Hoar asked and obtained leave to submit the views of a minority of the Committee 
on Privileges and Elections on the foregoing subject; which were ordered to be printed, 
to accompany the report No. 388. 

On motion by Mr. Hill, of Georgia, that the testimony taken by the Committee on 
Privileges and Elections in the investigation of the claim of Henry M. Spofford to a seat 
in the Senate be printed, 

After debate, it was determined in the affirmative. 

[The debate is found on pages 1758-1768 of the Congressional Record, vol. x, part 2.] 

REPORT OF COMMITTEE.* 

[The committee consisted of Messrs. Saulsbury (chairman), Hill of Georgia, K ernan 
Bailey, Pryor, Vance, Cameron of Wisconsin, Hoar, and Logan.] 

In the Senate of the United States. 

March 22, 1880.—Ordered to be printed. 

Mr. Hill, of Georgia, from the Committee on Privileges and Elections, submitted the 
following report: 

The Committee on Privileges and Elections, to whom was referred the memorial of 
Henry M. Spofford, claiming to be entitled to the seat in the Senate from the State of 
Louisiana now occupied by William P. Kellogg, ask leave to submit the following re¬ 
port : 

On the 7th day of November, 1876, an election was held in the State of Louisiana for 
a governor and members of the legislature. In March, 1877, William P. Kellogg pre¬ 
sented credentials signed by Stephen B. Packard, claiming to be governor, and certi¬ 
fying that said Kellogg had been duly elected to the seat in the Senate for the term 
beginning on the 4th of March, 1877, by the legislature chosen at said election. In Oc¬ 
tober, 1877, Henry M. Spofford presented credentials, signed by Francis T. Nicholls, 
claiming to be governor, and certifying that said Spofford had been duly elected to the 
same seat by the legislature chosen at said election. These several credentials were re¬ 
ferred by the Senate to the Committee on Privileges and Elections. On the 26th of No¬ 
vember, 1877, a majority of the committee reported that the committee had investigated 
the issue, and that Kellogg, on the merits, was entitled to the seat. A minority of the 
committee reported that the committee had not fully investigated the issue, but had re¬ 
fused to do so, and asked that the credentials of both contestants be recommitted, with 
instructions to complete the investigation. The Senate refused to recommit, adopted 
the majority report, and Kellogg was admitted to the seat on the 28th of November, 
1877. 

* Taken from Senate Reports 46th Cong., 2d sess., vol. 4, No. 388. The accompanying testimony is 
here omitted- 

S. Doc. 11-38 





594 


SENATE ELECTION CASES. 


On the 21st day of March, 1879, Henry M. Spofford presented his memorial to the 
Senate, complaining that he was denied the privilege of producing important testimony 
on the former hearing, alleging that much evidence of bribery and corruption by said 
Kellogg in procuring his pretended election had been since discovered, and asking that 
the case “be re-examined, to the end that justice may be done.” 

This memorial was referred to this committee, and the Senate, subsequently to that 
reference, ordered and authorized the committee to take testimony by the whole com¬ 
mittee or by subcommittee, with full power to send for persons and papers, and to do 
all things necessary and usual in such cases. 

The oommittee have faithfully executed this order of the Senate. 

The memorialist and the sitting member appeared before the committee in person and 
by counsel. On the 5th of June, 1879, the full committee commenced the examination 
of witnesses in this city. The examination was continued in November and December 
by a subcommittee in the city of New Orleans, and was again resumed by the full com¬ 
mittee in this city, and was continued until both parties announced they had no further 
testimony to offer. Nearly one hundred and fifty witnesses have been examined, and 
over 1,200 printed pages of testimony have been taken and are herewith reported to the 
Senate, with the conclusions of law and fact at which the committee have arrived. 

In the opinion of your committee, the evidence, now for the first time fully taken, 
clearly and abundantly establishes the following facts: 

I. That said William Pitt Kellogg, then holding the office of governor of the State of 
Louisiana, and pending the canvass in said election of 1876, did conspire with divers 
persons, and in aid of such conspiracy did fraudulently use the influence and power of 
his office of governor, to prevent a fair, free, and legal election in said State, to the end 
that he might procure from the commissioners of election the return of a legislature a 
majority of whose members should be of the Republican party and presumed to be 
favorable to his election to the Senate. 

II. That, having failed in this, the said William Pitt Kellogg, still holding the office 
of governor, did conspire with divers persons, and in aid of such conspiracy did fraud¬ 
ulently use the influence and power of his office of governor, to change the result as re¬ 
turned by the commissioners of election, to the end that he might procure, through false 
certificates of election, the organization of a pretended legislature a majority of whose 
members should be of the Republican party, and supposed to be favorable to his elec¬ 
tion to the Senate. 

III. That said William Pitt Kellogg did conspire with divers others to prevent, and by 
force, through the metropolitan police, aided by the Army of the United States, did pre¬ 
vent the lawfully elected members of the legislature, and especially those of the Demo¬ 
cratic party, from assembling in the halls of the senate and house of representatives in 
the State-house of the said State of Louisiana; and did, by threats, by the use of money, by 
the promise of offices, and by other corrupt practices, compel and induce to assemble in 
said halls, respectively, a mob of his co-conspirators, against the will of the people of 
Louisiana, many of whom had not been elected, and some of whom had been neither 
elected nor certified, to the end that he might procure a pretended legislature for the in¬ 
auguration of Stephen B. Packard as governor, who, he well knew, had not been elected, 
and from which mob he might procure the form of his own election to the Senate, and 
which pretended election he knew such pretended governor would certify. 

IY. That said William Pitt Kellogg having thus corruptly procured the assembling 
of a body of persons pretending to be a legislature, in which were included persons not 
elected, and from which had been forcibly excluded persons who had been elected and 
certified as members, did, by bribery, by the use of money and the promise of offices, 
and by other corrupt practices, induce said body of persons to go through the form of 
choosing him to a seat in the Senate of the United States. 

Y. That said William Pitt Kellogg, well knowing that the facts now proven to exist did 
exist, did falsely represent that no such facts existed or could be proven, seeking thereby to 
induce a majority of the committee, without taking the evidence which has now been 
taken, to make a report declaring his title to the seat, and with intent to induce a major¬ 
ity of the Senate to admit him to the seat so fraudulently claimed. 

YI. That, to prevent the discovery of the briberies, frauds, and corruptions now proven 
to exist, the said William Pitt Kellogg did procure a large number of the persons com¬ 
posing said pretended legislature to be appointed to public offices of profit in the custom¬ 
house at New Orleans and elsewhere, as inducement not to disclose the truth. That, 
after other persons, officers and members of said pretended legislature had freely and 
voluntarily admitted, under oath, their knowledge of said briberies and corruptions, 
and had been summoned to appear as witnesses before your committee, and were under 
the protection of the Senate, said William Pitt Kellogg did, by bribery and corrupt prac¬ 
tices, induce such witnesses to testify falsely that they had not made such admissions, 
or that, if they had made them, they were not true. 


595 


THE LOUISIANA CASES, 1873-80. 

The committee realize the severity of these conclusions, but they are more than justi¬ 
fied by the evidence. In view of their severe character, however, the committee are 
unwilling to confine this report to a simple announcement of their findings, but will 
incorporate in the report itself a portion of the abundant evidence which establishes their 
correctness. 

As illustrative of the evidence in support of the first conclusion before stated, your 
committee will here refer to the following facts: 

1. In 1876 F. J. Stokes was parish judge of Grant Parish, appointed by Kellogg. One 
Ward was the supervisor of registration for said parish, also appointed by Kellogg. Be¬ 
fore the registration was completed Ward hid his books, and came to New Orleans and 
represented to Kellogg that he “ was bulldozed and driven from the parish. ” Kellogg 
asked Stokes how the parish was. Stokes replied that “whenever the people of the 
parish was voting the Democrats carried the parish. ’ ’ Kellogg said, ‘ ‘ If the people there 
don’t want an election, we will throw the parish out.” 

Stokes testified most positively that the bulldozing pretext was false, and that the 
whole thing was fixed up to throw the parish out because it was Democratic. He says 
‘ ‘ there was no bulldozing there at all. ’ ’ 

In answer to the direct question, “ Was there any real danger to him (Ward) in stay¬ 
ing there (in the parish)? ’ ’ Stokes said, ‘ ‘ Not a solitary particle. There was no danger 
to any man in the parish if he staid there and behaved himself. They treated him 
(Ward) very quietly and nicely as long as he staid in the hill country, and they paid his 
bills up there in the hill country.” The hill country was the strong Democratic portion 
of the parish. 

Evidently to make a case of apparent fairness for the sitting member, Jewett testified 
that “ Kellogg handed him a letter directing Ward to return to the parish.” This let¬ 
ter he gave to Ward “about the 1st of November.” In reply to this Judge Stokes tes¬ 
tified that “he (Ward) never started back. It was no calculation to have him start. In 
the first place, to have started on the 1st of November, he could not have gotten there. 
He told Kellogg at the time that the only way to the mouth of Red River was to take a 
stage.” “He (Ward) actually did not go back.” One fact puts the truth of this evi¬ 
dence of Stokes beyond possible doubt. Ward was allowed to remain in New Orleans 
until after the time for completing the registration under the law had expired, and then 
the pretended order to return was given him. 

Thus defrauded, the people of the parish held an election without registration, and the 
Democrats carried the parish, but it “was thrown out.” 

2. By the election laws of Louisiana the registration of voters was required to be com¬ 
pleted nine days before the election. The law also required that when the registration 
was closed the books of registration from the several parishes should be sent to the chief 
registrar’s office in New Orleans. 

In this election of 1876, the books of registration, at least of the several wards in the 
city of New Orleans, were sent to the custom-house instead of to the office of the chief 
registrar. Peter Williams was the chief clerk and acting registrar of voters in 1876. 
Without his knowledge or consent, an order by telegraph was sent out to the super¬ 
visors of registration in his name, ordering the books to be sent to the custom-house. To 
this order the name of Williams was forged by Blanchard, Kellogg’s clerk. Williams 
adds: 

“In the morning, when I came to the office I expected to find the books there, but I 
did not, and I went down, then to the custom-house and found the books there, and found 
them erasing names from them. 

‘ ‘ Question. Who were erasing the names ?—Answer. The supervisors and their clerks. 

“ Q. That was at the custom-house?—A. At the custom-house, sir.” 

There is no denial by any one of this bold and shameless fraud and forgery. It is 
shown by various witnesses that the ‘ ‘ supervisors and their clerks ’ ’ were erasing names 
from these registration books during the night, and that a large number was erased, chiefly 
of Democrats. One of the Republican candidates for the legislature from the seventh 
ward of New Orleans (Moore) himself struck off “ a large number of registered Democratic 
voters.” 

As illustrative of the evidence which shows the correctness of the second conclusion 
announced above, the following facts are cited: 

1. Henry Houser was a member of the metropolitan police force, and was stationed as 
the night watch at Governor Kellogg’s house A few days after the election he saw 
Blanchard, Jewett, Anderson, and Packard frequently at Kellogg’s house at night. They 
often entered from the rear way. Witness frequently saw Blanchard and Jewett writ¬ 
ing in one of the rooms upstairs. They would come about 7 or 8 o’clock, and remain 
from 11 to 12. They had papers which looked like election papers. He heard Kellogg 
concede that the election for the house of representatives had gone Democratic, and Blan¬ 
chard told witness they were working on the election returns, and his understanding 


SENATE ELECTION CASES. 


596 

from them was that they were seeking, by throwing out parishes and working on the re¬ 
turns to change the result, and make it Republican. They were thus engaged until after 
Packard’s inauguration. This witness is strongly corroborated in several particulars, 
not only by conceded facts, but also by the witnesses called to rebut his testimony. 

2. There can now be no reasonable doubt that the scheme to reverse the verdict of the 
ballot-box was hatched at these clandestine night meetings at Kellogg’s own house, and 
the plan for carrying out the scheme under the false pretexts of violence and intimida¬ 
tion was here begun by those conspirators, of whom Kellogg was the chief. The frauds 
resorted to to change the result of the election in the seventh ward of New Orleans are 
now for the first time fully disclosed. This result, changing 3 votes from the Demo¬ 
crats to the Republicans in the house, must be added to the many heretofore known and 
admitted. 

“The returns from the parishes showed that Nicholls, the Democratic candidate for 
governor, had a majority over Packard, the Republican candidate for the same office, of 
8,010 votes. By the exercise of the unlawful powers already pointed out, and by the 
frauds now proven, this majority was changed to a majority in favor of Packard of 3,426 
votes. 

‘ ‘ The evidence shows, and it is admitted by Mr. Kellogg, that Perkins, Democrat, had 
a majority for senator in the twelfth senatorial district; he beat Weber, Republican, 
largely, but the returning board gave the latter a certificate of election. Meredith, 
Democrat, had a majority over Hamlet, Republican, for the senate for the eighteenth 
senatorial district; the returning board gave Hamlet the certificate. Sandiford, Demo¬ 
crat, beat Blunt, Republican, for the senate in the twenty-second senatorial district; the 
returning board gave Blunt the certificate. 

“In Ouachita Parish Breard and Taylor,Democrats, beat Barrington and Brewster, 
Republicans, for the house of representatives, as the parish returns show; but the return¬ 
ing board gave the Republicans certificates of election. In East Baton Rouge Parish 
Dupre, Williams, and Young, Democrats, beat Bird, Holt, and Lane, Republicans, for 
the house of representatives; the returning board gave the certificates of election to the 
Republicans. In La Fayette Parish Marshall T. Martin, Democrat, beat Fernest Mar¬ 
tin, Republican (these were brothers), for the house of representatives; the Republican 
received the certificate of election. 

“In West Feliciana Parish McGee and Ryland, Democrats, beat Swazie and Early, 
Republicans, for the house of representatives. The Republicans, however, received cer¬ 
tificates of election. In Morehouse Parish Washburn and Hammond, Democrats, beat 
Shelton and Blair, Republicans, for the house of representatives, but the certificates of 
election were given to the Republicans. In De Soto Parish Pitts and Means, Democrats, 
beat Long and Johnson, Republicans; the latter received certificates of election. The re¬ 
turning board refused to count any returns from the parishes of Grant and East Feliciana; 
the returns were thrown out absolutely. The parish returns show that Lyons and Porter, 
Democrats, were elected from East Feliciana, and Randolph, Democrat, was elected from 
Grant Parish. 

* ‘ The parish returns show that the Democrats were elected in each instance above 
mentioned, and Mr. Kellogg admits that they received majorities.” (See his statement 
made to the committee on 13th of November, 1877.) 

Of the eighty-three persons who were said to be in the joint convention which elected 
Kellogg, nineteen are positively shown not to have been elected, but were fraudulently 
given certificates. Seventy-nine were necessary to make a quorum. The ‘ ‘ work on the 
election returns” at Kellogg’s house was evidently effective, and bore fruit through the 
returning board, one and sometimes two of whose members attended these clandestine 
night meetings. 

Mr. Steven, a member of the Nicholls senate, was seized and held by force, and was 
counted as present against his protest, to enable this Packard senate to go through the 
farce of a contest, and to seat two outsiders named Baker and Kelso, who were not elected 
by the people. 

The evidence in support of the third conclusion is furnished by the witnesses of both 
contestants. It is easy to understand that such a body of men so fraudulently assembled 
could not be kept together by a sense of duty or other legitimate means. Accordingly 
the State-house, which they seized, and in which they were gathered, was barricaded and 
surrounded with troops, and the members were keptin their halls day and night. Orders 
were given by the pretended officers of the legislature, and especially on the day of elec¬ 
tion, to keep members present by force. Some who were absent in spite of these precau¬ 
tions were fraudulently personated as present, and others were allowed to record their 
votes the next day. But many of the members were impecunious. “They needed 
money to meet their necessities, they had to live, and wanted to be helped from time to 
time as their money gave out.” Louis J. Souer, who figures prominently in all these 
frauds in behalf of Kellogg, and who was a member of the lower honse, advanced “out 


THE LOUISIANA CASES, 1873-80. 597 

of his own money ’ ’ about $3,000, much of which he admits was never returned. John A. 
Walsh and other accommodating witnesses and Mends of Kellogg also advanced money. 
These advances were called loans, made on warrants or vouchers. It is impossible to 
mistake the meaning of such testimony. What Souer calls loans are spoken of by other 
witnesses very differently, who say these advances were bribes, but they were to be called 
loans if any question should arise about their character. The testimony given by the 
witnesses introduced by Kellogg himself is overwhelmingly convincing that force, fraud, 
and bribery were all needed to keep this motley crowd of conspirators against the people 
of Louisiana in their barricaded den of iniquity. 

In support of the fourth conclusion the evidence is equally convincing, for after all these 
frauds to cheat the voters, to change the returns, and to force an assemblage, Kellogg 
was in danger of losing the prize. Warmoth testifies: “ There was a bitter fight for the 
Senatorship, not so much on my part, although I was spoken of, but between Kellogg and 
Pinchback. ’ ’ The witness himself ‘ 4 was a dark horse, ’ ’ thinking, may be, neither could 
be elected, and the honors would fall onhim. “My eyes,” headds, “were not altogether 
blind to that contingency.” Even after Kellogg was nominated he thought it was abso¬ 
lutely necessary for him to get all the votes in order to be admitted to the seat. 

Thus, both to secure the nomination and the election, the field for bribery and other 
corrupt practices was enlarged. Kellogg now added threats also. He declared if he 
was not elected he would disband the concern and turn them all over to the Nicholls 
government. 

Quite a number of witnesses have testified directly and positively that they saw Kellogg 
pay money to different members to vote for him for Senator. 

A large number are shown to have admitted that they received money for voting for 
Kellogg, and many of these admissions were made under oaths and taken voluntarily 
and without inducement. 

The evidence establishing direct bribery with money of a large number of the members 
is simply crushing. If a tithe of this evidence is credible there can be no escape from 
the conclusion that Kellogg secured his election by direct and unblushing bribery. Of¬ 
fices under the Federal administration were also promised to secure the same result, 
and how faithfully these promises were fulfilled is unmistakably disclosed in the evi¬ 
dence. 

The evidence referred to in support of the four first conclusions before announced 
can leave no doubt in any rational mind of the correctness of the fifth conclusion as to 
the reasons which urged the sitting member so earnestly to oppose a full investigation 
on the former hearing of this case. If such investigation had been made, as it was once 
ordered by the Senate and resolved by the committee, and the evidence now before us 
had been taken, it would be doing violence to all possible respect for the United States 
Senate to suppose the sitting member could have been declared entitled 4 4 on the mer¬ 
its ” to take a seat in this body. It was indispensably necessary to conceal the facts to 
discover any merit in his title. 

In support of the sixth conclusion the evidence is, if possible, still more convincing. 

On the 5th day of May last the Senate directed this committee to investigate the 
charges made by the memorialist. It is significant that this order was adopted by the 
Senate only after the most earnest and persistent opposition from the sitting member 
himself. 

The passage of this order by the Senate to take testimony dates the beginning of efforts 
by the sitting member and his assistants to suppress evidence, which your committee 
believe were never exceeded in energy and varied devices. 

The following special dispatches from Washington City appeared in the Times news¬ 
paper of New Orleans on the 13th and 16th days of May, respectively: 

Washington, May 12,1879. 

In view of the interest the leading Republicans and the Administration take in the 
result of the contest for Kellogg’s seat, it is certain that any Republican who can be shown 
to have worked against him at home will stand a slim chance of any recognition from Hayes 
or the next administration if it be Republican. Kellogg is playing his hand for all it is 
worth, and don’t intend to have any fire in the rear if he can help it. 

W. H. R. 

Washington, May 15, 1879. 

Everything is not lovely in Republican circles in Louisiana; in fact, quite the reverse. 
There are said to be some people in the party who are not helping the Hon. William Pitt 
Kellogg as they ought, and one of them holds a high position in the custom-house. 

The party and the President are both rallying to the assistance of the Hon. W. P. Kel¬ 
logg with some solidity, and the Republican in Louisiana who refuses to actively aid in 


598 


SENATE ELECTION CASES. 


this contest may make up his mind to go to the rear if Kellogg wins or the next admin¬ 
istration is Republican. 

The Hon. John Sherman and Attorney-General Devens have signilied their willingness 
to aid Kellogg in this contest all they can, and some of the custom-house rolls are very 
likely to be revised pretty soon. 

W. H. R. 

There can be no doubt as to the intent of this notice, and the evidence discloses with 
striking clearness the effect. It should be remembered in this connection that the frauds 
which were to be investigated could only, in their nature, be proven by those who were 
either members or officers of the pretended Packard legislature, and by those who were 
permitted to have free access to it, and by others who were in Kellogg’s confidence at the 
time the frauds were committed. All others were excluded by bayonets from this barri¬ 
caded mock legislature, thus conspiring to defraud the people its members pretended to 
represent. They were plainly notified of the consequences which they must expect, both 
from this Administration and the next, who would dare reveal what they knew of these 
frauds, or who failed actively to prevent such revelation. 

The rewards were as unstinted as the threats were positive. The examination by this 
committee began the 5th of June. During this month of June there were thirty-nine of 
the members of this Packard mob of Kellogg conspirators holding Federal offices, nearly 
all in the custom-house at New Orleans, which constituted about one-half the number 
claimed to be present at the time of Kellogg’s election. Thirty-nine so employed appear 
by the testimony before your committee. Other statements have been made to the pub¬ 
lic increasing the number of said Packard legislators so employed to fifty-six. The 
object of these appointments is not left by the evidence to conjecture. The evidence is 
direct, positive, unimpeached, and undisputed that the object was to prevent revelations 
against Kellogg. 

H. T. Brown testified that Morris Marks (revenue collector, and who was one of Kel¬ 
logg’s most active supporters) said to witness in June or July, ‘ ‘ I cannot take care of any 
of my friends now while this fight is going on about Kellogg. I have to appoint a set of 
G—d d—d curs and hounds to keep them from squealing on Kellogg. ’ ’ Morris Marks 
was present during the investigation by the subcommittee in New Orleans; was actively 
at work for Kellogg; was himself a witness in behalf of Kellogg; and did not deny this 
statement of Mr. Brown. 

Similar statements and allusions frequently occur in the evidence, and they are over¬ 
whelmingly corroborated by many facts. Witnesses were appointed to offices immedi¬ 
ately before they were to testify, and were also appointed promptly after they had testified 
satisfactorily to Kellogg. Witnesses who were clearly convicted of perjury and false 
swearing before this committee were appointed to places, plainly as rewards for such per¬ 
jury and false swearing. Witnesses who were proven to have made admissions that they 
knew Kellogg was not elected, or that his election was corrupt, and threatened to reveal 
what they knew if they were not given offices, promptly received the offices and as 
promptly testified that Kellogg was elected, and by the fairest means possible! 

The instances of this use of the public offices to hush witnesses, to procure witnesses, 
and to reward witnesses are as numerous as they are disgraceful. Your committee do 
not believe such shameful civil service degradation can be found in the annals of any 
civilized people. It is pregnant evidence of all the charges of fraud and corruption against 
the sitting member. It cannot be supposed that such means were employed to maintain 
a title which was good ‘ ‘ on the merits. ’ ’ It cannot be doubted that such means were 
employed only to maintain a title which was secured by fraud, and which could only be 
retained by perjury. Your committee are not authorized to say and will not say that 
the President and certain of his Cabinet were willing parties to this corrupt use of the 
public offices; but they feel constrained to say that if they had been willing parties they 
could not have been more accommodating and compliant to the sitting member. 

The evidence clearly reveals another very striking and unusual method of using the 
public offices. Those who held the offices were not only themselves faithful to their 
chief and his title “on the merits” in their own testimony, but they were active and 
vigilant to make others so. They ceased not to travel and labor in behalf of the sitting 
member to the utter neglect of their public duties, and without any cessation of their 
pay from the public treasury. 

Several members and officers of the body which pretended to elect Kellogg admitted, 
as the evidence shows, voluntarily, that there was no quorum present, that absent mem¬ 
bers were falsely personated, that the roll as made up was false, and that Kellogg had 
used bribery and corrupt means to secure his election. The memorialist, knowing the 
character of all these people who were parties to this enormous fraud, resorted to the 
natural precaution to have their statements reduced to writing and sworn to before vent¬ 
uring to summon them as witnesses. That such affidavits had been made, and that a 
number of these who made them had been or would be summoned to Washihgton as 


599 


THE LOUISIANA CASES, 1873-80. 

witnesses in behall ol the memorialist, became known to the sitting member’s vigilant 
sentinels in the custom-house. One employe of the custom-house came on to Washing" 
ton in advance ol the witnesses, among other things “ to arrange with Kellogg ” for cer¬ 
tain ol the witnesses. A notorious detective also came on in advance and registered in 
this city under an assumed name. This detective testified that he was sent by an officei 
in the custom-house to watch the counsel of the memorialist and to aid Kellogg. Youi 
committee do not rely on the character of this witness to establish his credit. His very 
service for Kellogg was discrediting. Like most of the witnesses in this case, he is only 
entitled to credit as his statements are corroborated, and many of his statements are most 
strikingly corroborated, and much that he said is shown by others to be true. The officer 
in the custom-house who is charged to have employed this detective was known to be 
very influential with the witnesses. He took the same train with the witnesses on their 
departure from New Orleans for this city. He traveled with them the entire distance; 
he exhorted the witnesses on the way to stand by their party; he telegraphed notice to 
Kellogg of the time they would arrive in Washington, and he remained with them, ate 
with them, and slept with them until the examination here closed. It is shown, too, 
that from the time this investigation was ordered by the Senate until its close in this city 
an active telegraphic correspondence was going on between the sitting member and his 
assistants here and the collector of customs himself in New Orleans. The telegrams are 
in cipher, and are herewith reported to the Senate. They most clearly relate to the wit¬ 
nesses, and are pregnant with all the indicia of fraud, collusion, and corruption. 

The witnesses arrived in Washington about 10 o’clock p. m. on the 4th of June, and 
their examination by this committee was to commence the next morning. Whatever 
arrangements, therefore, were necessary to be made with or ratified by the sitting mem¬ 
ber to induce them to deny the affidavits they had made in New Orleans had to be com¬ 
pleted during that night and before the meeting of this committee the ensuing morning. 
Accordingly the employes of the custom-house and the detective who came in advance 
from New Orleans and several others already in Washington in the Government’s employ 
and Kellogg’s service met the witnesses at the depot on their arrival. The detective swears 
that five of the witnesses were conducted by him, under previous arrangement, to Kel¬ 
logg’s office after midnight. He says the witnesses were afraid of prosecution if they 
denied their sworn statements made in New Orleans, and that to relieve this fear some 
law was read to them to the effect that they could not be indicted for such denial. Being 
satisfied on this point, the witnesses were willing to contract, and the detective says did 
receive and accept from Kellogg money and promises of offices during his Senatorial 
term, and in consideration thereof did pledge themselves to disappoint the memorialist, 
who had called them as witnesses on the faith of their sworn statements, and to testify 
in all respects in favor of the sitting member. Thomas Murray did not attend this 
night conclave. He only of the witnesses was faithful to his statement made in New 
Orleans. He refused to accept the bribes offered him to do so. He and the detective 
both testified that such bribes were repeatedly urged upon him in increasing amounts. 
Refusing persistently to accept all offers to testify falsely, he was then offered money not 
to testify at all. He was urged to disobey the summons of this committee and escape 
into Canada, where he was to be well maintained until the investigation was closed, and 
he should receive a telegram in the words, “The Union forever,” by which he was to 
understand he could safely return. All these offers he refused, and did appear and 
testify, under the frowns of his comrades, to the truth of his previous statements. 

Another witness, Milton Jones, accepted the bribe but hesitated to commit the per¬ 
jury. In his stress he begged the counsel of the memorialist not to require him to 
testify, because he would be compelled to swear falsely under the influence of “big 
money.” Because of this earnest appeal he was not sworn by the memorialist. This 
witness was asked by Kellogg, through his faithful detective, to return the money, the 
price of the perjury he had thus avoided committing, but he refused to return it. Sub¬ 
sequently he was called by the sitting member before the subcommittee in New Orleans 
and made to execute his criminal bargain. Other devices were employed by the sitting 
member to suppress truth and establish falsehood. Those who refused to swear falsely 
were assailed as untrue to their party and social ostracism itself was visited upon them. 
Schemes were contrived to entrap them into inconsistent admissions. Witnesses who 
admitted they thought it legitimate to make and to swear to false statements were called 
to impeach the credibility of those who refused to imitate their example. Detectives 
were actively engaged under friendly professions in efforts to involve the memorialist in 
like briberies and frauds with those so abundantly proven upon the sitting member, all 
of which your committee cheerfully report not only failed but recoiled heavily on the 
sitting member. Witnesses were diligently trained to believe that the ejection of Kel¬ 
logg from the Senate would be the defeat of the Republican party in the nation and in 
Louisiana; that such defeat would render it impossible for any Republican to live in the 
State, and that perjury was a virtue when committed for the success of the Republican 


600 


SENATE ELECTION CASES. 


party. All these facts and very many more of like kind will be found in the testimony 
herewith reported to the Senate. 

That such is the testimony was not denied before your committee either by the sitting 
member or his able counsel. Indeed, it could not be denied without denying the plain 
language of very many witnesses. But it was earnestly insisted before your committee 
by both the sitting member and his counsel that this testimony would not justify the 
conclusion that the sitting member was not entitled to the seat in the Senate for two 
reasons, and first because they alleged the witnesses ought not to be believed. 

Two grounds are urged for disbelieving the witnesses: (1) because they were contra¬ 
dicted, and (2) because they were impeached as not entitled to credit on account of bad 
character. 

The contradictions were almost exclusively by witnesses who were parties to the 
crimes proven. To illustrate: If a witness testified positively that he saw money paid 
to a member for his vote, the implicated member was called to contradict this by testi¬ 
fying he did not receive money for his vote. Under this rule few criminals would be 
found guilty. It frequently happened, too, that the implicated member had previously 
and frequently admitted, and often under oath, that he did receive money for his vote. 
So he contradicted himself as well as the witnesses. It will be seen from the evidence, 
too, that these contradicting witnesses had often been provided with offices or other con¬ 
sideration after they made the admissions they were called to contradict, and others 
were promptly appointed to offices in the ever-accommodating custom-house after they 
had faithfully made the contradictions. 

Your committee attach little if any weight to such contradictions. In our view they 
are often strongly confirmatory of the witnesses-in-chief. 

Besides many of the material frauds proven are not disputed at all, and some are even 
admitted, because they were of a character which did not admit of contradiction. This 
is especially true of the frauds resorted to to prevent a fair election by the people; to 
change the result as returned by the commissioners of election, and the force and frauds 
employed to assemble and keep together the pretended Packard legislature. 

Let us then proceed to consider the allegation that the testimony should not be be¬ 
lieved because the witnesses were impeached on account of general bad character. 

Some few of the witnesses were not so impeached at all, and why they were not im¬ 
peached your committee do not understand, since the impeaching resources of the sitting 
member seemed to be exhaustless. As it is, however, the testimony which is unim¬ 
peached and uncontradicted is ample not only to justify but to require the adoption of 
the resolution herewith submitted. But your committee do not find it necessary to rest 
their conclusions solely on this unimpeached and uncontradicted evidence. 

We admit that a great number of the witnesses called on both sides were of very bad 
character, not only for truth, but for every other virtue, and if their credibility depended 
solely upon character they ought not to be believed. But the rules of law furnish safe 
guides in weighing this evidence. 

The accomplice of a criminal is necessarily of bad character, for he is a criminal him¬ 
self. If he is not to be believed because he is an accomplice, and therefore of bad char¬ 
acter, then an accomplice in no case ought to be allowed to testify. But in spite of bad 
character they are often the only accessible witnesses, and their evidence is often most 
satisfactory. Were it otherwise, those criminals would often be safest whose crimes were 
greatest. 

In the case before us nearly all the witnesses examined were the accomplices of Kel¬ 
logg in the crimes and frauds which resulted in his pretended election to the Senate. 
They were all conspirators against the people of Louisiana. The very fact that they 
were associates and accomplices in this conspiracy furnished the most conclusive proof of 
bad character. No other proof was needed to establish such bad character. The con¬ 
spirators were surrounded with troops by order of their chief, Kellogg himself, by his 
power as governor, and the Army was employed to protect them day and night from in¬ 
trusion by people worthy of credit by reason of good character. Being faithless in their 
very assembling to all good people, the chief chance of redress for good people was in the 
natural hope they would become faithless to each other, and reveal the frauds, briberies, 
and corruptions which cemented them for evil. Their revelations appear in the evi¬ 
dence, and your committee do not doubt would far more abundantly appear if the Fed¬ 
eral Administration would withdraw the patronage which has purchased the silence and 
perjury of so many of the gang. 

All the facts and circumstances of corroboration required by the rules of evidence to 
accompany the testimony of accomplices abundantly and most remarkably sustain the 
witnesses who testified to the frauds, briberies, and corrupt practices upon which we 
have based our conclusions, and the impeaching witnesses are themselves most strikingly 
discredited by such facts and circumstances. Indeed, your committee do not hesitate to 
affirm that much of the evidence must be believed, because the corroborations which 
accompany and surround it make it impossible that it can be false. 


601 


THE LOUISIANA CASES, 1873-80. 

The sitting member insisted upon conducting much of the examination in his own 
behalf, and this privilege was accorded him. In the style of his questions and the con¬ 
duct of his cause he of ten exhibited most striking corroboration of the witnesses who were 
testifying of his guilt. The corroborations brought out by himself not only occurred in 
his cross-examinations of the witnesses called by the memorialist, but also in his exam¬ 
inations of witnesses called by himself to impeach or contradict the witnesses of the 
memorialist. 

Your committee are unable to see how an impartial legal mind can read the evidence 
taken and doubt the guilt of the sitting member upon every charge which has been made 
against him, notwithstanding so many of the witnesses must be admitted to be disrep¬ 
utable. 

But the sitting member, through his very able counsel, also insisted, with great ear¬ 
nestness and skill before your committee, that the Senate at a former session having, 
“after and upon evidence going to the merits of the case,” declared that Kellogg was 
“upon the merits of the case entitled to the seat,” this decision is final and conclusive, 
and cannot now be re-examined and reversed. This was the first and chief position on 
which the title of the sitting member was made to rest. Your committee have fully 
considered the question thus presented, and cannot doubt the correctness of the conclu¬ 
sions at which they have arrived. 

Stated in the light of the facts now known and herewith reported to the Senate, this 
position would read thus: That though the sitting member was not, in fact, chosen by 
the legislature of Louisiana; and though the body of men alleged to have elected him 
was assembled through fraud, was held together by force, and was controlled by bribery 
and corruption, and all this was accomplished by a conspiracy to defraud the State and 
people of Louisiana, of which conspiracy the sittiug member was himself the chief, yet, 
the Senate having decided in ignorance and by the suppression of these facts that the 
sitting member was entitled on the merits to the seat, the Senate is compelled to allow 
him to retain the seat after full knowledge that every fact which was assumed to exist 
when he was admitted is and was false and untrue. The reply to such a position is suffi¬ 
ciently furnished in the statement of the position itself. But your committee will not 
rest the argument here, and will consider it in the light of precedent and law. Counsel 
for the sitting member says: 

“ If, therefore, this committee and the Senate shall set aside this judgment on the 
merits, it will present to the country and the world a spectacle not seen before in the 
century of our national existence just closed.” 

We might justly reply to this that this case, in the facts now proven, already presents 
to the country and the world a spectacle not before seen in this century or any previous 
century of this or any other nation. We trust such a spectacle will never again be pre¬ 
sented, and that it may not be it ought to be now condemned by all men and especially 
by this Senate. If it shall be understood that seats once procured in this body by any 
means however false and fraudulent which bad men may employ cannot be taken away, 
this Senate may soon be largely composed of members not chosen by the legislatures of 
the States. Successful frauds will displace the positive requisition of the Constitution 
in the elections of Senators. A case without precedent cannot be decided by precedent. 
Fraud has certainly become a powerful agent in our politics, but we are not willing to 
admit it has yet become the supreme law above review and beyond remedy. 

But while no case like this was ever before presented for decision, yet principles have 
been announced in other cases which will furnish some guide to a proper determination 
of this question. 

In the case of Bright and Fitch, in the Thirty-fifth Congress, the rehearing asked was 
refused because ‘ ‘ all the facts and questions of law involved were as fully known and 
presented to the Senate on the former hearing as they were then presented in the me¬ 
morial of the legislature asking a rehearing. ” It was held that in such a case the judg¬ 
ment first rendered by the Senate “was final, and precluded further inquiry into the 
subject.” 

In the Butler and Corbin case, in the Forty-fifth Congress, the report of the minority 
of the Committee on Privileges and Elections correctly stated that no allegation was 
made “that testimony was before excluded which ought to have been admitted, or that 
testimony was admitted which ought to have been excluded; no request by either party 
to produce testimony had been denied, and no pretense that testimony then offered and 
excluded can now be produced. The jurisdiction is the same; the parties are the same; 
the subject-matter of contest is the same; the facts are the same, and the questions of 
law are the same.” The report further said: “If, on the former hearing, Mr. Corbin 
had been denied the privilege of introducing material facts which he offered to produce; 
if he presented material facts now which were then unknown; if all the facts and ques¬ 
tions of law now known and presented were not then as fully known and presented, the 
undersigned will not undertake to say his petition for a rehearing ought not, in justice 


602 


SENATE ELECTION CASES. 


and right, to be gravely heard and considered on the merits. ” The Senate adoped these 
views, though it is a significant fact that a large and intelligent minority of the Senate 
voted to unseat Mr. Butler and to admit Mr. Corbin, when not a single new fact or ques¬ 
tion of law had been presented or offered. 

Your committee freely admit that a decision rendered on the merits ought not to be 
afterwards reviewed and reversed on light or even doubtful grounds. In the courts the 
familiar rule is that new evidence to authorize a reversal ‘ ‘ ought to be material and 
such as would probably produce a different result. ’ ’ In this case your committee are 
willing to apply a much stronger test, though there is no reason why a stronger should 
be required. Let us adopt and apply the rule so strongly and forcibly expounded by a 
distinguished member of this Senate in the following language: 

“The Senate would do manifest injustice were it hastily and without the most plain 
and most manifest reason to reverse a decision that had been made seating a Senator on 
this floor. The case must be extremely strong that would justify such a proceeding. 
All that I am free to admit, but to say that the technical rule of res adjudicata that ap¬ 
plies to courts of justice applies in this chamber on a question of this kind is to confound 
all distinctions and to disregard all the laws of this body.” (Congressional Becord of 
May 7, page 24.) 

Let us now apply this rigid rule to the present case: 

1. On the former hearing not a single witness was examined. Some admissions were 
made by the parties, and some reports of investigations by Congressional committees 
not on the issues involved in this contest ‘ ‘ were agreed to be considered in evidence as 
far as they were pertinent.” This was done only to narrow the field of investigation. 

On this hearing nearly one hundred and fifty witnesses have been examined, making 
over 1,200 printed pages of testimony of the most material and controlling character. 

2. On the former hearing the memorialist begged and pleaded for the privilege of hav¬ 
ing witnesses called and examined on five points not covered by the admissions and re¬ 
ports above referred to, and by which witnesses he alleged he could prove, among other 
things, the direct personal complicity of the sitting member in glaring frauds in the pre¬ 
tended legislature which elected him. All these appeals were refused by the majority 
of the committee, although an investigation had been previously ordered by the Senate 
and resolved upon by the committee, and the investigation was suddenly closed against 
the protest of the memorialist and a minority of the committee. 

On the present hearing the witnesses have been examined, and the complicity of the 
sitting member in the frauds alleged has been most convincingly established. 

3. On the former hearing there was no evidence and no opportunity to produce evi¬ 
dence showing conspiracies, briberies, and other corruptions by the sitting member to 
procure a fraudulent legislature, and to control the members thereof in his own election 
to the Senate. 

On the present hearing such conspiracies, briberies, and corruptions of the most start¬ 
ling, unblushing, and unparalleled character have been positively testified to by numerous 
witnesses, and these briberies and corruptions have been shown to extend to the witnesses 
in the case in the very face of the Senate. 

Your committee could multiply the features of contrast between the former and the 
present hearing in this case, but we forbear. Under the most technical rule of res adju¬ 
dicata there is not a court in civilized Christendom which would hesitate to review and 
reverse a judgment so utterly unauthorized and unjust; and surely it cannot be con¬ 
tended that the Senate can have less power than a court to annul such a decision. 

Conceding then, for the argument, that the Senate in passing upon contests for seats 
in this body acts as a court, and that the technical rule of res adjudicata applies to de¬ 
cisions rendered in such cases, do courts not re-examine, review, and reverse their decisions? 
Are not appeals, writs of error, motions for new trials, and bills of review familiar to us 
all ? The Senate, in considering such cases in the first instance, is not bound by the 
forms of proceedings in the courts. We have no declarations, no complaints, no bills in 
chancery, nor pleas, demurrers, answers, and joinders of issue in the Senate. If the 
Senate proceeds to original judgment without the pleading known to the courts, may 
not the Senate also proceed to review, re-examine, and reverse such judgments when good 
cause is shown, without resorting to the processes which in such cases are known to the 
courts ? If the Senate is a court, then if the facts in a given case are such as would re¬ 
quire the vacation of a judgment if rendered by a court, surely the Senate would also 
be authorized to vacate such judgment. The exclusion by the court of material testi¬ 
mony on the first hearing, the discovery of new and material evidence since the hearing, 
the existence of frauds, forgeries, briberies, and perjuries in procuring the first judgment 
are all well-known grounds on either one of which courts, by some of the methods of 
proceeding, will review and reverse such judgments. All these grounds are shown by 
the evidence and the records of this Senate to exist in extraordinary clearness, force and 
repeated abundance in the case we are now considering. Is the Senate, by being likened 
to a court, to be bound by decisions which a court would rigorously vacate and annul ? 


603 


THE LOUISIANA CASES, 1873-80. 

But the attempt to apply to the Senate the technical rule of res adjudicata as it obtains 
in the courts is a palpable sophistry and not an argument. In the correct and forcible 
language ol Senator Thurman, before quoted, “ it confounds all distinctions and disre¬ 
gards all the rules of this body.” 

In cases where the contestants claim to represent the same State government, and the 
issue between them is one of informality or irregularity, or non-compliance with statu¬ 
tory provisions, there would be some show of reason for the application of this doctrine. 
In such cases there ought to be an end of litigation in the Senate as well as in the courts. 
A wise policy would certainly require in such cases the principle if not the rule of res 
adjudicata. It is to such cases the authorities cited by the eminent counsel for the sit¬ 
ting member were intended to apply. 

^ But the questions involved in the present case rise immeasurably above such issues. 
They are not questions of regularity, but of authority. They are not questions of dis¬ 
cretion, but ot duty. They exist more between the State of Louisiana and this Senate 
than between the contestants. In their nature these questions are not merely judicial, 
but political in the highest sense. 

The Constitution says: 

The Senate of the United States shall be composed of two Senators from each State, 
chosen by the legislature thereof. ” 

Can a man sit as a member of this Senate who was not chosen by the legislature of 
his State? But suppose, in ignorance of the fact that he was not so chosen, the Senate is 
induced to declare him entitled to the seat “ on the merits,” after investigation; does 
such erroneous decision supplant the Constitution and give him a title after the mistake 
becomes known ? 

Let ns suppose an impossible case: Suppose a majority of this Senate should for any 
purpose, partisan or otherwise, seat a man in this body who they knew was not chosen 
by the legislature of his State, would any future Senate be compelled to continue such 
person in the seat? Would not such continuance be as criminal as the original admis¬ 
sion ? Will any man pretend that a plain constitutional provision can be superseded by 
a mistaken decision of this Senate ? If the sitting member was not chosen by the legis¬ 
lature of Louisiana, every hour he sits on this floor after that fact is known is a violation 
of the Constitution. It is a question of obedience to the Constitution. Can any person 
estop this Senate, can the Senate estop itself, from obeying the Constitution ? Can the 
Senate estop itself from inquiring toties quoties whether he was chosen by the legislature? 
Cau it be so estopped by its own erroneous decision on a former hearing? 

In cases like the one now before us, your committee do not hesitate to adopt the lan¬ 
guage employed by those eminent constitutional lawyers, Mr. Collamer, of Vermont, and 
Mr. Trumbull, of Illinois, in the Fitch and Bright case in 1859. They said: 

“The power of the Senate to judge of the election and qualification of its own mem¬ 
bers is unlimited and abiding. It is not exhausted in any particular case by once adju¬ 
dicating the same, as the power of re-examination and correction of error and mistake, 
incident to all judicial tribunals and proceedings, remains with theSenatein this respect, 
as well to do j ustice to itself as to the States represented or to the persons claiming or 
holding seats. Such an abiding power must exist to purge the body from intruders, oth¬ 
erwise any one might retain his seat who had once wrongly procured a decision of the 
Senate in his favor by fraud or falsehood, or even by papers forged or fabricated.” 

In the light of the evidence now before the Senate the sitting member was admitted 
by a wrongly procured decision of the Senate in his favor by means quite as criminal as 
those stated in the last paragraph quoted, since the means employed by him to secure 
his pretended election included conspiracies, briberies, and perjuries often repeated, and 
the knowledge of which was vigorously suppressed on the former hearing. He was not 
chosen by the legislature of Louisiana. He was chosen by a body of men who conspired 
with him to defeat the will of the State, and who excluded by force the members elected 
by the people in order that the conspirators might be enabled to accomplish their work. 

The primary authority to determine what is the legislature of a State is and must be 
the State herself. When the State determines that question for herself it is determined 
for all the world. In case there are two governments, or two bodies each claiming to be 
the true government or the true legislature of the State, and the State has not determined 
the controversy, the duty may devolve upon others, and in this case upon this Senate 
to adjudge that question pro hac vice. 

In January, 1877, a portion of the members elected by the people united with others 
not elected and seized the State -house by co-operation with the sitting member, who was 
then acting as governor, were barricaded in the building, which was surrounded with t roops, 
and refused to permit other elected members to be admitted into thebuilding. The bar¬ 
ricaded persons called themselves the legislature, and the excluded members met in St. 
Patrick’s Hall and called themselves the legislature. This was the condition of things 
when the sitting member presented his credentials to this Senate and asked to be ad- 


804 


SENATE ELECTION CASES. 


imtted to his seat on this floor. lie was not admitted, but his credentials were referred 
to the Committee on Privileges and Elections. Before the committee took any action 
whatever the issue thus raised between these two rival bodies was settled by the State. 
It was decided that the body which assembled and organized in St. Patrick’s Hail was 
the true legislature of the State. This decision was accepted by all the people of Loui¬ 
siana and by all the departments of her government, by the President and House of 
Representatives, and by the circuit and district courts of the United States, and finally 
by all the persons who composed the body which seized the State-house. The latter, which 
had been known as the Packard legislature, disbanded, leaving not a resolution, or act, 
or other thing which has ever been recognized as authoritative, or which has been claimed 
to be valid, save only the pretended election of the sitting member to this Senate; and 
this single act has been recognized only by this Senate. The former body, which had 
been known as the Nicholls legislature, performed all the functions of a legislature from 
the beginning, passed laws which are obeyed by all the people and enforced by all the 
courts. All the persons who had been elected left the pretended Packard legislature and 
took their seats in the Nicholls legislature, and those who had not been elected admitted 
they were not elected, without even a contest, and went home or into the custom-house 
or some other Federal office. 

The regular legislature thus organized, composed of all the members elected by the 
people, chose the memorialist to the seat he is now claiming. The election was free, regu¬ 
lar, legal, and without taint of corruption of any kind, and his credentials are in due 
form. Of a legislature which was composed, when full, senate and house, of one hun¬ 
dred and fifty-six members, the memorialist received over 140 votes. 

Since the former hearing in this case, the supreme court of Louisiana has also decided 
that the officers of the Packard government had, in January, 1877, no official status, and 
that no acts performed by them at that time, though purporting to be performed virtute 
officii, could have the force and effect of official acts.—(State ex rel. Lipo vs. Peck, 30 An¬ 
nual Reports, 280.) 

And in addition to all this, the evidence now taken shows that the Packard legisla¬ 
ture, which pretended to elect the sitting member, was, in fact as well as in law, not a 
legislature, but was a body of men assembled by fraud, held together by force and con¬ 
trolled by bribery; with the aid and in the interest of the sitting member. 

Thus, the facts, the law, the integrity of this Senate, and the voice of a too long de¬ 
frauded State of this Union unite in demanding the passage of the following resolutions 
which your committee now submit for adoption by the Senate, to wit: 

1. Resolved , That according to the evidence now known to the Senate, William Pitt 
Kellogg was not chosen by the legislature of Louisiana to the seat in the Senate for the 
term beginning on the 4th day of March, 1877, and is not entitled to sit in the same. 

2. Resolved , That Henry M. Spofford was chosen by the legislature of Louisiana to the 
seat in the Senate for the term beginning on the 4th day of March, 1877, and that he be 
admitted to the same on taking the oath prescribed by law. 

VIEWS OF THE MINOKITY. 

The undersigned, a minority of the Committee of Privileges and Elections, to whom 
was referred the memorial of Henry M. Spofford, claiming the seat now occupied by 
William Pitt Kellogg, submit the following as their views: 

On the 30th day of November, 1877, the Senate passed the following resolutions: 

“ Resolved , That William Pitt Kellogg is, upon the merits of the case, entitled to a 
seat in the Senate of the United States from the State of Louisiana for the term of six 
years commencing on the 4th of March, 1877, and that he be admitted thereto on taking 
the proper oath. 

“ Resolved, That Henry M. Spofford is not entitled to a seat in the Senate of the Uni¬ 
ted States. ’ ’ 

The party majority in the Senate has changed since Mr. Kellogg took the oath of office 
in pursuance of the above resolution. Nothing else has changed. The facts which the 
Senate considered and determined were in existence then as now. It is sought, by mere 
superiority of numbers, for the first time to thrust a Senator from the seat which he 
holds by virtue of the express and deliberate final judgment of the Senate. 

The act which is demanded of this party majority would be, in our judgment, a great 
public crime. It will be, if consummated, one of the great political crimes in American 
history, to be classed with the rebellion, with the attempt to take possession by fraud of 
the State government in Maine, and with the overthrow of State governments in the 
South, of which it is the fitting sequence. Political parties have too often been led by 
partisan zeal into measures which a sober judgment might disapprove, but they have ever 
respected the constitution of the Senate. 

The men whose professions of returning loyalty to the Constitution have been trusted 


605 


THE LOUISIANA CASES, 1873-80. 

by the generous confidence of the American people are now to give evidence of the sin¬ 
cerity of their vows. The people will thoroughly understand this matter, and will not 
be likely to be deceived again. 

We do not think proper to enter here upon a discussion of the evidence by which the 
claimant of Mr. Kellogg’s seat seeks to establish charges affecting the integrity of that 
Senator. Such evidence can be found in abundance in the slums of great cities. It is 
not fit to be trusted in cases affecting the smallest amount of property, much less the 
honor of an eminent citizen, or the title to an object of so much desire as a seat in the 
Senate. This evidence is not only unworthy of respect or credit, but it is in many in¬ 
stances wholly irreconcilable with undisputed facts, and Mr. Kellogg has met and over¬ 
thrown it at every point. 

GEORGE F. HOAR. 

ANGUS CAMERON. 

JOHN A. LOGAN. 

Wednesday, March 31, 1880. 

On motion by Mr. Logan, 

Ordered , That the evidence taken by the Committee on Privileges and Elections in the 
investigation of the allegations set forth in the memorial of Henry M. Spofford, claiming 
to be Senator from the State of Louisiana, be recommitted to said committee for the pur¬ 
pose of revising and correcting said evidence. 

On motion by Mr. Logan, 

Ordered , That the report of the evidence already printed be withdrawn from further 
distribution. 

[The debate is found on pages 1985-1988 of the Congressional Record, vol. x, part 2.] 

Thursday, April 22, 1880. 

On motion by Mr. Saulsbury, the Senate proceeded to consider the resolutions reported 
by Mr. Hill, of Georgia, March 22,1880, from the Committee on Privileges and Elections, 
declaring that William Pitt Kellogg was not elected, and that Henry M. Spofford was 
elected, a Senator of the United States from the State of Louisiana for the term begin¬ 
ning March 4, 1877. 

Friday, April 23, 1880. 

The Senate resumed, &c. 

[The debate is found on pages 2676-2683 of the Congressional Record, vol. x, part 3.] 

Monday, April 26, 1880. 

The Senate resumed, &c. 

[The debate is found on pages 2735-2754 of the Congressional Record, vol. x, part 3.] 

Tuesday, April 27, 1880. 

Mr. Hoar submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

‘ ‘ Resolved , That the proceedings* of the Committee on Privileges and Elections in the 
contested-election case of Spofford vs. Kellogg, in the months of October and November, 
1877, be printed for the use of the Senate.” 

Friday, April 30, 1880. 

The Senate resumed, &c. 

[The debate is found on pages 2909-2911 of the Congressional Record, vol. x, part 3.] 

Monday. May 3, 1880. 

The Senate resumed, &c. 

[The debate is found on pages 2952-2960 of the Congressional Record, vol. x, part 3.] 

Tuesday, May 4,1880. 

The Senate resumed, &c. 

[The debate is found on pages 2972-2982 of the Congressional Record, vol. x, part 3.] 

Friday, May 7, 1880. 

The President pro tempore announced that the morning hour had expired, and called 
up the unfinished business of the Senate at its adjournment yesterday, viz, the resolu- 
lntions reported by Mr. Hill, of Georgia, from the Committee on Privileges and Elections, 
March 22, 1880, declaring that William P. Kellogg was not elected, and that Henry M. 


* Printed with Report No. 388, Senate Reports, 2d sess. 46th Cong., vol. 4. 




606 


SENATE ELECTION CASES. 


Spofford was elected, a Senator of the United States from the State of Louisiana for the 
term beginning March 4,1877; and the Senate resumed the consideration of the said reso¬ 
lutions. 

After debate, 

On motion by Mr. Hoar to amend the resolutions as follows, viz: Strike out all after 
the word “resolved” where it first appears, and insert the following: 

“That in the judgment of the Senate the matters reported by the Committee on Priv¬ 
ileges and Elections at the present session respecting the right to the seat in this body 
now held by William Pitt Kellogg and claimed by Henry M. Spofford are not sufficient 
to justify the reopening of the decision of the Senate, pronounced in its resolution adopted 
on the 30th day of November, A. D. 1877, that said Kellogg was, upon the merits of 
the case, lawfully entitled to a seat in the Senate of the United States from the State of 
Louisiana for the term of six years commencing on the 4th day of March, A. D. 1877, 
and that said Spofford was not entitled to a seat in the Senate of the United States,” 

On motion by Mr. Conkling(at 5 o’clock and 10 minutes p. m.), the Senate adjourned. 

[The debate is found on pages 3108-3116 of the Congressional Record, vol. x, part 4.] 


Monday, May 10, 1880. 

The Senate resumed, &c. 

The question being on the amendment proposed by Mr. Hoar, 

After debate, 

Ordered , That the further consideration thereof be postponed to to-morrow. 

[The debate is found on pages 3161-3166 of the Congressional Record, vol. x, part 4.] 

Tuesday, May 11, 1880. 

The Senate resumed, &c. 

The question being on the amendment proposed by Mr. Hoar, 

Pending debate, 

On motion by Mr. Eaton, the Senate proceeded to the consideration of executive busi¬ 
ness. 

[The debate is found on pages 3232-3240 of the Congressional Record, vol. x, part 4.] 

Wednesday, May 12, 1880. 

The Senate resumed, &c. 

The question being on the amendment proposed by Mr. Hoar. 

[The debate is found on pages 3270-3277 of the Congressional Record, vol. x, part 4. ] 

Thursday, May 13, 1880. 

The Senate resumed, &c. 

The question being on the amendment proposed by Mr. Hoar. 

[The debate is found on pages 3313-3322 of the Congressional Record, vol. x, part 4.] 


Friday, May 14, 1880. 

The Senate proceeded, &c. 

The question being on the amendment proposed by Mr. Hoar. 

[The debate is found on pages 3362-3367 of the Congressional Record, vol. x, part 4. ] 


Tuesday, May 18, 1880. 

The Senate proceeded, &c. 

The question being on the amendment proposed by Mr. Hoar. 

[The debate is found on pages 3456-3462 of the Congressional Record, vol. x, part 4.] 

Wednesday. May 19, 1880. 

The Senate proceeded, &c. 

The question being on the amendment proposed by Mr. Hoar. 

[The debate is found on pages 3511-3515 of the Congressional Record, vol. x, part 4.] 


The Senate resumed, &c. 

The question being on the amendment proposed 
[The debate is found on pages 3551-3565 of the 


Thursday, May 20, 
by Mr. Hoar. 

Congressional Record, vol. x, 


1880. 


part 4.] 


The Senate resumed, &c. 
[There was no debate. ] 


Saturday, June 5, 1880. 


THE LOUISIANA CASES, 1873-80. 


607 


Monday, June 7, 1880. 

The Senate resumed, &c. 

The question being on the amendment proposed by Mr. Hoar. 

[The debate is found on pages 4238-4244 of the Congressional Record, vol. x, part 5. ] 

Friday, June 11, 1880. 

The Senate resumed, &c. 

The question being on the amendment proposed by Mr. Hoar, 

After debate, 

Ordered , That the further consideration of the resolutions be postponed to to-morrow. 
On motion by Mr. Williams to postpone the present and all prior orders, it was deter¬ 
mined in the affirmative—yeas 28, nays 16. 

[The debate is found on pages 4414-4431 of the Congressional Record, vol. x, part 5.] 


[Third session of the Forty-sixth Congress.] 

CREDENTIALS OF THOMAS C. MANNING. 

Tuesday, December 7, 1880. 

Mr. Jonas presented the credentials of Thomas Courtland Manning, appointed a Sen¬ 
ator by the governor of Louisiana to fill the vacancy occasioned by the death of Henry 
M. Spofford, who claimed to be elected Senator from that State; which were referred to 
the Committee on Privileges and Elections. 

COMPENSATION TO MR. SPOFFORD’S REPRESENTATIVES. 

Tuesday, February 22, 1881. 

Mr. Hill, of Georgia, from the Committee on Privileges and Elections, reported the 
following resolution: 

‘ 1 Resolved, That the Secretary of the Senate be, and he is hereby, authorized and directed 
to pay out of the ‘ miscellaneous items ’ of the contingent fund of the Senate, to the legal 
representatives of the estate of the late Henry M. Spofford, contestant of a seat in the 
Senate from the State of Louisiana, a sum equal to the compensation, without mileage, 
of a Senator from the 4th day of March, 1877, to the 20th day of August, 1880, inclu¬ 
sive.’’ 

The Senate proceeded by unanimous consent to consider the said resolution as in Com¬ 
mittee of the Whole; and no amendment being made, it was reported to the Senate. 

Ordered, That it be engrossed and read a third time. 

The said resolution was read the third times, by unanimous consent. 

Resolved, That the Senate agree thereto. 

[The debate is found on pages 1911,1912 of the Congressional Record, vol. xi, part 3.] 


[First session of the Forty-seventh Congress.] 

REIMBURSEMENT OF MR. KELLOGG’S EXPENSES. 

Friday, March 17,1882. 

Mr. Hoar, from the Committee on Privileges and Elections, reported the following res¬ 
olution; which was read the first and second times, by unanimous consent: 

11 Resolved, That there be paid out of the contingent fund of the Senate the sum of 
$9,550 to William Pitt Kellogg, a Senator from the State of Louisiana, in reimburse¬ 
ment of expenses necessarily incurred by him in defense of his title to his seat.” 

Monday, March 20,1882, 

On motion by Mr. Hoar, the Senate proceeded to consider, as in Committee of the 
Whole, the resolution reported by him from the Committee on Privileges and Elections 
on the 17th instant, to pay W. P. Kellogg the expenses incurred by him in defending 
his title to a seat in the Senate; and no amendment being made, it was reported to the 
Senate. 

Ordered, That it be engrossed and read a third time. 

The said resolution was read the third time. 

Resolved, That the Senate agree thereto, 


608 


SENATE ELECTION CASES. 


COMPENSATION OF MR. MANNING. 

Wednesday, July 19,1882. 

Mr. Vance, from the Committee on Privileges and Elections, reported the following 
resolution; which was read the first and second times, by unanimous consent: 

“Resolved , That there be paid out of the contingent fund of the Senate to Hon. Thomas 
C. Manning, who was appointed United States Senator from Louisiana by the governor 
thereof to fill the vacancy caused by the death of H. M. Spofford, the sum of $1,000, in 
full compensation of all expenses incurred in endeavoring to obtain the seat to which 
his credentials accredited him. ’ ’ 


Monday, August 7, 1882. 

On motion by Mr. Kellogg, the Senate proceeded to consider, as in Committee of the 
Whole, the resolution reported by Mr. Vance July 19, 1882, to pay to-Thomas C. Manning, 
appointed a Senator from the State of Louisiana to fill the vacancy caused by the death 
of H. M. Spofford, the sum of $1,000; and no amendment being made, it was reported 
to the Senate. 

Ordered , That it be engrossed and read a third time. 

The said resolution was read the third time. 

Resolved , That the Senate agree thereto. 


LEWIS VS. BOGY. 


609 


[Special session of Senate, March, 1873.] 

LEWIS Y. BOGY, 

Senator from Missouri from March 4, 1873, till his death , September 20, 

1877. 

March 4, 1873, Mr. Bogy took his seat, having been elected for the term of six years from that 
date. March 17, the Vice-President laid before the Senate a memorial of members of the legislature, 
accompanied by a report of a select committee of the legislature appointed to investigate charges 
of bribery and corruption in the Senatorial election, praying for an investigation by the Senate of 
said charges. The memorial was referred to the Committee on Privileges and Elections. March 
25, the committee reported that the memorial set forth that the investigation by the committee of 
the legislature was imperfect, and that if it had been full and fair, evidence would have been pro¬ 
duced showing that there was corruption in Mr. Bogy’s election; that the memorial did not state 
the character of the new evidence that could be produced, and that the Senate would not be justi¬ 
fied in instituting an examination ; that such a proceeding was of a grave character and should not 
be set on foot without such a statement of the evidence that could probably be produced as would 
appear to make it the duty of the Senate to proceed to an investigation. The committee reported 
a resolution that it be discharged from the further consideration of the memorial; which was 
agreed to. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from the Senate Journal, 3d sess. 42d Cong, (special session, March, 1873), and the report of 
the committee from Senate Reports, 3d sess. 42d Cong. (No. 1, special session, March, 1873). 

There were no debates. 


Tuesday, February 25, 1873. 

Mr. Schurz presented the credentials of Lewis V. Bogy, elected a Senator in Congress 
by the legislature of the State of Missouri for the term of six years commencing on the 
4th day of March, 1873; which were read. 

Ordered , That they lie on the table. 


Friday, February 28, 1873. 

The Vice-President laid before the Senate a resolution of the legislature of Missouri 
exonerating Hon. Lewis V. Bogy, Senator-elect from that State, from any suspicion of 
having used corrupt means to secure his election to the United States Senate. 

Ordered , That it lie on the table and be printed. 


Tuesday, March 4, 1873. 

The credentials of Lewis V. Bogy having been heretofore presented to the Senate, the 
oaths prescribed by law were administered to him by the Vice-President and he took his 
seat in the Senate. 


Monday, March 17, 1873. 

The Vice-President laid before the Senate the memorial of members of the legislature 
of the State of Missouri, accompanied by a report of a select committee of said legislature 
appointed to investigate charges of bribery and corruption in the recent Senatorial elec¬ 
tion in that State, and the views of a minority of the committee therewith, praying that 
certain charges of bribery and corruption against Lewis V. Bogy, recently elected a Sen¬ 
ator from the State of Missouri, may be promptly and fully investigated by the Senate. 

Ordered , That it be referred to the Committee on Privileges and Elections. 

Tuesday, March 25, 1873. 

Mr. Morton, from the Committee on Privileges and Elections, to whom was referred 
the memorial of members of the legislature of the State of Missouri, praying that an in¬ 
vestigation be made by the Senate of certain charges of bribery and corruption against 
Lewis V. Bogy in his recent election as Senator from that State, submitted a report (No. 
1) accompanied by the following resolution: 

“ Resolved, That the Committee on Privileges and Elections be discharged from the 
further consideration of the memorial of members of the legislature ot the State of 
Missouri, together with the evidence accompanying the same, touching the allegations 
of bribery and corruption in the election of Lewis V. Bogy to the Senate of the United 
States ^ ^ 

The Senate proceeded to consider the said resolution; and the resolution was agreed to. 

S. Doc. 11-39 



610 


SENATE ELECTION CASES. 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Morton (chairman), Carpenter, Logan, Alcorn, 
Anthony, Mitchell, Bayard, and Hamilton of Maryland.] 

In the Senate of the United States. 

March 25,1873.—Ordered to be printed. 

Mr. Morton, from the Committee on Privileges and Elections, submitted the following 
report: 

The Committee on Privileges and Elections, to whom was referred the memorial of 
thirty-seven members of the legislature of Missouri in regard to the election of Lewis V. 
Bogy to the Senate of the United States from that State, have had the same under con¬ 
sideration and submit the following report: 

The memorial sets forth that the recent examination by a committee appointed by the 
house of representatives of the legislature of Missouri, touching the currupt use of money 
in the election of Mr. Bogy, was imperfect; that it was not full and fair, and in the opin¬ 
ion of the memorialists, if the investigation had been conducted with more vigor and 
with a purpose of revealing the real facts of the case, other and more important evidence 
would have been produced showing that there was corruption in Mr. Bogy’s election. 

The memorial, however, does not state what additional facts can be proven, nor indi¬ 
cate with any certainty the character of the new evidence that may be produced. 

The committee understand that the only duty which they have upon this reference is 
to report to the Senate whether the memorial presents such facts as would justify the 
Senate in instituting an examination in regard to the election of Mr. Bogy, and are of 
the opinion that it does not. Such a proceeding is of a grave character, and should not 
be set on foot without such a statement of the evidence that could probably be produced 
as would appear to make it the duty of the Senate to proceed to an investigation. 

The evidence taken by the committee of the legislature of Missouri also accompanies 
the memorial, and has been examined by the committee. It is not the province of the 
committee upon this reference to inquire whether the judgment pronounced by the house 
of representatives of the Missouri legislature upon this evidence was correct; but they 
express the opinion that the evidence is not of a character to require of the Senate an 
investigation. 

The committee therefore ask to be discharged from the further consideration of the 
memorial and the evidence touching the election of Lewis V. Bogy to the Senate of the 
United States. 


SYKES YS. SPENCER. 


611 


[Special session of Senate, March, 1873; and first sessions of the Forty-third and Forty - 

fonrth Congresses.] 

FRANCIS W. SYKES vs. GEORGE E. SPENCER; and GEORGE 

E. SPENCER, 

of Alabama. 


Decembci' 13,1872, the credentials of Mr. Spencer, elected for the term beginning March 4,1873, 
were presented, and February 28, 1873, a memorial of Mr. Sykes claiming to have been elected for 
the same term was presented. Mr. Spencer was admitted, after debate, March 7. December 8, the 
memorial of Mr. Sykes was referred to the Committee on Privileges and Elections. April 20,1874, 
the committee reported that at the time of the elections there were in Alabama two bodies, each 
claiming to be the legislature, one known as the court-house legislature, which had elected Mr. 
Spencer, December 3, 1872, the other known as the State-house legislature, which had chosen Mr. 
Sykes, December 10,1872 ; that at the time of the election of Mr. Spencer there were eight or nine 
members of the State-house legislature having regular certificates of election, but “ who are con¬ 
ceded not to have been elected ” ; that persons claiming the seats of these eight or nine members, 
but having no certificates of election, were in the court-house legislature ; that the question to be 
decided was whether that legislature composed of a quorum of the persons actually elected should 
be regarded as the legislature of the State, or whether that legislature the quorum of which de¬ 
pended upon members not actually elected, but having regular certificates of election, should be 
regarded as the legal legislature; that the State-house legislature was the legislature in form, and 
the court-house legislature the legislature in fact; that it would not be competent for the Senate to 
inquire as to the right of individual members to sit in a legislature that is conceded to have a quo¬ 
rum in both houses of legally elected members ; but that the Senate must in this case inquire into 
the rights to hold seats of the eight or nine members whose rights to seats were disputed, in order 
to determine which of the two bodies was the legal legislature; and that in such inquiry the Sen¬ 
ate should not look merely to the evidence of the fact, but go back to the fact itself and determine 
who of those claiming seats were in fact elected; that the persons claiming to be the legislature 
who voted for Mr. Spencer constituted a quorum of the members actually elected. The committee 
asked to be discharged from the further consideration of the subject. There was a minority report. 
May 28, the Senate resolved that the committee be discharged from further consideration of the 
subject. A favorable report was made by the committee on a resolution to allow Mr. Sykes com¬ 
pensation and mileage, but no further action was taken by the Senate. 

December 16. 1875, Mr. Spencer submitted a resolution that the committee be instructed to in¬ 
quire whether in the election of Mr. Spencer corrupt means were used to secure his election. A 
report of a joint committee of the Alabama legislature on the election, and a memorial of the 
legislature that the seat held by Mr. Spencer be declared vacant, were also referred to the commit¬ 
tee. May 20, 1876, the committee reported that the question whether Mr. Spencer was elected by 
the lawful legislature, raised in the memorial referred to, must be treated as res adjudicata; that 
upon the question whether Mr. Spencer or his friends had been guilty of bribery or corruption, the 
committee had made diligent inquiry, and had found that the charges were not proven; that no 
witness testified that Mr. Spencer or his friends had given or offered to give money or anything of 
value in consideration of votes; that only hearsay evidence to this effect was offered, which had 
been rejected by the committee. The committee reported the testimony taken and asked to be 
discharged from the further consideration of the subject. No further action was taken by the Sen¬ 
ate. March 3, 1885, the Senate resolved that there be paid to Mr. Spencer the amount actually and 
necessarily expended by him in maintaining his title to his seat. 

The history of the ease here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journals, 3d sess. 42d Cong., and 1st sess. 43d and 44th Congs., and the reports 
of the committee, references to which are given in foot-notes. 

Special references to the debates of each day are inserted below. 

Friday, December 13, 1872. 

Mr. Morton presented the credentials of George E. Spencer, elected a Senator by the 
legislature of Alabama for the term of six years commencing March 4,1873; which were 
read. 

Ordered, That they lie on the table. 

Friday, February 28, 1873. 

Mr. Goldthwaite presented a memorial* of Francis W. Sykes, claiming a seat in the 
Senate as Senator from the State of Alabama for the term of six years commencing March 
4, 1873. 

Ordered, That it lie on the table and be printed. 


[Special session of Senate, March, 1873.] 

Thursday, March 6, 1873. 

Mr. George E. Spencer, whose credentials had been heretofore presented to the Senate 


♦Found in Senate Miscellaneous, 3d sess. 42d Cong., No. 94. 




612 


SENATE ELECTION CASES. 


as a Senator from the State of Alabama, advanced to the Vice-President’s chaii to take 
the oath of office, 

When 

Mr. Bayard rose and objected to the oaths being administered to Mr. Spencer; and, 

On the question, Shall the oaths be administered to Mr. Spencer? 

After debate, 

On motion by Mr. Bayard that the further consideration thereof be postponed to 
to-morrow, 

After further debate, 

On motion by Mr. Hamlin, the Senate adjourned. 

[The debate is found on pages 3-19 of the Congressional Record, vol. i.] 

Friday, March 7, 1873. 

The Senate resumed the consideration of the question of administering the oaths of 
office to George E. Spencer as a Senator from the State of Alabama; and 

The question being on the motion submitted by Mr. Bayard that the further consid 
eration thereof be postponed to to-morrow, 

After debate, 

It was determined in the negative—yeas 24, nays 32. 

After further debate, 

On motion by Mr. Bayard to refer the credentials of Mr. Spencer, and the memorial of 
Francis W. Sykes, claiming the seat in question, to a select committee of five Senators, 
it was determined in the negative—yeas, 20, nays 38. 

On motion of Mr. Bayard, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Bayard, Bogy, Casserly, Cooper, Davis, 
Dennis, Fenton, Goldthwaite, Hamilton ol Maryland, Hamilton of Texas, Kelly, Mc- 
Creery, Merrimon, Norwood, Ransom, Saulsbury, Stevenson, Stockton, Thurman, and 
Tipton. 

Those who voted in the negative are Messrs. Alcorn, Allison, Ames, Boreman, Brown- 
low, Buckingham, Caldwell, Cameron, Chandler, Clayton, Conkling, Conover, Cragin, 
Dorsey, Ferry of Connecticut, Ferry of Michigan, Flanagan, Gilbert, Hamlin, Hitchcock, 
Howe, Ingalls, Jones, Lewis, Logan, Mitchell, Morrill of Vermont, Morton, Oglesby, 
Patterson, Pratt, Ramsey, Sargent, Stewart, Wadleigh, West, Windom, and Wright. 

So the motion was not agreed to. 

On motion by Mr. Thurman that the further consideration of the question be postponed 
until the committees of the Senate are organized, it was determined in the negative. 

After further debate, 

On the question, Shall the oaths of office be administered to Mr. Spencer? it was 
determined in the affirmative. 

Whereupon 

Mr. Spencer advanced to the chair, and the oaths of office having been administered to 
him by the Vice-President, he took his seat in the Senate. 

[The debate is found on pages 20-29 of the Congressional Record, vol. i.] 


[First session of the Forty-third Congress. ] 


Monday, December 8, 1873. 

Mr. Gordon submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

“ Resolved, That the memorial of Francis W. Sykes, claiming to be a Senator-elect from 
the State of Alabama, with accompanying documents, be referred to the Committee on 
Privileges and Elections, with power to send for persons and papers.” 


Monday, April 20,1874. 

Mr. Carpenter, from the Committee on Privileges and Elections, to whom was referred 
the memorial of Francis W. Sykes, claiming a seat in the Senate as Senator from the State 
of Alabama, submitted a report (No. 291), with a recommendation that the committee be 
discharged from the further consideration of the memorial. 

Mr. Saulsbury asked and obtained leave to submit the views of the minority of the 
Committee on Privileges and Elections on the foregoing memorial; which were ordered to 
be printed to accompany the report of the committee. 


SYKES YS. SPENCER. 


613 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Morton (chairman), Carpenter, Logan, Alcorn, An¬ 
thony, Mitchell, Wadleigh, Hamilton of Maryland, and Saulsbury.] 


In the Senate of the United States. 

April 20, 1874.—Ordered to be printed. 

Mr. Carpenter submitted the following report: 

^ The Committee on Privileges and Elections, to whom was referred the memorial of 
Francis W. Sykes, claiming to be Senator-elect from the State of Alabama, together with 
accompanying documents, respectfully submit the following report: 

Mr. Sykes claims the seat now held by Hon. George E. Spencer as Senator from the 
State of Alabama; and his claim is based upon the assertion that the body claiming to 
be the legislature of the State of Alabama which elected the said Spencer was not the 
rightful legislature of that State, but that another body of men was such legislature; 
and that the latter body, on the 10th day of December, A. D. 1872, duly elected the said 
Sykes to be the Senator of the United States for that State for the term of six years com¬ 
mencing on the 4th day of March, A. D. 1873. 

It is a fact that for some time after the day fixed by law for the organization of the 
legislature of that State, in 1872, there were two bodies, each claiming to be the legisla¬ 
ture of that State—one known as the State-house legislature, which pretended to elect 
Mr. Sykes, and the other known as the court-house legislature, which pretended to elect 
Mr. Spencer; and the question is, which of these two bodies ought to be considered the 
rightful legislature at that time? On the 3d day of December, 1872, the court-house 
legislature, so called, pretended to elect Mr. Spencer. The governor of the State certi¬ 
fied that Mr. Spencer had been duly elected on that day by the legislature of the State; 
and the Senate, upon that certificate, seated Mr. Spencer as a Senator for the term in 
question. The first question is, therefore, whether the body of men which pretended to 
elect Mr. Spencer can properly be regarded as the legislature of the State at the time of 
such pretended election. If so, Mr. Spencer’s election was valid, and, of course, if that 
be so, Mr. Sykes can have no right to the same seat during the same term. 

The general election in that State was held on the 5th day of November, 1872. The 
time fixed for the meeting of the legislature thereafter was on the 18th of November, 
1872. The constitution of the State provides, section 6, Article IY: “ The house of repre¬ 
sentatives, when assembled, shall choose a speaker and its other officers, and the senate 
shall choose a president, in the absence of the lieutenant-governor, and its other officers; 
each house shall judge of the qualifications, elections, and returns of its own members, 
but a contested election shall be determined in such manner as shall be directed by law. 
The president of the senate and the speaker of the house of representatives shall remain 
in office until their successors are elected and qualified. ’ ’ 

By Article VIII of the constit ution of Alabama, the house of representatives is declared 
to consist of one hundred members, apportioned among, and elected from, the counties 
of the State as directed in said article. The senate consists of thirty-three members, 
elected by the voters from the senatorial districts, as directed in said article, and these two 
bodies constitute the general assembly of the State, and in them, by section 1, Article I 
of the constitution, is vested the legislative power of the State. 

By section 38 of the revised code of Alabama, which was re-enacted and continued in 
force by an act approved July 29, 1868, the general assembly is required to convene in 
the city of Montgomery. 

It is provided by the act to regulate elections in Alabama as follows: 

‘ ‘ Sec. 33. Be it further enacted , That one of the inspectors must number each ballot 
with the same number as the name of the voter on the poll-list, and the ballot must then, 
without being opened or examined, be deposited in the proper ballot-box. 

‘ ‘ Sec. 34. Be it further enacted , That there shall be no challenging of electors appearing 
to vote at any election hereafter held in this State, and any registered voter appearing 
to vote at any election in this State shall be allowed to do so without question, challenge, 
or objection by any person; and any person who questions, challenges, or objects, or who 
unlawfully hinders or delays any person offering to vote, shall be guilty of a misde¬ 
meanor, and, on conviction, shall be fined five hundred dollars, and, on failure to pay the 
same, shall be imprisoned in the county jail for six months. 

“Sec. 35. Be it further enacted , That it shall be the duty of the inspectors of all elec¬ 
tions in the election precincts, immediately on the closing of the polls, to count out the 
votes that have been polled, and, after so doing, to promptly certify the poll-list, seal up 
the boxes containing the ballots and poll-list, and deliver them to the returning officer, 
who shall deliver such sealed boxes to the judge of probate within forty-eight hours 


SENATE ELECTION CASES. 


G14 

after they may be delivered to him, and take a receipt from the judge of probate for 
such sealed ballot-boxes. 

“Sec. 36. Be it further enacted, That judges of probate, sheriffs, and clerks of the cir¬ 
cuit court, or any two of them, of the several counties are hereby constituted a board of 
supervisors of elections in and for their respective counties; and it shall be the duty of 
said board of supervisors to open, compare, and count the ballots cast at all elections. 

“Sec. 37. Be it further enacted , That it shall be the duty of the board of supervisors of 
elections, upon good and sufficient evidence that fraud has been perpetrated, or unlaw¬ 
ful or wrongful means resorted to to prevent electors from freely and fearlessly casting 
their ballots, to reject such illegal or fraudulent votes cast at any of such polling places, 
which rejection, so made as aforesaid, shall be final, unless appeal is taken within ten 
days to the probate court; and in case of a tie for any county officer, the board of super¬ 
visors shall decide. 

“Sec. 38. Be it further enacted, That it shall be the duty of the board of supervisors, 
within five days from the date of receiving the sealed boxes and certificates of the num¬ 
ber of votes cast at each polling place from the inspectors, to make certificates, on blanks 
furnished by the secretary of state, of the exact number of votes cast in their county for 
each person, stating the office such person is voted for, and forward them, excepting for 
governor, lieutenant-governor, secretary of state, auditor, treasurer, and attorney-gen¬ 
eral, to the secretary of state, who shall, after such returns have been duly examined by 
the secretary of state, be filed as other public papers required to be kept in his office, and 
shall be subject to the inspection of any elector of this State. 

“Sec. 39. Be it further enacted , That the board of supervisors shall forward a certified 
return of election for governor, lieutenant-governor, secretary of state, auditor, treasurer, 
and attorney-general to the presiding officer of the senate at least thirty days before the 
time fixed for the meeting of the next general assembly. 

“Sec. 40. Be it further enacted , That it shall be the duty of the presiding officer of the 
senate, within five days after the assembling of the general assembly, in the presence of 
a majority of the members of the general assembly, to open the returns and proclaim the 
result of such election, after which they shall be filed in the office of secretary of state, 
as required by section thirty-seven of this act. 

“Sec. 41. Be it further enacted , That it shall be the duty of the secretary of state to 
furnish, from time to time, the board of county supervisors with all necessary blanks 
upon which to make election returns. 

“Sec. 42. Be it further enacted, That it shall be the duty of the secretary of state to 
forward certificates of election to such persons as may be ascertained to be elected to any 
office in this State, addressed to the board of supervisors, at the court-house of the county 
in which such person returned as elected may reside, within ten days after receiving 
such returns of election from the supervising board of the county; and it shall be the 
duty of said board of supervisors to forward said election certificates to the persons en¬ 
titled thereto.” 

Section 7 of Article IY of the constitution provides as follows: 

“A majority of each house shall constitute a quorum to do business, but a smaller 
number may adjourn from day to day, and may compel the attendance of absent mem¬ 
bers in such manner and under such penalties as each house may provide.” 

On the 18th day of November, 1872, the day fixed by law for the assembling of the 
legislature, eighteen persons - holding the required certificates of election as senators, 
issued to them by the secretary of state, appeared in the senate chamber in the capitol 
at Montgomery, and at 12 o’clock noon were called to order by the holding-over lieuten¬ 
ant-governor, Moren. They exhibited their certificates of election issued to them by the 
secretary of state, enrolled their names as senators, took the oath of office in due form, 
and proceeded to the election of officers pro tempore, viz, secretary, assistant secretary, 
and other officers. On the next day another senator presented his certificate, enrolled 
himself, and took the oath of office, in pursuance of section 48 of the revised code of 
Alabama. All of said senators took the oath prescribed by Article XIV of the consti¬ 
tution before the Hon. J. Q. Smith, one of the circuit judges of the State of Alabama. 
On the next day the senate, so constituted, proceeded to elect its permanent officers, all 
its proceedings being under the presidency of the Hon. E. H. Moren, lieutenant-governor 
of the State. Said proceedings were had by a majority of the whole number required 
by the constitution to constitute a senate. 

On the 18th day of November, 1872, at the hour of 12 o’clock noon, the Hon. John 
P. Hubbard, speaker of the previous house of representatives, took his seat at the 
speaker’s desk in the hall of the house of representatives in the capitol in Montgomery, 
and called the house to order. Less than one-half of the hundred persons wh<T consti¬ 
tute a full house appeared in their places. These persons exhibited certificates of elec¬ 
tion to the house of representatives issued to them by the secretary of state, as required 
by the act before quoted, enrolled themselves as members of the house, and adjourned 
until the next day. 


SYKES VS. SPENCER. 


615 


Pursuant to adjournment, the house met the next day in the same hall, but still less 
than one-lialf of the whole number of members appeared, though some additional mem’ 
bers appeared and presented their certificates of election, issued to them by the secretary 
of state, and enrolled themselves as members of the house. An adjournment was then 
had to the next day. 

On Wednesday, the 20th of November, 1872, the house was again called to order, 
when fifty-three members appeared. Those who had not been previously enrolled pre¬ 
sented their certificates of election, issued to them by the secretary of state, and were 
enrolled. All of said persons so appearing and presenting their certificates of election 
took the oath of office required by the constitution, the same oath being administered 
to them as was administered to the members of the senate by the Hon. J. Q. Smith. 
The house of representatives thus assembled then proceeded to the election of a speaker, 
and Hon. Lewis M. Stone, holding a certificate of election issued to him by the secre¬ 
tary of state as a member of said house from the county of Pickens, was chosen speaker 
of said house of representatives. All of these proceedings of said house were taken by 
it under the presidency of Hon. John P. Hubbard, the speaker of the previous house of 
representatives, who, until the election of his successor, occupied the chair. Mr. Hub¬ 
bard, upon the election of the new speaker, retired and Mr. Stone assumed the duties of 
speaker of the house. The house then proceeded to the election of subordinate officers, 
and so fully organized itself, as the senate had previously, under the authority of Article 
IV, section G of the constitution of Alabama. 

These two bodies of men constituted what is known as the State-house legislature, 
which pretended to elect Mr. Sykes as Senator. This legislature was recognized by the 
Hon. Robert B. Lindsay, who, under the constitution, remained governor of the State 
until the canvass of votes subsequently made by the State-house legislature, when it 
was ascertained and declared by them that Hon. David P. Lewis had been elected gov¬ 
ernor; and thereupon the said Lewis took the oath of office and entered upon the dis¬ 
charge of its duties. 

On the same 18th day of November, two other bodies of men assembled at the court¬ 
house, one claiming to be the senate and the other the house of representatives—the 
legislature of said State. After Governor Lewis was inaugurated he recognized the 
court-house legislature as the proper and legal legislature of the State. 

The contest between these two legislatures depends upon this: In the State-house 
legislature were eight or nine members who had received regular certificates of election, 
but who are conceded not to have been elected. There were of this class a sufficient 
number, together with unquestioned members, to make a quorum in both houses of the 
State-house legislature. In the court-house legislature, persons claiming the seats of 
this class of members of the State-house legislature assembled with others who were 
undoubtedly members-elect to the senate and house of representatives, and thereby con¬ 
stituted in numbers a quorum of the two houses at the court-house. And the question 
is, whether at the time the election of Spencer took place by the court-house legislature 
that legislature, composed of a quorum of the persons actually elected, should be re¬ 
garded as the legislature of the State; or whether the State-house legislature, a quorum 
in both houses being made by this class of persons who in fact were not elected, but had 
the regular certificates of election, should be regarded as the legal legislature. And 
this again depends upon another question: whether for the time being, and until some 
decision by the two houses could be arrived at, the eight or nine persons holding certifi¬ 
cates without the election or the eight or nine persons elected but having no certificates 
are to be considered as entitled to act and form part of the legislature of the State. 

It is provided by the law of the State, passed in pursuance of section 6, Article IV 
of the Constitution, among other things, as follows: 

“Sec. 45. That the election of persons declared elected to any office, whether State, 
county, Representatives in Congress, or to any office which is filled by a vote of the 
people, may be contested by any qualified elector of this State for any one or more of 
the following causes: First. Malconduct, fraud, or corruption on the part of any in¬ 
spector, clerk, returning officer, or board of supervisors. Second. When the persons 
w r hose election to such office is contested was not eligible thereto at the time of such 
election. Third. On account of illegal votes. Fourth. Any intimidation, threats to 
discharge from employment, offer to bribe or bribery, violence, abuse, or any other mis¬ 
conduct calculated to prevent a fair, free, and full exercise of the elective franchise. 
But no person can contest the election of any person to any office on account of race, 
color, or previous condition. 

‘ ‘ Sec. 46. That no testimony must be received of any illegal votes or other grounds 
of contest unless the party contesting has given to the adverse party notice in writing of 
the cause or causes which he expects to name on the trial, which notice must be served 
personally at least ten days before the trial. 

“Sec. 47. That whenever any elector chooses to contest any election to any office em- 


616 


SENATE ELECTION CASES. 


braced in this act he must make a statement in writing setting forth specifically, first, 
the names of the party contesting, and that he was a qualified voter at the time the 
election was held; second, the office which said election was held to fill, and the time of 
holding the same; third, the particular ground or grounds of such contest; which state¬ 
ment must be verified by the oath of the contesting party, or some one for such party 
to the effect that he believes the same to be true. 

“Sec. 48. That it shall be the duty of the probate judge to deliver to either party, 
on his application, copies of the poll-lists on being paid his legal fees therefor, and on the 
trial of the contest the judge of probate shall be required by a subpoena duces tecum to 
produce the original poll-lists and ballots, filed in his office for enumeration, which shall 
be received as conclusive evidence of the fact that the person named in the poll-lists 
voted, and for whom he voted. 

******* 

“Sec. 51. That any elector contesting the election of any senator or representative to 
the general assembly, he must first give security for the costs of such contest, which must 
be acknowledged before and approved by the clerk of the circuit court of any county of 
the senatorial district, if such contest be for the election of a senator; or if for the elec¬ 
tion of a representative, by the clerk of the circuit court of the county in which such 
election was held. 

‘ ‘ Sec. 52. That the contesting party must next give notice to the person whose elec¬ 
tion is contested, by having served on him, or left at his usual place of residence, by the 
sheriff or some constable, a copy of the grounds of contestation and affidavit, as required 
by the provision of section 45 of this act. 

‘ ‘ Sec. 53. That the security for costs must be given, and the person whose election is 
contested notified in the mode prescribed in the preceding section, within twenty days 
after he is declared elected. 

“Sec. 54. That the original statement of the grounds of contest and affidavit must, 
after such service, be returned to the office of the clerk of the circuit court in which 
security for the costs has been given, with the return of the officer indorsed, which is pre¬ 
sumptive evidence of the service. 

******* 

“Sec. 61. That testimony taken in contests of election under this act must be certi¬ 
fied, indorsed, and sealed up, as is required in taking depositions at suits at law. And 
if the contest is of the election of a senator or member of the house of representatives of 
the general assembly, the depositions must be directed to the presiding officer of that 
branch of the general assembly before which such contest is to be tried, at the seat of 
government, and deposited in the nearest post-office. 

‘ ‘ Sec. 62. That on the determination of such contest, the secretary of the senate or 
clerk of the house, as the case may be, must tax the costs due to the commissioner, wit¬ 
nesses, the sheriff and other officers, for serving notices and subpoenas as foi similar 
service in courts of law, and certify the amount of each separate item, the name of the 
person entitled thereto, and the result of such contest, to the clerk of the circuit court, in 
which security for costs is required to be given by the provisions of this act. And the 
clerk of such court must thereupon issue execution in favor of the successful party for 
the amount of such costs, specifying the items, the amount of each, and the persons en¬ 
titled thereto, in the bill of costs, which execution must be made returnable to the term 
of the circuit court of such county next after its issue, and may be issued as often as 
may be necessary, and must, when collected, be paid by the officer collecting on demand 
to the parties entitled thereto.” 

It is not pretended that the persons who were elected, but had not received certificates 
of election, took the steps required by this statute to contest the seats of the persons who 
held the certificates, but had not been elected. It is claimed, and with great force, that, 
until a contest, in the manner provided by law, the members who had received the cer¬ 
tificates of election, although those certificates had been erroneously delivered and they 
were not in fact elected, were entitled to sit as members of the legislature. It is un¬ 
doubtedly true that had all the persons claiming to be members of the legislature met 
in the State-house, and the two houses had proceeded there to organize, the persons 
holding the certificate, without the election, would have been entitled to their seats until 
the persons who had been elected, but had received no certificates, should make contests 
for their seats and their claim should be determined by the houses themselves. 

The matter, then, comes to this: The State-house legislature was the legislature in 
form, and the court-house legislature was the legislature in fact. While these two pre¬ 
tended legislatures were in existence, each claiming to possess the legislative power of 
the State, Spencer was elected to the Senate by the court-house legislature, and Sykes 
was elected by the State-house legislature. Spencer was first elected, and on the day of 
his election the court-house legislature was recognized bvthe governor as the legal legis- 


SYKES VS. SPENCER. 


817 

lature of the State. Therefore, in determining as to the right of Spencer or Sykes to this 
seat, the Senate is compelled to choose between the body in fact elected, organized, act- 
ing, and recognized by the executive department as the legislature, and another body, 
organized in form, but without the election and without a recognition on the part of the 
executive of the State at the time they pretended to elect Sykes. When we consider 
that all the forms prescribed by law for canvassing and certifying an election, and for 
the organization of the two houses, are designed to secure to the persons actually elected 
the right to act in the offices to which in fact they have been elected, it would be, sacri¬ 
ficing the end to the means were the Senate to adhere to the mere form, and thus defeat 
the end which the forms were intended to secure. 

The persons in the two bodies claiming to be the senate and house of representatives 
who voted for Spencer constituted a quorum of both houses of the members actually 
elected; the persons in the State-house legislature who voted for Sykes did not constitute 
a quorum of the two houses duly elected, but a quorum of persons certified to have been 
elected to the two houses. Were the Senate to hold Sykes’s election to be valid, it would 
follow that erroneous certificates, delivered to men conceded not to be elected, had en¬ 
abled persons who in fact ought not to vote for a Senator to elect a Senator to misrepre¬ 
sent the State for six years. On the other hand, if we treat the court-house legislature 
as the legal legislature of the State, it is conceded that we give effect to the will of the 
people as evidenced by the election. So that, to state the proposition in other words, we 
are called upon to choose between the form and the substance, the fiction and the fact; 
and, considering the importance of the election of a Senator, in the opinion of your com¬ 
mittee the Senate would not be justified in overriding the will of the people, as expressed 
at the ballot-box, out of deference to certificates issued erroneously to persons who were 
not elected. 

In the opinion of your committee it is not competent for the Senate to inquire as to 
the right of individual members to sit in a legislature which is conceded to have a quo¬ 
rum in both houses of legally elected members. But undoubtedly the Senate must 
always inquire whether the body which pretended to elect a Senator was the legislature 
of the State or not; because a Senator can only be elected by the legislature of a State. 
In this case, Spencer having been seated by the Senate, and being prima facie entitled to 
hold the seat, the Senate cannot oust him without going into an inquiry in regard to the 
right of the individual persons who claim to constitute the quorum in these respective 
bodies at the court-house and at the State-house. We cannot oust Spencer from his seat 
without inquiring and determining that the eight or nine individuals who were elected 
were not entitled to sit in the legislature of the State because they lacked the certifi¬ 
cates. But if the Senate can inquire into this question at all, it must certainly inquire 
for the fact rather than the evidence of the fact. It cannot be maintained that when 
the Senate has been compelled to enter upon such an examination it is estopped by mere 
prima facie evidence of the fact, and the certificate is conceded to be nothing more than 
prima facie evidence. But the Senate must go back of that to the fact itself, and deter¬ 
mine whether the persons claiming to hold seats were in fact elected. When we do this 
we come to the conceded fact that these persons lacking the certificate had in fact been 
elected, and that the persons who claimed to be the quorum of the two houses were in 
fact the persons who, in virtue of the election, were entitled to constitute the quorum of 
both houses. 

So that, in any view of the matter which your committee can take, we are of opinion 
that Mr. Sykes makes no case entitling him to the seat now occupied by Mr. Spencer, and 
your committee ask to be discharged from the further consideration of the memorial of 
Mr. Sykes. 

VIEWS OP THE MINORITY. 

In the case presented by the memorial of Francis W. Sykes, contesting the election ot 
Hon. George E. Spencer as a Senator from the State of Alabama, the undersigned respect¬ 
fully submit the following minority report: 

By a law of the State of Alabama, the third Monday in November in each year is fixed 
as the day for the annual meeting of the general assembly of said State, and on the 18th 
day of November, A. D. 1872, being the third Monday of said month, two separate bodies 
of men, each claiming to be the legislature of Alabama, assembled at different places in 
the city of Montgomery and proceeded to organize as such legislature. 

One of these bodies, which met in the capitol, or State-house, in said city, on the 10th 
day of December, 1872, elected the Hon. Francis W. Sykes a Senator in Congress from 
the said State for the constitutional term commencing on the 4th day of March, 1873; 
and on the 3d day of the same month the other body, which met at the United States 
court-rooms, also claiming to be the legislature of the State, elected the Hon. George E. 
Spencer a Senator in Congress from said State for the said term. 

The two bodies subsequently became merged into one general assembly, under an ar- 


618 


SENATE ELECTION CASES. 


rangem mt proposed by the Attorney-General of the United States. The organization of 
the fusion legislature took place after the election of both Mr. Sykes and Mr. Spencer, 
and the right of neither the one nor the other depends upon the action of that legislature 
or anything connected with its history. 

Whatever claim either of the persons named may have to a seat in the Senate as a Sen¬ 
ator from the State of Alabama rests entirely upon the question whether the body that 
elected him at the time of such election was in fact the legislature of the State, and not 
upon anything that took place in the legislative history of the State subsequent to the 
time of his election. It is admitted that there could be but one lawful general assembly 
in Alabama, and in order to determine whether Mr. Sykes or Mr. Spencer is entitled to a 
seat in the Senate, it is necessary to decide which of the two bodies, if either, claiming to 
have been the general assembly of the State, was in fact the legal legislature and com¬ 
petent to elect a Senator. If either of the bodies, known as the capitol legislature and 
the court-house legislature, assembled in accordance with the provisions of the constitu¬ 
tion and laws of Alabama, it cannot be doubted that such body so assembled in conformity 
with law was vested exclusively with the legislative power of the State, and was alone 
competent to elect a Senator to represent the State in Congress. On the other hand, it 
cannot be maintained, if either of said bodies assembled in violation of law or without 
authority of law, that such body so meeting, by whatever name it chose to style itself, 
was clothed with any legislative authority, or had any rightful claim to be regarded, for 
any purpose, as the general assembly. 

These propositions are self-evident, and cannot be questioned or denied. They are too 
clear to admit of argument, or to need illustration or enforcement. As isolated truths, 
unconnected with other questions, they would receive the ready assent of not only every 
member of the Senate but of every man in the country at all familiar with the constitu¬ 
tion and laws of Alabama. The undersigned, therefore, deem it proper to refer to such 
provisions of the constitution and laws of the State of Alabama as bear upon the elec¬ 
tion of members of the senate and house of representatives—and their organization as 
legislative bodies—composing the general assembly of the State. The following are 
some of the provisions of the constitution and laws of said State. Article V, sections 2, 
3, and 16, of the constitution: 

‘ ‘ Sec. 2. The governor, lieutenant-governor, secretary of state, treasurer, and attorney- 
general shall hold their office for the term of two years, and the auditor for the term of 
four years. 

‘ ‘ Sec. 3. The returns of every election for the officers named in the preceding section 
shall be sealed up and transmitted to the seat of government by the returning officers, 
directed to the presiding officer of the senate, who, during the first week of the session, 
shall open and publish the same in the presence of a majority of the members of the 
general assembly; the parson having the highest number of votes shall be declared duly 
elected; but if two or more shall be highest and equal in votes for the same office, one of 
them shall be chosen by the joint vote of both houses. Contested elections for executive 
officers shall be determined by both houses of the general assembly, in such manner as 
shall be prescribed by law. 

‘ ‘ Sec. 16. The lieutenant-governor shall be president of the senate, but shall vote 
only when the senate is equally divided, and in case of his absence or impeachment, or 
when he shall exercise the office of governor, the senate shall choose a president pro tem¬ 
pore. ’ ’ 

By section 6, Article IV of the constitution of Alabama, the president of the senate and 
the speaker of the house of representatives remain in office until their successors are 
elected and qualified, as follows: 

“Sec. 6. The house of representatives, when assembled, shall choose a speaker and 
its other officers; and the senate shall choose a president, in the absence of the lieuten¬ 
ant-governor, and its other officers; each house shall judge of the qualifications, elections, 
and returns of its own members, but a contested election shall be determined in such 
manner as shall be directed by law. The president of the senate and the speaker of 
the house of representatives shall remain in office until their successors are elected and 
qualified. n 

By Article VIII of the constitution of Alabama, the house of representatives is de¬ 
clared to consist of one hundred members, apportioned among, and elected from, the 
counties of the State as directed in said article. 

The senate consists of thirty-three members, elected by the voters from the senatorial 
districts, as directed in said article; and these two bodies constitute the general assembly 
of the State, and therein, by section 1 of Article IV of the constitution, is vested the legis¬ 
lative power of the State, as follows: 

“Sec. 1. The legislative power of this State shall be vested in » general assembly, 
which shall consist of a senate and house of representatives.’’ 

By act of the general assemby of Alabama, approved 31st December, 1868, entitled 


SYKES VS. SPENCER. 


619 

“ An act to fix the time of the annual session of the general assembly,” the third Mon¬ 
day ot November in each year is declared to be the day for the annual assembling of the 
general assembly. 

J>y section 118 ol the revised code of Alabama, which was re-enacted ai d continued in 
force by an act approved July 29, 1868, the general assembly is required to convene in 
the city of Montgomery, as follows: 

The members of the general assembly shall convene in the city of Montgomery on 
the first day of November in each year, unless that day be Sunday, and if that day be 
Sunday, then on the next day afterward.” 

This provision of the law was amended so as to require the general assembly to meet 
on the third Monday of November, as before stated. 

By the act of the general assembly of Alabama, approved 13th February, 1850, entitled 
‘ ‘ An act supplemental to an act making appropriations to establish the State-house at 
Montgomery,” and by the original act approved 11th February, 1850, the State of Ala¬ 
bama provided for the erection of the present capitol, or State-house, at Montgomery, and 
construction therein of a hall of the house of representatives and the senate chamber, for 
the use of the general assembly of this State, and from the time of the removal of the seat 
of government from Tuscaloosa to Montgomery the two branches of the general assem¬ 
bly have been accustomed to use, for the purposes of their legislative sessions, the hall 
and chamber provided for them in the capitol now in use, and in that previously standing 
on the same site; and no other hall or chamber in Montgomery or elsewhere, except for 
a short period in 184&-’50, during a session of the legislature, when, in consequence of 
the destruction of the State-house by fire, the general assembly, by the concurrent action 
of the two houses, held their sessions in another building in Montgomery. 

By act of the general assembly of Alabama, approved October 8, 1868, entitled "An 
act to regulate elections in this State,” it is provided (section 7) that the State senators 
shall be elected on the first Tuesday after the first Monday of November, 1872, and every 
four years thereafter; in section 6, that representatives in the general assembly shall be 
elected on the first Tuesday after the first Monday in November, 1870, and every two 
years thereafter. 

This act further provides as follows: 

‘‘ Sec. 33. Be it further enacted , That one of the inspectors must number each ballot 
with the same number as the name of the voter on the poll-list, and the ballot must 
then, without being opened or examined, be deposited in the proper ballot-box. 

“Sec. 34. Beit further enacted , That there shall be no challenging of electors ap¬ 
pearing to vote at any election hereafter held in this State, and any registered votei 
appearing to vote at any election in this State shall be allowed to do so without question, 
challenge, or objection by any person; and any person who questions, challenges, or ob¬ 
jects, or who unlawfully hinders or delays any person offering to vote, shall be guilty ot 
a misdemeanor, and, on conviction, shall be fined five hundred dollars, and, on failure 
to pay the same, shall be imprisoned in the county jail for six months. 

“Sec. 35. Be it further enacted, That it shall be the duty of the inspectors of all elec¬ 
tions in the election precincts, immediately on the closing of the polls, to count out the 
votes that have been polled, and, after so doing, to promptly certify the poll-list, seal up 
the boxes containing the ballots and poll-list, and deliver them to the returning officer, 
who shall deliver such sealed boxes to the judge of probate within forty-eight hours after 
they may be delivered to him, and take a receipt from the judge of probate for such 
sealed ballot-boxes. 

“Sec. 36. Be it further enacted , That judges of probate, sheriffs, and clerks of the cir¬ 
cuit court, or any two of them, of the several counties, are hereby constituted a board 
of supervisors of elections in and for their respective counties; and it shall be the duty 
of said board of supervisors to open, compare, and count the ballots cast at all elec¬ 
tions. 

‘ ‘ Sec. 37. Be it further enacted, That it shall be the duty of the board of supervisors 
of elections, upon good and sufificent evidence that fraud had been perpetrated, or unlaw¬ 
ful or wrongful means resorted to to prevent electors from freely and fearlessly casting 
their ballots, to reject such illegal or fraudulent votes cast at any of such polling places, 
which rejection, so made as aforesaid, shall be final, unless appeal is taken within ten 
days to the probate court; and in case of a tie for any county officer, the board of super¬ 
visors shall decide. 

“Sec. 38. Be it further enacted, That it shall be the duty of the board of supervisors, 
within five days from the date of receiving the sealed boxes and certificates of the num¬ 
ber of votes cast at each polling place from the inspectors, to make certificates, on blanks 
furnished by the secretary of state, of the exact number of votes cast in their county for 
each person, stating the office such person is voted for, and forward them, excepting for 
governor, lieutenant-governor, secretary of state, auditor, treasurer, and attorney-gen¬ 
eral, to the secretary of state, who shall, after such returns have been duly examined by 


SENATE ELECTION CASES. 


620 

the secretary of state, be filed as other public papers required to be kept in his office, 
and shall be subject to the inspection of any elector of this State. 

“Sec. 39. Be it further enacted , That the board of supervisors shall forward a certified 
return of election for governor, lieutenant-governor, secretary of state, auditor, treasurer, 
and attorney-general to the presiding officer of the senate at least thirty days before the 
time fixed for the meeting of the next general assembly. 

“Sec. 40. Be it further enacted , That it shall be the duty of the presiding officer of the 
senate, within five days after the assembling of the general assembly, in the presence of a 
majority of the members of the general assembly, to open the returns and proclaim the 
result of such election, after which they shall be filed in the office of secretary of state, 
as required by section 37 of this act. 

“Sec. 41. Be it further enacted , That it shall be the duty of the secretary of state to 
furnish from time to time the board of county supervisors with all necessary blanks upon 
which to make election returns. 

“ Sec. 42. Be it further enacted. That it shall be the duty of the secretary of state to 
forward certificates of election to such persons as may be ascertained to be elected to any 
office in this State, addressed to the board of supervisors, at the court-house of the county 
in which such person returned as elected may reside, within ten days after receiving such 
returns of election from the supervising board of the county; and it shall be the duty of 
said board of supervisors to forward said election certificates to the persons entitled 
thereto. ’ ’ 

Applying these provisions of the constitution and laws of Alabama to the respective 
organizations known as the capitol and court-house legislatures, we are not left in doubt 
as to which of the two bodies was the lawful general assembly. 

The undersigned have no hesitation in declaring it as their opinion that the senate and 
house of representatives which met at the capitol and elected Mr. Sykes a Senator from 
the State of Alabama were organized in strict compliance with the provisions of the con¬ 
stitution and laws of the State, and, thus organized, constituted the general assembly, 
and were vested exclusively with legislative power. To sustain the opinion, we need 
only to refer to facts which were admitted before the committee or shown by record evi¬ 
dence to be true. 

In pursuance of the act of the general assembly of Alabama, approved October 8,1868, 
hereinbefore referred to, an election for governor, lieutenant-governor, secretary of state, 
treasurer, attorney-general, and other State officers, and also for senators and representa¬ 
tives in the general assembly was held on the first Tuesday after the first Monday in 
November, 1872, in all the counties in the State. The returns of said election, certified 
as by law required, were made by the boards of supervisors of election to the secretary 
of state, and were by him filed in his office. Certificates of election were then issued by 
the secretary of state to the persons shown by said returns to have been elected to the 
general assembly, namely, to thirty-three senators and one hundred representatives. The 
duty of the secretary of state in this regard is prescribed by the forty-second section of 
the said act of October 8,1868, as follows: 

‘ ‘ Sec. 42. Be it further enacted , That it shall be the duty of the secretary of state to 
forward certificates of election to such persons as may be ascertained to be elected to any 
office in this State, addressed to the board of supervisors, at the court-house of the county 
in which such person returned as elected may reside, within ten days after receiving such 
returns of election from the supervising board of the county; and it shall be the duty of 
said board of supervisors to forward said election certificates to the persons entitled 
thereto.” 

It is not denied that the election had been held in strict compliance with the provis¬ 
ions of law, or that the persons to whom certificates of election were issued had been 
voted for at said election for the offices to which they were respectively certified to have 
been elected. Nor will it be denied that the board of supervisors of elections in the sev¬ 
eral counties of the State had made returns as required by section 38 of the act aforesaid 
to the secretary of state, showing that the persons to whom certificates of election were 
subsequently issued had been elected to the State senate and house of representatives. 

Over these returns the secretary of state had no control other than their custody. He 
was required to receive them and file them in his office, and within ten days to issue cer¬ 
tificates to tire persons shown thereby to have been elected. His duty was purely minis¬ 
terial, and enforced by penalties prescribed by law. 

The suggestion has been made that the secretary of state, in issuing and causing to be 
delivered certificates of election to the members of the capitol legislature from Barber 
County, acted in bad faith, but no evidence was offered to sustain such suggestion, and, 
in fact, the imputation was not pressed in argument before the committee. 

In the absence of any proof to the contrary, public officers must be presumed to act in 
good faith in the performance of official duty, and the undersigned know of no reason for 
denying to this officer the vindication arising from such presumption. He sought the ad- 


SYKES VS. SPENCER. 


621 


vice of eminent counsel of both political bodies in reference to his duty in the matter, and 
acted in accordance with their written instructions in issuing the certificates referred to. 

The constitution of Alabama provides, ArticleIV, section 21, as follows: “The general 
assembly shall meet annually on such day as may be by law prescribed, and shall not 
remain in session longer than thirty days, except by vote of two-thirds of each house.” 

The act of the general assembly of the State hereinbefore referred to, approved Decem¬ 
ber 31,1868, fixes the time for the annual meeting of the general assembly on the third 
Monday of November in each year. 

Before proceeding to recite the facts connected with the organization of the two houses 
of the capitol legislature, it may be proper to refer to the following provisions of the con - 
stitution of Alabama, showing, among other things, the part to be taken by the lieutenant- 
governor and the speaker of the last house of representatives in the organization of the 
two houses of the general assembly of the State, and also that a majority of each house 
shall constitute a quorum to do business, and that each house “shall judge of the quali¬ 
fications, elections, and returns of its members.” 

Article IV, sections 6 and 7, are as follows: 

‘ ‘ Sec. 6. The house of representatives, when assembled, shall choose a speaker and its 
other officers; and the senate shall choose a president, in the absence of the lieutenant- 
governor, and its other officers; each house shall judge of the qualifications, elections, 
and returns of its own members, but a contested election shall be determined in such 
manner as shall be directed by law. The president of the senate and speaker of the house 
of representatives shall remain in office until their successors are elected and qualified. 

“Sec. 7. A majority of each house shall constitute a quorum to do business, but a 
smaller number may adjourn from day to day, and may compel the attendance of absent 
members in such manner and under such penalties as each house may provide.” 

Article V, section 16, of the constitution also provides: 

“Sec. 16. The lieutenant-governor shall be president of the senate, but shall vote only 
when the senate is equally divided; and in case of his absence or impeachment, or when 
he shall exercise the office of governor, the senate shall choose a president pro tempore .” 

Bearing in mind these provisions of the constitution and laws of the State in reference 
to the meeting and organization of the two houses of the general assembly, let us inquire 
whether the senate and house of representatives known as the capitol legislature met 
and organized in conformity therewith. 

The journals of the two houses of the capitol legislature, published by authority, show 
the following facts in common with the organization of the two houses. These facts were 
not disputed in the argument before the committee. 

On the 18th day of November, 1872, being the third Monday of said month, the time pre¬ 
scribed by law for the annual meeting of the general assembly, eighteen persons holding cer¬ 
tificates of their election as senators from the secretary of state appeared in the senate 
chamber in the capitol at Montgomery, and at the hour of 12 o’clock of the day were 
called to order by Lieutenant-Governor Moren, who was present in conformity with the 
requirement of the constitution for the purpose of organizing the senate and presiding 
over its deliberations. The eighteen members present, constituting a quorum of the whole 
number of senators, exhibited the certificates of their election issued by the secretary of 
state, enrolled their names, and took the oaths of office administered in due form and pro¬ 
ceeded to elect officers, namely, secretary, assistant secretary, and other officers. On the 
following day another senator appeared in the senate chamber, was qualified, and took his 
seat in the senate. The oaths of office prescribed by the constitution of Alabama were 
taken by these nineteen senators before the Hon. J. Q. Smith, one of the judges of the 
circuit court of the State, and all the proceedings were conducted under the presidency 
of the lieutenant-governor, who is made the presiding officer of the senate by the consti¬ 
tution. These are the facts connected with the meeting and organization of the senate; 
let us now inquire into the organization of the house of representatives. 

It appears from the journal of the proceedings, and is not disputed, that on the 18th 
day of November, 1872, being the third Monday of said month, the day fixed by law for 
the meeting of the legislature, forty-five persons holding the certificates of their election 
as members of the house of representatives convened in the hall of the house in the cap¬ 
itol at the city of Montgomery, and at the hour of 12 o’clock on that day the house was 
called to order by John P. Hubbard, speaker of the last house of representatives. A 
temporary clerk and doorkeeper were appointed, and a call of the house made, when 
forty-five persons enrolled their names, and, having been duly sworn, took their seats as 
members of the house. The number present being less than a quorum, an adjournment 
took place until 12 o’clock the next day, when the house again met. The speaker being 
in the chair, five additional members having certificates of election appeared, enrolled 
their names, were duly sworn, and took their seats as members of the house. The whole 
number of members then present being fifty, one less than a quorum, the house adjourned 
until 11 o’clock the following day. Pursuant to adjournment, the house again met on 


SENATE ELECTION CASES. 


the 20th November, when three other members having certificates as aforesaid appeared 
and qualified by taking the oaths prescribed by the constitution, and took their seats as 
members of the body. 

Fifty-three members of the house were present on that day, and, being a quorum of 
the whole number of representatives, proceeded to the election of a speaker and other 
officers. 

Mr. Stone, a member from Pickens, received 51 votes for speaker, and was declared 
duly and constitutionally elected speaker of the house of representatives by the pre¬ 
siding officer. Mr. Stone then qualified as speaker and entered upon the discharge of the 
duties of the office. Other officers of the house were elected on the same day, some of 
them receiving as many as 53 votes, and the house, on the said 20th day of November, 
thus became fully organized. 

After the organization of the house, to wit, on the 25th of November, another member 
appeared and also qualified and took his seat. 

All the proceedings in the organization of the two houses appear to have been orderly, 
regular, and in strict conformity with the requirements of the constitution and laws of 
the State. Both houses assembled on the day prescribed by law for the meeting of the 
general assembly in their respective chambers in the State capitol, set apart and appro¬ 
priated by the State of Alabama for the use of the respective houses of the general 
assembly. 

The senate was presided over by the lieutenant-governor, and the house of representa¬ 
tives by the speaker of the last house during the whole time of the organization of the 
respective bodies, and a quorum of members holding certificates of election issued by the 
secretary of state as required by law were present in each house and duly qualified, and 
participated in such organization and in the further proceedings of the two bodies. 

Both houses of the capitol legislature having organized notified the governor that 
they were ready to receive any communication he might have to make to the general 
assembly. The constitution of Alabama, Article V, section 7, makes it the duty of the 
governor to “communicate at every session by message to the general assembly the 
condition of the State, and recommend such measures as he shall deem expedient. ’ ’ In 
performance of this duty, Robert B. Lindsay, then governor of the State, on the 22d day 
of November, 1872, sent his annual message in writing to the capitol legislature, a copy 
of which was delivered to each house. 

This action of the governor in the performance of a duty imposed by the constitution 
was an unequivocal recognition by the executive department of the State of the capitol 
legislature as the lawful general assembly of Alabama, and is entitled to weight in the 
consideration of the question referred to the committee. 

After the organization of the two houses of the capitol legislature, further proceedings 
were had by those houses to which it may be proper here to advert. 

The constitution of the State provides, in Article V, sections 2 and 3, as follows: 

“Sec. 2. The governor, lieutenant-governor, secretary of state, treasurer, and attor¬ 
ney-general shall hold their offices for the term of two years, and the auditor for the term 
of four years. 

“ Sec. 3. The returns of every election for the offices named in the preceding section 
shall be sealed up and transmitted to the seat of government by the returning officers, 
directed to the presiding officer of the senate, who, during the first week of the session, 
shall open and publish the same in the presence of a majority of the members of the gen¬ 
eral assembly; the person having the highest number of votes shall be declared duly 
elected, but if two or more shall be highest and equal in votes for the same office, one of 
them shall be chosen by the joint vote of both houses. Contested elections for executive 
officers shall be determined by both houses of the general assembly in such manner as 
shall be prescribed by law. ’ ’ 

For the purpose of complying with these provisions of the constitution, the two houses 
of the capitol legislature, on the 22d day of November, 1872, under a resolution previ¬ 
ously passed, met in the hall of the house of representatives to witness the opening and 
counting of the returns of the election of the officers named in section 2 above cited. 
Lieutenant-Governor Moren, the then lieutenant-governor of the State and the presiding 
officer of the senate, to whom said returns had been directed by the returning officers 
in the presence of a majority of the members of the two houses proceeded to open and 
count the said returns; and on the following day, the opening and counting thereof hav¬ 
ing been completed, the lieutenant-governor, as presiding officer of the senate, published 
the result of the election as shown by the count of the returns; and thereupon the Hon. 
David P. Lewis was declared elected governor and Alexander McKinstry lieutenant- 
governor of the State, who were duly notified thereof and afterward took the oaths pre¬ 
scribed, and entered upon the discharge of the duties of their respective offices. The 
election of the other State officers was also duly declared, and said officers afterward 
entered upon the discharge of the duties of their several offices. 


SYKES YS. SPENCER. 


623 


These proceedings of the two houses of the capitol legislature were had in fulfillment 
ol duties imposed by the constitution of Alabama on the general assembly of the State— 
duties essential to the regular and orderly transmission of the executive offices from the 
possession of incumbents whose terms have expired to their legally elected successors 
in office. This is one of the most important functions devolved upon the legislature, and 
it® honest performance secures the existence of legitimate executive government in the 

No suggestion has been made from any quarter that in counting the returns and de¬ 
claring the election of the governor, lieutenant-governor, and other State officers the 
capitol legislature exceeded its authority or did not act fairly and impartially. 

The said legislature during its existence enacted at least one statute, which is still a 
law of the State, and the validity of which has never been called in question, and, at 
the time and in the manner prescribed by the act of Congress, proceeded to elect a Sen¬ 
ator from the State of Alabama to the Congress of the United States, and on the 10th 
day of December, 1872, Francis W. Sykes, as hereinbefore stated, was elected such Sen¬ 
ator, in conformity with the provisions of the act of Congress aforesaid relating to the 
election of Senators. 

In the opinion of the undersigned, no element was wanting essential to the validity 
of the election of the contestant, Mr. Sykes, or the legal existence of the legislature 
that elected him; they therefore declare it as their judgment, based upon a thorough 
and careful investigation of every question of law or fact that could arise in the case, 
that Francis W. Sykes, on the said 10th day of December, 1872, was legally elected a 
Senator from the State of Alabama for the constitutional term commencing on the 4th 
day of March, 1873, and is entitled to the seat now held by the Hon. George E, Spencer. 

The lawfulness of the capitol legislature cannot be denied or the validity of its acts 
questioned, because a minority of the persons holding certificates of election from the 
secretary of state, and entitled to seats therein, chose factiously or otherwise to absent 
themselves and to assemble at a different place. 

The senate chamber and the hall of the house of representatives in the capitol, erected 
at the public expense and dedicated to the use of the senate and house, and used ex¬ 
clusively by the two houses respectively during the sessions of preceding legislatures, 
were the proper, usual, and fitting places for the assembling of the two houses of the 
general assembly. No justification or excuse can be found for the action of the persons 
entitled to seats therein as members in absenting themselves from the hall dedicated to 
the use of the bodies in which they were entitled to be seated. No violence, threats, 
or intimidation is alleged to have prevented them from so doing. 

The lieutenant-governor was present at the senate chamber, and the speaker of the 
last house of representatives was in the hall of the house on the day prescribed by law 
for the annual meeting of the general assembly, for the purpose of assisting in the or¬ 
ganization of the respective houses in obedience to the requirements of the constitution 
of the State. In these halls the people of Alabama expected all persons entitled to 
seats as members in either house to be present and qualify as legislators. By clear im¬ 
plication of law it was their duty to do so, and their failure to perform that duty cannot 
derogate from the rightful authority of the legislature there assembled, or impair the 
validity of any act done in pursuance of the legislative power with which it was clothed. 
The absence of any number of persons entitled to seats in a legislative body, or their 
refusal to act with the body, from whatever cause such absence or refusal might occur, 
could not prevent the organization of the body or render its action illegal, provided a 
quorum was present, and the organization took place in accordance with the require¬ 
ments of the constitution and the laws of the State. 

If this is not true, then it follows that a factious minority may, by the mere refusal to 
qualify and participate in the organization of the legislature, destroy or suspend the 
action of the law-making department of the government at its pleasure. Such a posi¬ 
tion carried to its logical conclusion would place it in the power of one member-elect of 
the legislature to defeat the organization of the body to which he was elected by refus¬ 
ing to participate therein, and thus overthrow good government in the State. Absurd as 
such a proposition may seem, it could be sustained by the same arguments that deny to 
the capitol legislature the character of being the general assembly of the State of Ala¬ 
bama. 

Nor can the fact that some of the persons holding the certificates of election, issued 
by the secretary of state, and seated thereon in the capitol legislature may not have 
been elected to such places by the votes cast at the election, impair the validity of the 
organization of the senate and house of representatives constituting the capitol legis¬ 
lature. 

Every member who took his seat in either house presented the only evidence of his 
right to a seat required by the laws of the State, and such evidence entitled him to a 
seat in the house to which he was accredited until it should be made to appear by a 
contest that his right was not good. 


624 


SENATE ELECTION CASES. 


For contesting the seat of any member of either house of the general assembly the 
laws of Alabama fully provide, and every person claiming a seat in either house may, 
if entitled thereto, obtain the same upon a contest made in accordance with law. But 
until such contest is successfully made the person seated as a member upon the certifi¬ 
cate of election issued by the secretary of state has all the constitutional and legal rights 
of a member of the legislature. His acts and the acts of the body of which he is a 
member are as valid and binding as though he had been elected by the unanimous vote 
of the electors of his county or district. 

It is not alleged or insinuated that any member of either house of the capitol legis¬ 
lature holds the certificate upon which he was admitted to a seat by reason of any fraud, 
artifice, or contrivance of his own; but if such had been the fact, or if any member of 
the said legislature seated on such certificate had not in fact been elected, it was a mat¬ 
ter over which the said legislature had exclusive cognizance, and into which the Senate 
cannot properly inquire. 

Each house of the general assembly of Alabama is the exclusive judge of “the elec¬ 
tion returns and qualification of its members, ’ ’ and any inquiry into such question by 
the Senate of the United States would be as unwarranted by precedent as it would prove 
dangerous in practice. 

In a contest like the one now under consideration, between two persons elected to the 
Senate by different bodies, each claiming to be the legislature of the State, the Senate 
may look into the constitution and laws of the State to ascertain which of the two bodies, 
if either, has been organized in conformity with their provisions, but it cannot rightfully 
inquire into the election returns and qualifications of the members of either body. 

If the Senate could enter upon such inquiry, where would be the limitation upon its 
prerogatives? Could it not just as legitimately inquire into the manner in which any 
election officer had performed the duties of his office, and even into the qualification of 
the electors who had voted for members of the State legislature? 

The undersigned would not restrict the Senate in its constitutional right to judge of 
the election returns and qualifications of its own members, but would regret its assump¬ 
tion of powers belonging exclusively to the two houses of the State legislature. 

It may be true that persons will sometimes be returned members of the legislature 
through the failure of election officers to make the proper returns, but the person de¬ 
prived of his seat in the legislature by reason of such failure has his remedy in a contest 
before the body to which he may have been elected. Such contests are neither unusual 
nor improper. It is the mode pointed out in the laws of every State for the correction of 
such errors, and in none more fully than in the laws of Alabama. The failure of any 
person or number of persons, deprived of their seats in the legislature by the default of 
election officers to make such contests, would not justify an inquiry into the matter by 
the Senate of the United States. The person so returned would have all the rights, and 
could properly perform all the duties, of any other member until deprived of his seat in 
the mode pointed out by law. A contrary doctrine has never received the assent of any 
respectable court or any legislative body in this land. 

If we should go further, and, for the sake of argument, admit it to be true, as alleged, 
that the members from Marengo and Barber Counties seated in the capitol legislature 
upon certificates issued by the secretary of state were not in fact elected to the legisla¬ 
ture by the votes actually cast at the election, still we confidently assert that the returns 
of election made by the supervisors of election, who are made judges of the facts by the 
laws of Alabama, and the certificate of their election, entitled them to be seated as mem¬ 
bers, and to hold their seats until displaced upon a contest, and that, as such, every act 
they performed was as valid as though they had received every vote cast at the election. 

Let us now look at the facts connected with the organization and history of the assem¬ 
blage of persons who met at the United States district court-rooms, and known as the 
court-house legislature. It met on the day fixed by law for the meeting of the general 
assembly. No public notice, through the papers or otherwise, was given of an inten¬ 
tion on the part of any persons claiming to have been elected to the legislature to meet 
at that place, and no information was given to the lieutenant-governor, speaker of the 
last house of representatives, or any of the members-elect, other than those there assem¬ 
bled, of such purpose. No previous legislature had ever held its sessions at the court¬ 
rooms, which belonged to the United States and not to the State of Alabama, and no 
person holding a certificate as a member of either house other than those who there 
assembled could possibly have deemed it a proper and appropriate place for the meeting 
of the legislature. 

The senate of the court-house legislature consisted of fourteen persons holding certifi¬ 
cates of election as senators, issued by the secretary of state, and of five other persons 
(enough to constitute a quorum of a full senate) who held no such certificates. Their 
deliberations were presided over by one of their number, chosen as temporary president 
during the organization, and until after the lieutenant-governor-elect had been inducted 


SYKES VS. SPENCER. 


625 


into office. This body never had more than fourteen members (less than a quorum) 
holding certificates of election issued by the secretary of state in pursuance of law, and 
at no time had a quorum of the persons actually elected to the State senate. 

The house of representatives at the court-rooms consisted of forty-six persons, to whom 
certificates of election as members of the house of representatives had been issued by the 
secretary of state, in pursuance of law, and of a sufficient number of other persons, hold¬ 
ing no such certificates, to constitute a quorum of a full house of representatives. Some 
of the persons seated as members in this body had not been elected members of the legis¬ 
lature, and made no claim as such to seats in the fusion legislature, afterward organized 
under the plan proposed by the Attorney-General of the United States. 

Immediately after the organization of the two houses of the court-house legislature, a 
joint committee was appointed to wait upon Governor Lindsay, and inform him of their 
readiness to receive any communication from him. The governor rightfully declined to 
recognize them as the general assembly, and sent his annual message, as before stated, 
to the capitol legislature. 

Governor Lewis, after being legally inducted into office by the proceedings hereinbe¬ 
fore stated in the capitol legislature, co-operated with the assemblage of persons at the 
court-rooms, and professed to regard them as a de facto legislature. 

The ground upon which Mr. Spencer, who was elected by this court-house body, pred¬ 
icates its claim to recognition by the Senate as the rightful legislature of Alabama, is 
not that it existed in conformity with the provisions of the constitution and laws of the 
State, but upon the unsustained allegation that a majority of the members, both of the 
senate and house, some of whom held no certificates of election, were elected by a ma¬ 
jority of the votes cast in their respective counties and districts. 

If the truth of such allegation was a legitimate subject of inquiry in this body; if the 
Senate of the United States could properly judge of the election of members of a State 
legislature (which the undersigned most emphatically deny), it would not be difficult to 
demonstrate that the court-house senate at no time had a quorum of members elected by 
the voters of the senatorial districts in which they reside. 

Those who assert that the members at the court-house legislature were elected by the 
votes cast rely on the fact that persons holding no certificates of election, and who were 
members of the court-rooms, were afterward admitted to seats in the fusion legislature. It 
will be remembered that the fusion of the capitol and court-house legislatures took place 
upon an arbitrary plan proposed by the Attorney-General of the United States, leaving to 
persons claiming seats the right to make a contest for the same. 

Without going into the history of its proceedings it is sufficient to state that Mr. Mil¬ 
ler, who was a member of the court-house senate, holding no certificate of election, and 
whose presence was necessary to constitute a quorum, and who voted for Mr. Spencer, 
was, by proceedings the most arbitrary, illegal, and tyrannical, admitted to a seat in the 
fusion legislature as a senator from the senatorial district composed of Butler and Conecuh 
and part of Escambia Counties over Mr. Martin, who held the certificate of election, and 
who has received a large majority of the votes cast for senator at the election. This arbi¬ 
trary and tyrannical proceeding to seat Mr. Miller in the fusion senate was doubtless 
deemed necessary to give color to his participation in the senate at the court-rooms, 
which, without Ms presence, had no quorum of members claiming to have been elected. 

The legality of the court-house legislature and the validity of its proceedings depend 
not upon what took place in the fusion legislature, but must rest upon its own conform¬ 
ity to the provisions of the constitution and laws of the State. Tested by these require¬ 
ments, it can claim no higher character than that of a revolutionary body organized in 
contempt of the constitution and laws of Alabama and in disregard of good order and 
legitimate government in the State. 

An argument was made before the committee in favor of the legality of the court¬ 
house legislature drawn from the fact that a joint resolution was passed in the fusion 
house of representatives declaring in substance that the court-house legislature was the 
lawful general assembly of the State. 

This resolution, which did not pass the senate, was voted for in the house only by 
members of the court-house body seated in the fusion legislature, and was an abortive 
attempt to justify and render valid their own illegal proceedings. It is submitted that 
no subsequent declaration, by one or both of the two houses of the fusion legislature, 
could have had the effect to render that legal which was before illegal. Much less could 
an attempt on the part of one house to do so have that effect. At best it was but the 
vain effort of persons whose previous action was irregular and revolutionary to condone 
their own contempt and disregard of the constitution and laws of the State. This argu¬ 
ment, feeble as the cause it is intended to sustain, is unworthy of consideration, and we 
pass it without further notice. 

It was alleged in argument before the committee that the observance of the provision 
of the constitution requiring the lieutenant-governor to preside in the senate, and the 

S. Doc. 11-40 



626 


SENATE ELECTION CASES. 


presidency of the speaker of the last house of representatives in the house, the meeting 
of the general assembly in the State capitol, and the issuing of certificates of election to 
members of the legislature by the secretary of state, based upon returns made to him 
by the supervisors of election, was not necessary to constitute a valid legislature, but 
that these provisions are mere matters of form which may be dispensed with at pleasure. 

The undersigned cannot concur in views so narrow of constitutional and legal require¬ 
ments, and while admitting that in the presence of overwhelming and absolute necessity 
matters of form, even when prescribed by law, may be dispensed with, yet in the ab¬ 
sence of any such necessity what might otherwise be treated as matters of form, if 
prescribed by the constitution and laws of the State, become matters of substance not 
to be disregarded, but must be strictly observed. In the present case no such necessity 
can be pleaded. Party exigency alone prompted and is brought forward to sustain the 
utter disregard by the court-house legislature of requisites prescribed by the constitution 
and laws of Alabama and designed to perpetuate legitimate government in the State. 

Are these requisites, deemed of sufficient importance to be incorporated into the con¬ 
stitution and laws of the State, to be degraded to mere matters of form, the observance 
of which may be disregarded at the suggestion of party interest? It might with the 
same truth be contended that the taking of the prescribed oaths of office by members of 
the legislature may be dispensed with, or that the execution of bonds required to be 
given by a public officer before entering upon his office are mere matters of form. 

Let us turn to the law of Alabama relating to the issuing by the secretary of state of 
certificates of election to members of the legislature, to see whether it is only matter of 
form, to which no importance is attached. 

Section 35 of the law of October 8, 1868, hereinbefore referred to, makes it the duty 
of inspectors of elections to count the votes polled and certify the poll-list, seal up the 
boxes containing the ballots and poll-list, and deliver them to a returning officer to be 
delivered to the judge of probate for the county. 

Section 36 of said law constitutes the judges of probate, sheriffs, and clerks of the 
circuit court boards of supervisors of election, and makes it their duty to open, compare, 
and count the ballots cast at the election; and the next succeeding section confers upon 
them power and makes it their duty to reject illegal and fraudulent votes. 

Section 38 makes it the duty of the board of supervisors, within five days after receiv¬ 
ing the said boxes containing the ballots and poll-lists, to certify the number of votes 
cast in the county for each person, stating the office he is voted for, and to forward such 
certificate (except for certain named officers) to the secretary of state to be filed in his 
office. These are the steps to be taken preliminary to the issuing of certificates by the 
secretary of state. 

Section 42 of the said law, hereinbefore recited, makes it the duty of the secretary, 
within ten days after receiving the returns and certificates of the supervisors of election, 
to issue certificates of election to the person shown by said returns to have been elected. 

Is this all matter of form ? Is there no meaning to be attached to these provisions of 
law for ascertaining who has been elected to the general assembly ? Why, then, the 
provisions of law imposing penalties upon the election officers and the secretary of state 
for neglecting the performance of the duty imposed? 

We admit that the^legislature of the State, upon a contest for a seat in either house, 
may go behind the certificates and inquire into the facts of the case, but that is a right 
conferred by the constitutional provision making each house “the judge of the elections, 
returns, and qualifications of its members. ’ ’ 

The right of any number of the members-elect to the legislature to disregard these 
provisions of the law and treat them as nullities cannot be conceded. The same board 
of supervisors of election that certified to the secretary of state the election of members 
of the general assembly also certified under provision of law the vote for governor, 
lieutenant-governor, treasurer, and other State officers to the presiding officer of the 
senate, who opened and published the result, as before mentioned. 

What would be thought of the opposing candidates for these offices who would at¬ 
tempt to disregard the certificates of the supervisors and the ascertainment of the result 
of the election in the manner prescribed by law, claiming that they were mere matters 
of form, and attempt to seize the offices for which they had been candidates on the 
allegation that they had been elected by the votes of the electors ? 

No one would sustain such revolutionary action, even if it was certain that the allega¬ 
tion was true. Their remedy would be by contests for the offices, under the provisions 
of law. And until that remedy had been tried, no one would justify a resort to other 
means, even to correct an admitted wrong. Such revolutionary action, however, would 
not be less indefensible than the conduct of the court-house assemblage. Indeed, they 
stand on precisely the same ground, and any mode of argumentation that can justify the 
one might be employed to sustain the other. 

It is only by construing the constitutional and legal provisions relating to the organi- 


SYKES YS. SPENCER. 


627 


zation of the general assembly as mere matters of form that the supporters of the court¬ 
house legislature can attempt to justify its action or claim for it the recognition of the 
Senate; yet no position could be more untenable, unsound, or irrational. Every provision 
ol the constitution and laws of Alabama relating to the election of members of the legis¬ 
lature might with the same propriety be treated as mere form; the registration of voters, 
the appointment ot inspectors and other officers to conduct the election—the voting by 
ballot, the keeping of poll-lists, the counting of the votes, in short, everything required 
by the constitution and laws ot Alabama for guarding the election and ascertaining the 
lesult might be dispensed with as matters of form, for the same reasons that you can dis¬ 
pense with the returns and certificates required to be made by the inspectors and boards 
of supervisors of election, and the certificates in conformity therewith required to be 
issued by the secretary of state. 

The fact that provision is made by law for contesting the seats of members of the leg¬ 
islature seated upon the returns and certificates referred to by persons claiming to have 
been elected, is a conclusive argument against the position that said returns and certifi¬ 
cates are matters of form only, and may be disregarded at pleasure. The law attaches to 
said certificates such importance that a contest is required to show that they are not cor¬ 
rect . ^is is the effect given to such returns and certificates by the laws of Alabama. 

VVhile, however, these provisions of law for contesting the right of members of the 
legislature admitted to seats upon the evidence of such returns and certificates demon¬ 
strate that they are not matters of form merely, they furnished the remedy, and the only 
legal remedy, for opposing candidates who claimed to have been elected to the general 
assembly. 

So far as the court-house members who held certificates of election were concerned, 
there was no necessity for a contest; they had the right, and would have been admitted 
to seats in the capitol legislature upon the presentation of such certificates; and, had 
there been a majority of Republican members who had certificates of election, they doubt¬ 
less would have been present at the capitol and taken their seats as members. The fact 
that they were in a minority could not release them from the obligation of obeying law 
or justify their contempt of its provisions. Every sentiment of patriotism and every con¬ 
sideration arising from citizenship, no less than the duty imposed by the position to which 
they had been elected, united in demanding their obedience to the laws of their State. 
In refusing that obedience, and disobeying the fundamental and statute laws of Alabama, 
they assumed the attitude of revolutionists, and put in jeopardy the peace and good order 
of society. 

No party exigency can excuse such perfidy or condone its criminality. It was an utter 
disregard of law which this Senate cannot properly indorse by recognizing the court¬ 
house assemblage as the legislature of the State. 

Such proceedings would have met with stern rebuke in the earlier days of the Republic, 
and can only now find countenance and sympathy from that toleration of lawlessness 
which looks with indifference, if not approval, upon the overthrow of legitimate govern¬ 
ment and the substitution of a despotism supported by Federal power in one of the States 
of this Union. 

The refusal to give to Mr. Sykes the seat which he claims in this body would be a decla¬ 
ration on the part of the Senate that the legislature that elected him was not the lawful 
general assembly of the State; that the constitutional provision requiring the lieutenant- 
governor to preside in the senate has no meaning; that no importance attaches to the 
returns made by the supervisors of elections as required by law, or to the certificates of 
election issued to members by the secretary of state in conformity with such returns; 
that the legal ascertainment of who constitute the members of the respective houses of 
the legislature and every requirement of law for such ascertainment were unnecessary 
and might be dispensed with in the organization of the two houses; that no significance 
attaches to the provisions of law for the erection of a State capitol and the appropriation 
of halls therein for the senate and house of representatives; in short, that the observance 
of constitutional and legal requirements is wholly unnecessary and notessential to the legal 
existence of legislative bodies in the State of Alabama. Mr. Sykes was elected by a legis¬ 
lature met in pursuance of every requirement of law. No one disputes that the lieu¬ 
tenant-governor presided in the senate and the speaker of the last house of representatives 
in the house at the capitol. No one denies that the members of the two houses assembled 
at the proper time and in the halls set apart for the use of the respective houses of the 
legislature. No one denies that every member of each house produced the certificate of 
his election, issued by the secretary of state in conformity with the returns made to him 
by the supervisor of elections. No one denies that a quorum admitted to seats upon such 
certificates were present in both houses, and participated in their proceedings and in the 
joint convention that elected Mr. Sykes to the Senate. With these requirements fulfilled 
by the capitol legislature, it would be impossible to put any other construction on the 
rejection of Mr. Sykos than that the Senate does not deem compliance with law in the 


628 


SENATE ELECTION CASES. 


organization of th 3 legislature of the State essential to its legal existence or the validity 
of its acts. On the other hand, the retention of Mr. Spencer, elected by a body of men 
assembled without warrant of law, at a place not designated for the meeting of the gen¬ 
eral assembly, with less than a quorum of persons in either house, holding certificates of 
election issued in pursuance of law and presided over by persons other than those desig¬ 
nated in the constitution as the presiding officers of the two houses of the legislature, 
would be an unequivocal declaration on the part of the Senate of the United States that 
a revolutionary body of men may constitute itself the legislature of Alabama, and perform 
the functions appertaining to the general assembly of the State. 

The enunciation of such a doctrine, either expressly or by implication, arising from the 
retention of Mr. Spencer in the position he occupies, would subject the Senate to the sus¬ 
picion in the popular mind of being governed in its decision by party predilection. Un¬ 
just as such a suspicion might be, the preservation of its own dignity demands that no 
occasion shall occur from which it could possibly arise. No higher duty devolves upon 
the Senate than the preservation of its own character from reproach. Within the last 
few years it has suffered in public esteem from causes which it is unnecessary to name, 
and it is to be hoped nothing in connection with this contest may occur to weaken its 
claim to the respect and confidence of the country. 

The decision of this contest against Mr. Sykes, elected by a legislature assembled with 
all the forms of law, and in favor of Mr. Spencer, elected by a legislature convened in 
contempt of law, would encourage faction and invite to revolution in every State of the 
Union in which political parties are about equal in numerical strength. The defeated 
party, basing its action on allegations of fraud, instead of pursuing the remedy pointed 
out by law, will seek the correction of its real or fancied wrongs by imitating the exam¬ 
ple of the court-house legislature of Alabama. For the justification of its action, it could 
point to the indorsement by the Senate of the proceedings of that revolutionary body. 
By recognizing the capitol legislature, however, and deciding the contest in favor of Mr. 
Sykes, the Senate would administer a just rebuke to lawlessness, promote public order 
and morality, and enforce the observance of law in the organization of legislative bodies 
throughout the land. 

Much more important considerations are involved in this contest than the mere ques¬ 
tion which of the persons claiming shall be allowed to sit as a member in this body. If 
that was the single question to be decided, it would be worthy of the most careful and 
deliberate action of the Senate. Private rights ought not to be hastily or inconsiderately 
determined, but should be as carefully guarded and preserved by the decision of this 
body as they would be by the judgment of the highest legal tribunal in the land. Im¬ 
portant, however, as the question of personal rights may be, it dwindles into insignifi¬ 
cance in view of the graver consequences to result from the determination of this contest 
by the Senate. Presented in this issue is the broad question whether, in one of the 
States of this Union, legitimate legislative government, sanctioned by every requirement 
of the constitution and laws of the State, can be superseded by faction, and a revolution¬ 
ary body, met without the forms and in contempt of law, receive the approval and sanc¬ 
tion of the Senate as the lawful general assembly of the State. 

This is the grave question which must be decided in the determination of the contest 
now before the Senate. Upon that decision may depend, in no small degree, the preser¬ 
vation of future peace and harmony, not only in Alabama, but in every State of the 
Union. In disposing of this case, no encouragement should be given, directly or indi¬ 
rectly, to a disregard of law; but in its action in the matter before it the Senate should 
teach the wholesome lesson that a due observance of the provisions of law is alike the 
duty and interest of every citizen, whether acting in a private or public capacity, and 
that no attempt to ignore or evade its requirements can meet the approval or be sus¬ 
tained by the American Senate. 

The State of Alabama has a right to be represented on this floor by a Senator chosen 
by the legislature of the State organized in conformity with the requirements of her con¬ 
stitution and laws. That right would be secured in the admission of Mr. Sykes. The 
undersigned therefore respectfully submit the following resolution and recommend its 
adoption: 

Resolved , That Francis W. Sykes, having been duly and legally elected a Senator from 
the State of Alabama for the constitutional term commencing March 4, 1873, is entitled 
to the seat in this body now held by the Hon. George E. Spencer. 

ELI SAULSBURY. 

WILLIAM T. HAMILTON. 

Wednesday, May 27, 1874. 

On motion by Mr. Hamilton, of Maryland, the Senate proceeded to consider the reso¬ 
lution reported by the Committee on Privileges and Elections, to whom was referred 
the memorial of Francis W. Sykes, claiming a seat in the Senate as Senator from the 
State of Alabama, viz: 


SYKES YS. SPENCER. 


629 


“ Resolved , That the Committee on Privileges and Elections be discharged from the 
further consideration of the memorial of Francis W. Sykes. ’ 1 
An amendment to the resolution having been proposed by Mr. Hamilton, of Maryland, 
Pending debate, 

On motion by Mr. Conkling, the Senate proceeded to the consideration of executive 
business. 

[The debate is found on pages 4287-4290 of the Congressional Record, vol. ii, part 5. 
Mr. Hamilton’s speech is found on pages 323-331 of the Appendix, vol. ii, part 6.] 

Thursday, May 28, 1874. 

The President pro tempore announced that the morning hour had expired and called 
up the unfinished business of the Senate at its adjournment yesterday, viz, the reso¬ 
lution reported by the Committee on Privileges and Elections, to whom was referred the 
memorial of Francis W. Sykes, claiming a seat in the Senate as a Senator from the State 
of Alabama, as follows: 

“ Resolved , That the Committee on Privileges and Elections be discharged from the 
further consideration of the memorial of Francis W. Sykes.” 

The Senate resumed the consideration of the said resolution. 

On motion by Mr. Hamilton, of Maryland, to amend the resolution by striking out all 
after the word ‘ 1 resolved ’ ’ and in lieu thereof inserting— 

‘ ‘ That the Hon. George E. Spencer, not having been elected a Senator from the State 
of Alabama by the lawful legislature of that State, is not entitled to a seat in this body, ” 
After debate, 

It was determined in the negative—yeas 11, nays 33. 

On motion by Mr. Hamilton, of Maryland, the yeas and nays being desired by one-fifth 
of the Senators present, 

Those who voted in the affirmative are Messrs. Bayard, Bogy, Davis, Hager, Hamilton of 
Maryland, Hamilton of Texas, Johnston, McCreery, Merrimon, Ransom, and Saulsbury. 

Those who voted in the negative are Messrs. Alcorn, Anthony, Boreman, Carpenter, 
Chandler, Clayton, Conkling, Conover, Dorsey, Ferry of Michigan, Flanagan, Freling- 
huysen, Gilbert, Harvey, Howe, Ingalls, Logan, Mitchell, Morrill of Maine, Morrill of 
Vermont, Morton, Oglesby, Patterson, Pratt, Ramsey, Scott, Sherman, Sprague, Stewart, 
Wadleigh, Washburn, West, and Wright. 

So the amendment was not agreed to. 

On motion by Mr. Hamilton, of Maryland, to amend the resolution by striking out all 
after “resolved ” and in lieu thereof inserting— 

“That Francis W. Sykes, having been duly and legally elected a Senator from the 
State of Alabama for the constitutional term commencing March 4, 1873, is entitled to 
the seat in this body now held by the Hon. George E. Spencer,” 

It was determined in the negative. 

The question recurring on the resolution reported by the Committee on Privileges and 
Elections, viz: 

“ Resolved , That the Committee on Privileges and Elections be discharged from the 
further consideration of the memorial of Francis W. Sykes,” 

On the question to agree thereto, it was determined in the affirmative. 

[The debate is found on pages 4325-4330 of the Congressional Record, vol. ii, part 5.] 

COMPENSATION OF MR. SYKES. 

[First session of the Forty-third Congress.] 

Thursday, May 28,1874. 

Mr. H amil ton, of Maryland, submitted the following resolution; which was referred 
bo the Committee on Privileges and Elections: 

11 Resolved, That Francis W. Sykes, late contestant for a seat in this body from the 
State of Alabama, be allowed the salary of a Senator from the 4th of March, 1873, up to 
the 28th day of March, 1874, and one mileage each way.” 

Friday, June 5, 1874. 

On motion by Mr. Hamilton, of Maryland, the Senate proceeded to consider the reso- 
lution submitted by him on the 29th of May last, directing the Secretary of the Senate 
to pay certain compensation to Francis W. Sykes, late claimant of a seat in the Senate 
as a Senator from the State of Alabama; and 

An amendment having been proposed by Mr. Carpenter, 

Pending debate, 

Ordered, That the further consideration of the said resolution be postponed to to¬ 
morrow. . , 

[The debate is found on pages 4596-4598 of the Congressional Record, vol. ii, part 5.] 


630 


SENATE ELECTION CASES. 


Wednesday, June 10, 1874. 

On motion by Mr. Hamilton, of Maryland, the Senate resumed the consideration ol 
the resolution reported by him from the Committee on Privileges and Elections, on the 
29th instant, directing the Secretary of the Senate to pay certain compensation to Francis 
W. Sykes as a claimant to a seat in the Senate as a Senator from the State of Alabama. 

An amendment having been proposed by Mr. Carpenter, and an amendment to the 
amendment having been proposed by Mr. Hamilton, of Maryland, 

After debate, 

Ordered , That the further consideration of the said resolution be postponed to to¬ 
morrow. 

[The debate is found on pages 4798-4800 of the Congressional Record, vol. ii, part 5.] 

Thursday, June 11, 1874. 

On motion by Mr. Hamilton, of Maryland, the Senate resumed the consideration of 
the resolution reported by him from the Committee on Privileges and Elections, on the 
29th May last, viz: 

“Resolved , That the Secretary of the Senate be, and he is hereby, authorized and di¬ 
rected to pay to Francis W. Sykes, late contestant from the State of Alabama, out of the 
appropriations for compensation and mileage for Senators, the sum of $8,374.80, being 
the salary of a Senator from the 4th day of March, 1873, to the 28th day of May, 1874, 
inclusive. ’ ’ 

On motion by Mr. Carpenter to amend the resolution in lines 4 and 5 by striking out 
“ $8,374.80, being the salary of a Senator from the 4th day of March, 1873, to the 28th 
day of May, 1874, inclusive,” and in lieu thereof inserting “ $3,000;” 

On motion by Mr. Hamilton, of Maryland, to amend the amendment by striking out 
“$3,000” and in lieu thereof inserting “$6,500,” 

After debate, it was determined in the negative—yeas 25, nays 32. 

On motion by Mr. Hamilton, of Maryland, the yeas and nays being desired by one- 
fifth of the Senators present, 

Those who voted in the affirmative are Messrs. Alcorn, Antnony Bayard, Bogy, Conover, 
Cooper, Davis, Goldthwaite, Gordon, Hager, Hamilton of Maryland, Johnston, Kelly, 
Logan, McCreery, Merrimon, Morton, Norwood, Patterson, Ramsey, Ransom, Saulsbury, 
Stockton, Thurman, and Tipton. 

Those who voted in the negative are Messrs. Allison, Boreman, Boutwell, Bucking¬ 
ham, Cameron, Carpenter, Chandler, Conkling, Cragin, Edmunds, Ferry of Michigan, 
Frelinghuysen, Gilbert, Hamilton of Texas, Hamlin, Harvey, Howe, Ingalls, Mitchell, 
Morrill of Maine, Morrill of Vermont, Oglesby, Pease, Pratt, Sargent, Sherman, Sprague, 
Stewart, Wadleigh, Washburn, Windom, and Wright. 

So the amendment to the amendment was not agreed to. 

The question recurring on the amendment of Mr. Carpenter, 

Ordered , That the further consideration of the said resolution be postponed to to¬ 
morrow. 

[The debate is found on pages 4850-4852 of the Congressional Record, vol. ii, part 5.] 
[Second session of the Forty-third Congress. | 

Wednesday, December 23, 1874. 

On motion by Mr. Hamilton, of Maryland, 

Ordered , That the resolution directing the Secretary to pay Francis W. Sykes the sal¬ 
ary of a Senator while contesting a seat in the Senate be recommitted to the Committee 
on Privileges and Elections. 

Wednesday, March 3, 1875. 

Mr. Hamilton, of Maryland, from the Committee on Privileges and Elections, reported 
the following resolution: 

‘ ‘Resolved , That the Secretary of the Senate be, and he is hereby, directed and author¬ 
ized to pay to Francis W. Sykes, late contestant from the State of Alabama, the pay and 
mileage of a Senator from the 4th day of March, 1873, to the 28th day of May, 1874.” 

[First session of the Forty-fourth Congress.] 

Thursday, February 3, 1876. 

Mr. Saulsbury submitted the following resolution; which was referred to the Com¬ 
mittee on Privileges and Elections: 

* “Resolved , That the Secretary of the Senate be, and he is hereby, authorized and di¬ 

rected to pay to Francis W. Sykes, late contestant from the State of Alabama, the pay 
aud mileage of a Senator from the 4th day of March, 1873, to the 28th day of May, 1874. ’ ’ 


SYKES YS. SPENCER. 


631 


Wednesday, March 8, 1876. 

Mr. Cooper, from the Committee on Privileges and Elections, to whom was referred 
the resolution of Mr. Saulsbury, submitted on the 3d of February last, to pay Francis 
W. Sykes the compensation and mileage of a Senator from the 4th day of March, 1873, 
to the 28th day of May, 1874, reported it without amendment, and submitted a report 
(No. 135) thereon. 


EEPOET OF COMMITTEE. 

In the Senate of the United States. 

Maech 8, 1876.—Ordered to be printed. 

Mr. Cooper, from the Committee on Privileges and Elections, submitted the following 
report: 

The Committee on Privileges and Elections, to whom was referred Senate resolution 
No. 10, to pay Francis W. Sykes the compensation and mileage of a Senator from the 
4th day of March, 1873, to the 28th day of May, 1874, have had the same under consid¬ 
eration, and submit the following report: 

The rule established by the Senate in cases similar to the present one has been uni¬ 
form. A person applying for a seat in this body by reason of an election by the legisla¬ 
ture of a State, although his application has been refused, and another adjudged entitled 
to the seat, has been paid the amount he would have been entitled to receive if he had 
been admitted and served the time the contest was pending. The action of the Senate 
upon such cases has been with such great unanimity as to call for little or no debate. 
The reasons, therefore, upon which the rule is based can only be surmised. It may be 
said the person claims his seat in pursuance of an implied duty imposed upon him to thus 
assert the right of his State to be represented in this body, which duty he owes to the 
public, and that expenses incurred in the performance of a public duty should be paid 
out of the common treasury. 

A proper respect for the action of a State in the choice of a Senator may also justify 
the rule. 

The committee see nothing in the present case to take it out of the general rule; they 
therefore recommend the passage of the resolution. 

second investigation of me. spencee’s election. 

Thijesday, December 16, 1875. 

Mr. Spencer rose to a question of privilege, and, having addressed the Senate upon the 
subject of certain charges made in connection with his election as a Senator, submitted 
the following resolution; which was considered by unanimous consent, and agreed to: 

“Resolved , That the Committee on Privileges and Elections are hereby instructed to 
investigate into and inquire whether in the election of George E. Spencer as a Senator 
in Congress from the State of Alabama there were used, or caused to be used and em¬ 
ployed, corrupt means or corrupt practices to secure his election to the seat he now holds; 
and that said committee be empowered to administer oaths, to send for persons and 
papers, to take testimony, to employ stenographers and such clerical assistance as they 
may deem necessary, and to sit during the recess of Congress, if considered advisable, 
and to report the result of their investigations as soon as practicable. ’ ’ 

[The debate is found on pages 232, 233 of the Congressional Record, vol. iv, part 1.] 

Tuesday, January 18, 1876. 

Mr. Goldthwaite presented a report of the joint committee of the general assembly of 
Alabama, accompanied by a memorial and testimony, in regard to the alleged election of 
George E. Spencer as a Senator from that State; which was referred to the Committee 
on Privileges and Elections. 

Monday, January 24, 1876. 

Mr. Goldthwaite presented a memorial of the general assembly of the State of Ala¬ 
bama, praying that the seat in the United States Senate now held by George E. Spencer 
may be declared vacant; which was referred to the Committee on Privileges and Elec¬ 
tions. 

Feiday, March 3, 1876. 

Mr. Morton submitted the following resolution; which was read the first and second 
times by unanimous consent: 

“ Resolved , That the sum of $15,000 be appropriated from the contingent fund of the 


SENATE ELECTION CASES. 


632 

Senate to defray the expenses of the investigation into the facts attending the election 
of the Hon. George E. Spencer as a member of this body by the legislature of Alabama; 
to be disbursed on the warrant of the chairman of the Committee on Privileges and 
Elections.” 

The Senate proceeded to consider the said resolution as in Committee of the Whole; 
and no amendment being made, it was reported to the Senate. 

Ordered , That it be engrossed and read a third time. 

The said resolution was read the third time by unanimous consent. 

Resolved , That it pass. 

Wednesday, May 3,1876. 

Mr. Morton submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

11 Resolved , That 300 copies of the testimony taken in the investigation of the charges 
against George E. Spencer be printed for the use of the Senate.” 

Saturday, May 20,1876. 

Mr. Morton, from the Committee on Privileges and Elections, who were instructed by 
a resolution of the Senate of the 16th December last to investigate into and inquire 
whether in the election of George E. Spencer as a Senator in Congress from the State of 
Alabama there were used and employed corrupt means or corrupt practices to secure 
his seat he now holds; and to which committee was referred the memorial of the legis¬ 
lature of Alabama charging that George E. Spencer had not been legally elected a Sen¬ 
ator from that State, accompanied by a copy of certain testimony purporting to have been 
taken by a committee of said legislature, and a certain report of said committee thereon, 
submitted a report (No. 331) thereon, accompanied by the testimony taken by said Com¬ 
mittee on Privileges and Elections, and a request that the said committee be discharged 
from the further consideration of the subject. 

Mr. Saulsbury asked and obtained leave of the Senate to submit, on some subsequent 
day, the views* of the minority of the Committee on Privileges and Elections on the fore¬ 
going subject. 

REPORT OF COMMITTEE, t 

[The committee consisted of Messrs. Morton (chairman), Logan, Mitchell, Wadleigh, 
Cameron of Wisconsin, McMillan, Saulsbury, Merrimon, and Cooper.] 

In the Senate of the United States. 

May 20,1876.—Ordered to be printed. 

Mr. Morton, from the Committee on Privileges and Elections, submitted the following 
report: 

The Committee on Privileges and Elections beg leave to submit the following report: 

On the 16th day of December, 1875, the Senate adopted the following resolution: 

“ Resolved , That the Committee on Privileges and Elections be hereby instructed to 
investigate into and inquire whether in the election of George E. Spencer as a Senator 
in Congress from the State of Alabama there were used and employed corrupt means or 
corrupt practices to secure his election to the seat he now holds; and that the said com¬ 
mittee be empowered to administer oaths, to send for persons and papers, to take testi¬ 
mony, to employ stenographers and such clerical assistance as they may deem necessary, 
and to sit during the recess of Congress if considered advisable, and to report the result 
of their investigations as soon as possible.” 

Afterward a memorial from the legislature of Alabama, charging that Mr. Spencer had 
not been duly and legally elected, which was accompanied by a copy of the testimony 
purporting to have been taken by a committee of that legislature, and a report,of the 
committee upon the testimony, was also referred to the Committee on Privileges and 
Elections. 

This testimony was ex parte in its character, very much of it hearsay, and could not be 
received by the committee as evidence. 

The question whether Mr. Spencer was elected by the lawful legislature of Alabama, 
raised in the memorial referred to, and in the specifications filed before the committee 
by the counsel, Mr. Morgan, who represented the State of Alabama, was considered by 
a majority of the committee to have been fully settled in the contest for the seat occu¬ 
pied by Mr. Spencer, before made, in the Senate by Mr. Sykes. 

The question in that contest was whether what was known as the court-house legis- 

* The views of the minority referred to were never presented. 

t Taken from Senate Reports, 44th Cong., 1st sess., No.331. The testimony accompanying the 
report is here omitted. & 





SYKES VS. SPENCER. 


633 


lature, by which Mr. Spencer was elected, or the capitol legislature, by which Mr. Sykes 
was elected, was the lawful legislature of Alabama. After full consideration and argu¬ 
ment of counsel, it was determined by the committee and afterward by the Senate that 
the court-house legislature was the lawful one, and that Mr. Spencer and not Mr. Sykes 
was entitled to the seat. 

The question having been definitely settled, it was considered by the committee that 
it was not competent for the committee or the Senate to reopen it, and ihat it must be 
treated as res adjudicata. 

Upon the other branch of the inquiry, as to whether Mr. Spencer, or his friends, had 
been guilty of bribery, corruption, or other unlawful practices in procuring his election, 
the committee made faithful and diligent inquiry. Mr. Morgan, counsel for the accusers, 
subpoenaed and examined many witnesses, and, after the testimony was over, supported 
the charge against Mr. Spencer by a lengthy argument. 

Those charges were not proven in any respect. No witness testified that Mr. Spencer 
had given, directly or indirectly, or offered to give money, or anything of value, in con¬ 
sideration of votes, or support, in the Alabama legislature; nor was it shown that any of 
his friends had done so. Some hearsay testimony was offered to the effect that certain 
persons had said that they had received money in consideration for voting for Mr. Spen¬ 
cer for the Senate; but this testimony was ruled out by the committee. The persons 
alleged to have made these statements were competent witnesses, but were not produced, 
nor was it proven that any money had been paid to them for such a purpose by anybody, 
whether a known friend of Mr. Spencer or not. 

The counsel for the accusers complain strongly of the rejection of such testimony; but 
its illegality and worthless character were too plain to require argument, and had it 
been admitted it might have contributed to make some scandal, but would have proved 
nothing. Attempts were made to offer the hearsay statements against Mr. Spencer of 
persons who were not shown to have been engaged with him in any conspiracy to pro¬ 
cure his election by corruption or undue means, and by whose statements made in his 
absence he could not be bound by anyknowu principle of law, which were also rejected 
by the committee. 

While hearsay evidence was thus excluded, the door was thrown open widely to prove 
the payment of money by any person to any member of the legislature, or to be used 
with the legislature, to procure Mr. Spencer’s election, by any person, whether such per¬ 
son was shown to be a friend of Mr. Spencer or not. 

The committee deem it unnecessary to go into the full details of the case, and having 
thus given the general result, beg leave to be discharged from the further consideration 
of the resolution and memorial, and herewith submit copies of the testimony taken 
before the committee. 

BEIMBUBSEMENT OF MB. SPENCEB’S EXPENSES. 

Thubsday, December 18, 1884. 

Mr. Hoar presented a petition of George E. Spencer, late a Senator from the State of 
Alabama, praying to be reimbursed the amount necessarily incurred by him in defend¬ 
ing his title to a seat in the Senate; which was referred to the Committee on Privileges 
and Elections. 

FBIDAY, February 13, 1885. 

Mr. Hoar, from the Committee on Privileges and Elections, reported the following 
resolution for consideration: 

“ Resolved , That there be allowed and paid out of the contingent fund of the Senate 
to George E. Spencer, formerly a Senator from the State of Alabama, the sum of $7,132, 
being the amount actually and necessarily expended by him in maintaining his title to 
his seat.” 

Fbiday, February 20, 1885. 

On motion by Mr. Hoar, the Senate proceeded to consider the resolution given above, 
and it was 

Ordered , That it be referred to the Committee to Audit and Control the Contingent 
Expenses of the Senate. 

Tuesday, February 24, 1885. 

Mr. Jones, of Nevada, from the Committee to Audit and Control the Contingent Ex¬ 
penses of the Senate, to whom was referred the resolution (given above), reported it 
without amendment. 

Tuesday, March 3, 1885. 

On motion by Mr. Jones, of Nevada, the Senate proceeded to consider the resolution 
(given above), and 

Resolved , That the Senate agree thereto. 


634 


SENATE ELECTION CASES. 


[Special session of Senate, March, 1877.] 

L. Q. 0. LAMAR, 

Senator from Mississippi from March 6, 1877, till he resigned, March 9, 

1885. 


Mr. Lamar was first elected for the term beginning March 4,1877. Objection being made March 
5,1877, to the oaths of office being administered to him, his credentials were laid on the table. The 
following day, the credentials were taken from the table after debate, and he was sworn. It appears 
from the debates that the objections to the admission of Mr. Lamar were upon the ground that the 
“State government in Mississippi was a usurpation.” (An inquiry into alleged frauds in the 
election in Mississippi in November, 1875, had been made by a select committee and a report thereon 
submitted to the Senate August 7,1876.) Most Senators proceeded upon the ground that Mr. Lamar 
had at least a prima facie title to the seat and should be sworn, though it was claimed that this rule 
had not been followed in the case of Mr. Pinchback, of Louisiana. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journal, 2d sess. 44th Cong, (special session, March, 1877). 

The debate is found on pages 5-15 of the Congressional Record, vol. vi. 


Saturday, March 3, 1877. 

Mr. Alcorn presented the credentials of L. Q. C. Lamar, elected a Senator by the legis¬ 
lature of the State of Mississippi for the term of six years commencing March 4, 1877; 
which were read. 


Monday, March 5, 1877. 

Mr. Anthony submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

“ Resolved , That the credentials of Senators-elect in all disputed or contested cases 
lie upon the table until to-morrow.’’ 

Objection under the foregoing resolution having been made to the oaths of office being 
administered to Mr. L. Q. C. Lamar from Mississippi, whose credentials were heretofore 
presented, 

Ordered , That his credentials lie on the table. 

Tuesday, March 6, 1877. 

Mr. Wallace submitted the following resolution for consideration: 

“ Resolved , That the credentials of L. Q. C. Lamar, Senator-elect from the State ol 
Mississippi, be taken from the table and that he be sworn. ’ ’ 

Mr. Spencer called for the reading of a report made to the Senate at the first session of 
the Forty-fourth Congress, by the Committee on Privileges and Elections, on the subject 
of recent elections in the State of Mississippi. 

Mr. Wallace having objected to the reading of the said report, 

The Vice-President submitted the question to the Senate, Shall the report be read? 
and it was determined in the negative. 

The question recurring on the resolution of Mr. Wallace, 

On motion by Mr. Spencer to amend the resolution by striking out, in the last line 
thereof, the words “that he be sworn,” and in lieu thereof inserting “be referred to 
the Committee on Privileges and Elections when the committee shall be appointed,” 

On the question to agree thereto, 

After debate, it was determined in the negative—yeas 1, nays 58. 

On motion by Mr. Spencer, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

The Senator who voted in the affirmative is Mr. Wadleigh. 

Those who voted in the negative are Messrs. Allison, Anthony, Bailey, Barnum, Bay¬ 
ard, Beck, Blaine, Bogy, Booth, Bruce, Burnside, Cameron of Pennsylvania, Chaffee, 
Christiancy, Cockrell, Coke, Conkling, Conover, Davis of Illinois, Davis of West Virginia! 
Dawes, Dennis, Eaton, Garland, Gordon, Harris, Hereford, Hill, Hoar, Howe, Johnston! 
Jones of Florida, Jones of Nevada, Kernan Kirkwood, McCreery, McDonald, McMillan! 
McPherson, Maxey, Mitchell, Morton, Oglesby, Paddock, Patterson, Plumb, Randolph’ 
Ransom, Rollins, Saulsbury, Saunders, Sharon, Sherman, Teller, Thurman, Wallace’ 
Whyte, and Withers. 

So the amendment was not agreed to. 

The question recurring on the resolution of Mr. Wallace, 

On the question to agree thereto, 

After debate, it was determined in the affirmative—yeas 57, nays 1. 


L. Q. C. LAMAR. 635 

On motion by Mr. Spencer, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Allison, Anthony, Bailey, Barnum, 
Bayard, Beck, Blaine, Bogy, Booth, Bruce, Burnside, Chaffee, Christiancy, Cockrell, Coke, 
Conkling, Conover, Davis of Illinois, Davis of West Virginia, Dawes, Dennis, Eaton, Gar¬ 
land, Gordon, Harris, Hereford, Hill, Hoar, Howe, Johnston, Jones of Florida, Jones of 
Nevada, Kernan, Kirkwood, McCreery, McDonald, McMillan, McPherson, Maxey, Mitch¬ 
ell, Morrill, Morton, Oglesby, Paddock, Patterson, Plumb, Randolph, Ransom, Sauls- 
bury, Saunders, Sharon, Sherman, Teller, Thurman, Wallace, Whyte, and Withers. 

The Senator who voted in the negative is Mr. Wadleigh. 

So it was 

Resolved , That the credentials of L. Q. C. Lamar, Senator-elect from the State of Mis¬ 
sissippi, be taken from the table and that he be sworn. 

Whereupon 

The oaths prescribed by law were administered to Mr. Lamar by the Vice-President, 
and he took his seat in the Senate. 


SENATE ELECTION CASES. 


636 


[Special session of the Senate, March, 1877.] 

JOHN T. MOEOAN, 

Senator from Alabama from March 8, 1877. [June 1, 1892, still holding 

seat.] 

Mr. Morgan was first elected for the term beginning March 4,1877. Objection being made March 
5,1877, to the oaths of office being administered to him, his credentials were laid on the table. The 
credentials were taken from the table March 8, after debate, and he was sworn. It appears from the 
debate that objection was made to his admission on the ground that the legislature elected in August, 
1876—the one electing Mr. Morgan—had been fraudulently elected, and were not representatives of 
the people. (An investigation into the Alabama elections of 1876 had been made by the Commit¬ 
tee on Privileges and Elections, and a report thereon submitted to the Senate March 3,1877.) It 
further appears that the Senate proceeded upon the ground that Mr. Morgan had at least a prima 
facie title to the seat. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journal,44th Cong., 2d sess. (special session, March, 1877). 

The debates are found on pages 24-31 of the Congressional Record, vol. vi. 

Tuesday, February 27,1877. 

Mr. Gordon presented the credentials of John T. Morgan, elected a Senator by the 
legislature of Alabama for the term of six years commencing March 4,1877; which were 
read. 


Monday, March 5,1877. 

Mr. Anthony submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

“ Resolved , That the credentials of Senators-elect in all disputed or contested cases lie 
upon the table until to-morrow. ’ ’ 

Objection under the foregoing resolution having been made to the oaths of office being 
administered to Mr. John T. Morgan, from Alabama, whose credentials were heretofore 
presented, 

Ordered , That the credentials lie on the table. 

Wednesday, March 7,1877. 

Mr. Bayard submitted the following resolution for consideration: 

“ Resolved , That the credentials of John T. Morgan, Senator-elect from the State of 
Alabama, be taken from the table, and that he be sworn.” 

On motion by Mr. Morrill, the Senate proceeded to the consideration of executive 
business. 

Thursday, March 8,1877. 

The Senate resumed the consideration of the resolution yesterday submitted by Mr. 
Bayard, viz: 

“Resolved, That the credentials of John T. Morgan, Senator-elect from the State of 
Alabama, be taken from the table, and that he be sworn. ’ ’ 

On motion by Mr. Spencer, to amend the resolution by striking out, in the last line 
thereof the words “he be sworn,” and in lieu thereof inserting “they be referred to the 
Committee on Privileges and Elections when appointed,” 

After debate, it was determined in the negative. 

The question recurring on the resolution of Mr. Bayard, it was agreed to, as follows: 

“ Resolved , That the credentials of John T. Morgan, Senator-elect from the State of 
Alabama, be taken from the table, and that he be sworn.” 

Whereupon 

Mr. Morgnn appeared at the bar of the Senate, and the oaths prescribed by law having 
been admin stered to Mr. Morgan by the Vice-President, he took his seat in the Senate 


CORBIN YS. BUTLER, 


637 


[Special session of Senate, March, 1877, and Forty-fifth Congress. ] 

DAVID T. CORBIN vs. M. C. BUTLER, 
of South Carolina. 


February 13,1877, the credentials of Mr. Corbin, elected for the term beginning March 4,1877, were 
presented, and March 2, the credentials of Mr. Butler, elected for the same term, were presented. 
March 7, the Senate resolved that both credentials be referred to the Committee on Privileges and 
Elections when appointed. November 26, the Senate resolved, after debate, that the committee be 
discharged from the consideration of Mr. Butler’s credentials. November 30, Mr. Butler was sworn 
as a Senator. February 4, 1879, thecommittee reported that at the State election held in November, 
1876, one hundred and twenty-four persons were to be voted for as members of the house of repre¬ 
sentatives ; that the board of State convassers declared that only one hundred and sixteen were duly 
elected; that fifty-nine of these met at the State-house November 28, and organized, being known as 
the Mackey house; that the other fifty-seven of those elected, together with eight persons having 
no certificates of election, met on the same day in a private hall and pretended to organize, being 
known as the Wallace house; that the Mackey house and an unquestioned senate elected Mr. Cor¬ 
bin December 12,1876, whose credentials were signed by Governor Chamberlain, who was, until 
December 14,1876, the unquestioned governor; that the Wallace house, with a minority of the sen¬ 
ate, elected Mr. Butler December 19, 1876, whose credentials were signed by Governor Hampton. 
The committee reported the following conclusions: The Mackey house constituted the lawful house. 
Though composed of less than a majority of all the possible members of that body (one hundred 
and twenty-four) there was a “quorum to do business,” which consisted of a “majority of the 
members chosen ”—a majority of all (hose holding lawful certificates of election. Mr. Corbin was le¬ 
gally elected December 12, 1876, and there was no vacancy when Mr. Butler was elected. The Wal¬ 
lace house had no quorum when it organized, and was never a lawful body. The Wallace house had 
no senate to recognize it. The committee submitted a resolution that Mr. Corbin was duly elected 
and entitled to have the oath of office administered to him. A minority report held that the decis¬ 
ion of the Senate, November 30, 1877, admitting Mr. Butler made the question res adjudicata; fur¬ 
ther, that fifty-nine members did not constitute a legal quorum under the constitution and laws of 
South Carolina, so that the Mackey house was not the legal house. A motion was made, February 
25, 1879, that the Senate proceed to the consideration of the resolution reported by the committee, 
and it was determined in the negative. February 28, the Vice-President laid before the Senate a 
letterfrom Mr. Corbin, withdrawing hisclaim. No further action -was taken by the Senate. Messrs. 
Corbin and Butler were allowed reimbursement of the necessary expenses of the contest. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journal, 2d sess. 44th Cong., and 45th Cong., and the report of the committee 
from Senate Reports, 45th Cong., 3d sess, No. 707. 

Special reference* to the debates of each day are inserted below. 

Tuesday, February 13, 1877. 

Mr. Patterson presented the credentials of David T. Corbin, elected a Senator by the 
legislature of the State of South Carolina for the term of six years commencing March 
4, 1877; which were read. 

Friday, March 2, 1877. 

Mr. Ransom presented the credentials of M. C. Butler, certified by Wade Hampton, as 
governor of South Carolina, to have been elected a United States Senator by the legisla¬ 
ture of that State for the term of six years commencing March 4,1877; which were read. 
Ordered , That they lie on the table. 


[Special session of Senate, March, 1877.] 

Wednesday, March 7, 1877. 

Mr. Patterson submitted the following resolution; which was considered by unani¬ 
mous consent, and agreed to: 

“ Resolved, That the credentials of David T. Corbin and M. C. Butler, each claiming 
to be a Senator from the State of South Carolina, lie upon the table until the commit¬ 
tees are appointed, and their credentials shall be referred to the Committee on Privileges 
and Elections.” 


[First session of the Forty-fifth Congress.] 

Tuesday November 20, 1877. 

Mr. Thurman submitted the following resolution for consideration: 

11 Resolved, That theCommittee on Privileges and Elections be discharged from the 
further consideration of the credentials of M. C. Butler, of South Carolina. ’ ’ 

[The debate is found on pages 556-559 of the Congressional Record, vol. vi.] 


SENATE ELECTION CASES. 


6 38 


Wednesday, November 21, 1877. 

On motion by Mr. Thurman, the Senate proceeded to consider the resolution ^yester- 
day submitted by him to discharge the Committee on Privileges and Elections from the 
further consideration of the credentials of M. C. Butler; and 

After debate, 

On motion by Mr. Hoar that the resolution lie on the table, 

Mr. Conkling demanded the yeas and nays; which were ordered. 

On motion by Mr. Thurman, the Senate proceeded to the consideration of executive 
business. 

[The debate is found on pages 571-581 of the Congressional Record, vol. vi. ] 

Thursday, November 22, 1877. 

The Senate resumed the consideration of the resolution submitted by Mr. Thurman 
on the 20th instant, to discharge the Committee on Privileges and Elections from the 
further consideration of the credentials of M. C. Butler, of South Carolina; and, 

The question being on the motion of Mr. Hoar that the resolution lie on the table, it 
was determined in the negative—yeas 30, nays 32. 

The yeas and nays having been heretofore ordered, 

Those who voted in the affirmative are Messrs. Allison, Booth, Bruce, Burnside, Cam¬ 
eron of Pennsylvania, Chaffee, Christiancy, Conkling, Dawes, Dorsey, Edmunds, Ham¬ 
lin, Hoar, Howe, Ingalls, Jones of Nevada, Kirkwood, McMillan, Matthews, Mitchell, 
Morrill, Oglesby, Paddock, Rollins, Sargent, Saunders, Spencer, Teller, Wadleigh, and 
Windom. 

Those who voted in the negative are Messrs. Bailey, Barnum, Bayard, Beck, Cockrell, 
Coke, Conover, Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gor¬ 
don, Harris, Hereford, Hill, Johnston, Jones of Florida, Lamar, McCreery, McDonald, 
McPherson, Merrimon, Morgan, Patterson, Randolph, Saulsbury, Thurman, Vdbrhees, 
Wallace, Whyte, and Withers. 

So the motion was not agreed to. 

[Several amendments to the resolution of Mr. Thurman were then offered, none of 
which were agreed to. The debate is found on pages 603-605 of the Congressional Record, 
vol. vi.] 

Monday, November 26, 1877. 

The Vice-President announced that the morning hour had expired, and called up the 
unfinished business of the Senate at its last adjournment, viz, the resolution submitted 
by Mr. Thurman on the 20th instant to discharge the Committee on Privileges and 
Elections from the further consideration of the credentials of M. C. Butler, of South Car¬ 
olina; and 

The Senate resumed the consideration of the said resolution; and, 

After debate, 

On motion by Mr. Edmunds that the Senate proceed to the consideration of executive 
business, it was determined in the negative—yeas 28, nays 30. 

******* 

So the motion was not agreed to. 

After further debate,, 

On motion by Mr. Edmunds to amend the resolution by striking out all after the word 
“resolved” and in lieu thereof inserting: 

“That the Committee on Privileges and Elections be, and hereby is, instructed to in¬ 
quire forthwith, and report as soon as may be, whether any threats, promises, or arrange¬ 
ments respecting existing or contemplated accusations or criminal prosecutions against 
any Senator, or any other corrupt or otherwise unlawful means or influences have been 
in any manner used or put in operation, directly or indirectly, by M. C. Butler, one of 
the claimants to a seat in the Senate from the State of South Carolina, or by any other 
Senator or other person, for the purpose of influencing the vote of any Senator on the 
question of discharging said committee from the consideration of said M. C. Butler’s cre¬ 
dentials or on the other question at the present session of the Senate; and that said com¬ 
mittee have power to send for persons and papers, and to sit during the sittings of the 
Senate,” 

It was determined in the negative—yeas 27, nays 30. 

On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Allison, Anthony, Booth, Bruce, Burn¬ 
side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, 
Dawes, Dorsey, Edmunds, Hoar, Howe, Ingalls, Jones of Nevada, Kirkwood, McMil¬ 
lan, Mitchell, Morrill, Oglesby, Paddock, Rollins, Saunders, Teller, and Wadleigh. 

Those who voted in the negative are Messrs. Bailey, Bayard, Beck, Cockrell, Coke, 


CORBIN VS. BUTLER. 


639 


Conover, Davis of Illinois, Davis of West Virginia, Dennis, Garland, Gordon, Harris, 
Hereford, Jones of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, Mat¬ 
thews, Merrimou, Morgan, Randolph, Ransom, Saulsbury, Thurman, Voorhees, Wallace, 
Whyte, and Withers. 

So the amendment was not agreed to. 

[Several other amendments to the resolution of Mr. Thurman were then offered, none 
of which were agreed to. ] 

The question recurring on agreeing to the resolution, as follows: ' 

“ Resolved, That the Committee on Privileges and Elections be discharged from the 
consideration of the credentials of M. C. Butler, of South Carolina,” 

It was determined in the affirmative—yeas 29, nays 27. 

On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Bailey, Bayard, Beck, Cockrell, Coke, 
Conover, Davis of West Virginia, Dennis, Garland, Gordon, Harris, Hereford, Hill, 
Jones of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, Merrimon, Morgan, 
Patterson, Randolph, Saulsbury, Thurman, Voorhees, Wallace, Whyte, and Withers. 

Those who voted in the negative are Messrs. Allison, Anthony, Booth, Bruce, Bum- 
side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Conkling, Dawes, Dor¬ 
sey, Edmunds, Hoar, Howe, Jones of Nevada, Kirkwood, McMillan, Matthews, Mitch¬ 
ell, Morrill, Oglesby, Paddock, Rollins, Saunders, Spencer, Teller, and Wadleigh. 

So the resolution was agreed to. 

******* 

Mr. Thurman submitted a motion that M. C. Butler, of South Carolina, be sworn as 
Senator from that State. 

Mr. Edmunds objected to the consideration of the motion this day. 

[The debate is found on pages 63&-714 of the Congressional Record, vol. vi. ] 

Wednesday, November 28, 1877. 

The Senate proceeded to the consideration of the resolution to admit William Pitt 
Kellogg to a seat in the Senate. 

On motion by Mr. Thurman to amend the resolution by striking out all after the word 
“resolved” and in lieu thereof inserting: 

“ That M. C. Butler be now sworn as a Senator from the State of South Carolina,” 

After debate, 

On the question to agree thereto, the yeas were 30 and the nays were 30. 

On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Bailey, Bayard, Beck, Cockrell, Coke, 
Davis of Illinois, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, Here¬ 
ford, Hill, Jones of Florida, Kernan, Lamar, McCreery, McDonald, McPherson, Merri¬ 
mon, Morgan, Patterson, Randolph, Saulsbury, Thurman, Voorhees, Wallace, Whyte, 
and Withers. 

Those who voted in the negative are Messrs. Allison, Anthony, Booth, Bruce, Burn¬ 
side, Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, 
Conover, Dawes, Dorsey, Edmunds, Hoar, Howe, Jones of Nevada, Kirkwood, McMil¬ 
lan, Matthews, Mitchell, Morrill, Oglesby, Paddock, Rollins, Sargent, Saunders, Spen¬ 
cer, Teller, and Wadleigh. 

The vote of the Senate being equally divided, 

The Vice-President voted in the negative. 

So the amendment was not agreed to. 

Upon the announcement of the result of the vote on the amendment, 

Mr. Thurman rose to a question of order, and submitted that the provision of the Con¬ 
stitution that the Vice-President shall have no vote unless where the Senate is equally 
divided does not apply to the case of seating a member; but that questions of seating a 
member should be left to the Senators themselves, under the provision that each House 
shall be the judge of the elections, qualifications, and returns of its own members; and, 

After debate, 

Mr. Thurman withdrew the question of order. 

[The debate is found on pages 730-740 of the Congressional Record, vol. vi.] 

Friday, November 30, 1877. 

On motion by Mr. Thurman that M. C. Butler be now sworn as a Senator from the 
State of Sou th Carolina, it was determined in the affirmative—yeas 29, nays 28. 

On motion by Mr. Edmunds, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Bailey, Bayard, Beck, Cockrell, Coke, 


SENATE ELECTION CASES. 


640 

Conover, Davis of West Virginia, Dennis, Eaton, Garland, Gordon, Harris, Hereford, 
Hill, Jones of Florida, Keman, Lamar, McCreery, McDonald, McPherson, Merrimon, 
Morgan, Patterson, Randolph, Saulsbury, Thurman, Voorhees, Wallace, and Withers. 

Those who voted in the negative are Messrs. Allison, Anthony, Booth, Bruce, Burnside, 
Cameron of Pennsylvania, Cameron of Wisconsin, Chaffee, Christiancy, Conkling, Dawes, 
Dorsey, Edmunds, Hoar, Howe, Jones of Nevada, Kirkwood, McMillan, Matthews, 
Mitchell, Morrill, Oglesby, Paddock, Rollins, Saunders, Spencer, Teller, and Wadleigh. 
So the motion was agreed to. 

Mr. M. C. Butler then appeared, and the oath prescribed by law having been adminis¬ 
tered to him by the Vice-President, he took his seat in the Senate. 


[Second session of the Forty-fifth Co'ngtess. ] 

Thursday, December 13, 1877. 

Mr. Cameron, of Wisconsin, presented the petition of David T. Corbin, praying that 
his right to a seat in the Senate as Senator from South Carolina may be inquired into 
and determined by the Senate upon its merits. 

Saturday, December 15, 1877. 

Mr. Butler submitted the following resolution for consideration: 

“ Resolved , That the Committee on Privileges and Elections be, and hereby is, in¬ 
structed to inquire forthwith, and report as soon as may be, whether any threats, promises, 
or arrangements respecting existing or contemplated accusations or criminal prosecutions 
against any Senator, or any other corrupt or other wise unlawful means or influences have 
been in any manner used or put in operation, directly or indirectly, by M. C. Butler, 
one of the Senators from the State of South Carolina, or by any other Senator or other 
person, for the purpose of influencing the vote of Senators on the question of discharging 
said committee from the consideration of said M. C. Butler’s credentials or the other 
question at the late session of the Senate; and that said committee have power to send 
for persons and papers, and to sit during the sittings of the Senate. ’ ’ 

[The debate is found on pages 235, 236 of the Congressional Record, vol. vii, part 1.] 

Tuesday, March 26, 1878. 

On motion by Mr. Cameron, of Wisconsin, 

Ordered, That the petition of David T. Corbin, praying that his right to a seat in the 
Senate may be inquired into and determined, be referred to the Committee on Privileges 
and Elections. 

Tuesday, June 4, 1878. 

Mr. Wadleigh submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

“ Resolved, That one hundred copies of the arguments before the Committee on Privi¬ 
leges and Elections in the case of Messrs. Corbin and Butler be printed for the use of the 
committee. * ’ 


[Third session of the Forty-fifth Congress.] 

Thursday, December 5, 1878. 

Mr. Cameron, of Wisconsin, submitted the following resolution; which was consid¬ 
ered by unanimous consent, and agreed to: 

“ Resolved , That one hundred copies of the report made to the Committee on Privileges 
and Elections by Mr. Cameron, of Wisconsin, in the matter of the claim of David T. 
Corbin to a seat in this body as Senator from the State of South Carolina be printed for 
the use of said committee. ’ ’ 


Thursday, January 23, 1879. 

Mr. Wadleigh submitted the following resolution; which was considered by unani¬ 
mous consent, and agreed to: 

“ Resolved , That one hundred copies of the minority report of the subcommittee on 
Privileges and Elections in the case of Messrs. Butler and Corbin be printed for the use 
of the committee.” 

Tuesday, February 4, 1879. 

Mr. Cameron, of Wisconsin, frcm the Committee on Privileges and Elections to whom 
were referred the credentials of David T. Corbin, claiming to be Senator-elect from the 


CORBIN VS. BUTLER. 


641 

State of South Carolina, and his petition praying an inquiry into his right to a seat in 
the Senate, submitted a report (No. 707) accompanied by the following resolution: 

Resolved , That David T. Corbin was on the 12th day of December, A. D. 1876, duly 
elected by the legislature of the State of South Carolina a Senator from that State in the 
Congress of the United States for the term of six years commencing on the 4th of March, 
A. D. 1877, and that as such he is entitled to have the oath of office administered to 
him. ’’ 

Mr. Hill asked and obtained leave to submit the views of the minority of the Com¬ 
mittee on Prx.lieges and Elections on the foregoing case; which were ordered to be 
printed, to accompany the report (No. 707). 

REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Wadleigh (chairman), Mitchell, Cameron of 
Wisconsin, McMillan, Hoar, Ingalls, Saulsbury, Merrimon, and Hill.] 

In the Senate of the United States. 

February 4, 1879.—Ordered to be printed. 

Mr. Cameron, of Wisconsin, from the Committee on Privileges and Elections, sub¬ 
mitted the following report: 

The Committee on Privileges and Elections, to whom was referred the credentials of 
David T. Corbin and M. C. Butler, each claiming to be Senator-elect from the State ol 
South Carolina, submit the following report: 

The resolution of the Senate of March 7, 1877, referring this case, is as follows: 

‘ ‘ Resolved , That the credentials of David T. Corbin and M. C. Butler, each claiming to 
be a Senator from the State of South Carolina, lie on the table until the committees are 
appointed, and their credentials shall then be referred to the Committee on Privileges 
and Elections.” 

On the 9th day of March the committees were appointed, and, without any further 
action on the part of the Senate, this committee received the credentials of David T. Cor¬ 
bin and M. C. Butler. The committee took no action upon these credentials during the 
special session convened in March, 1877. At the called session, convened on the 15th 
October, 1877, the Senate passed an order by which the subjects referred to the com¬ 
mittees and not acted upon at the close of the March session were returned to the several 
committees to which they had been referred. Under this order these credentials were 
returned to this committee. 

On the 20th of November, 1877, Mr. Thurman offered a resolution that “the Committee 
on Privileges and Elections be discharged from the further consideration of the creden¬ 
tials of M. C. Butler. ’ ’ This resolution is to be found in the Congressional Record of 
November 21, page 12. The final vote upon that question was taken November 30, 1877, 
and the credentials of Mr. Butler were withdrawn from the committee. 

On the 22d of November, 1877, Mr. Edmunds offered an amendment to the resolution 
of Mr. Thurman for the purpose of attaching the name of D. T. Corbin to the resolution. 
It appears upon page 27 of the Congressional Record of November 23: 

“Mr. Edmunds. Mr. President, I am now going to make a motion to amend, that I 
cannot help thinking will get the votes of the gentlemen who voted against the former 
proposition. I am sorry I had not thought of it before, because in that case I should have 
got all their votes in the first instance. After the word ‘ credentials, ’ as it stands in the 
resolution, I move to insert the words ‘of William Pitt Kellogg and Henry M. Spofford, 
of Louisiana, and,’ so that the resolution will read, if amended as I now propose, ‘that 
the Committee on Privileges and Elections be discharged from the consideration of the 
credentials of William Pitt Kellogg and Henry M. Spofford, of Louisiana, and of M. C. 
Butler, of South Carolina ’; and I move to add also, after ‘ Butler, ’ the words ‘ and D. T. 
Corbin,’ so as to put them all on that equality where the fourteenth amendment, that we 
all believe in now, places them.” 

That motion, as appears on the same page of the Record, was not agreed to. 

On the 30th of November, 1877, the Senate having under consideration the contested- 
election case of William Pitt Kellogg and Henry M. Spofford, the following occurred: 

“Mr. Edmunds. Mr. President, I ask the liberty to venture to suggest once more the 
possibility of our coming to an understanding as to taking a vote upon these questions, 
and I ask that unanimous consent be given in the usual method, not that the Journal 
shall bind as an order, but the understanding of Senators does; 1 ask unanimous consent 
to come to this understanding among Senators: 

“ ‘First, to vote on the Kellogg-Spofford case at or before 2 o’clock and 30 minutesp. 
m. to-day ’— 

“By which I mean the next 2 o’clock and 30 minutes, one hour from this time by the 

dock - S. Doc. 11-41 



SENATE ELECTION CASES. 


642 


“ ‘The chairman of the committee or anyone allowed by him to have the last hour to 
sum up if desired.’ 

“Mr. Thubman. That would give him all the time now. 

“Mr. Edmunds. Exactly; but your side has had all the evening on the Kellogg case. 

“Mr. Thubman. Go ahead. 

11 Mr. Edmunds. ‘ Second, to vote on the Butler-Corbin case at or before the expiration 
of one hour aftjr the Kellogg-SpofFord case is disposed of, the time to be equally divided, 
the chairman of the committee or some one for him to have the last thirty minutes to 
close the debate . 7 

“ I ask unanimous consent to come to that understanding, Mr. President. 

“The Vice-Pbesident. Is there objection? 

“ Mr. Gael and. Is there nothing, I ask the Senator from Vermont, of the other case? 

‘ ‘ Mr. Edmunds. I propose nothing. I ask unanimous consent for that I have named, 
nothing more, nothing less. 

‘ 1 Mr. Gabland. I do not think it is an improper proposition at all. 

“ Mr. Thubman. Mr. President, I hope the proposition will be agreed to, and I ask 
my Democratic friends on this floor to agree to it and to trust to me that it will result in 
an arrangement perfectly honorable and fair to both parties. 

‘ ‘ The Vice-Peesident. Is there objection to the proposition ? The Chair hears none. 

“Several Senatoes. Question! Question!”—(Congressional Record,vol. vi, 1877, 
pages 796, 797.) 

The resolution seating Mr. Kellogg was then adopted. 

Thereupon Mr. Thurman moved that M. C. Butler be sworn in as Senator from South 
Carolina, and the resolution was voted upon and adopted without debate. 

On the 13th of December, 1877, Mr. Corbin’s petition was presented to the Senate, 
asking that his claim to a seat in the Senate be considered upon its merits. 

The petition is as follows: 

To the honorable Senate of the United States: 

Your petitioner, David T. Corbin, of the State of South Carolina, shows to your hon¬ 
orable body that he was, on the 12th day of December, A. D. 1876, duly and lawfully 
elected by the legislature of the State of South Carolina to the office of United States 
Senator from that State for the term of six years commencing the 4th day of March, A. D. 
1877. 

That in said election all the provisions of the Constitution and laws of the United 
States were complied with, and your petitioner was regularly and duly declared elected 
by the legislature of said State, and duly commissioned accordingly by the governor of 
said State. 

And your petitioner further shows that his credentials were presented to your honor¬ 
able body before the close of th.e last regular session; and at the commencement of the 
extra session in March last said credentials, together with the credentials of M. C. Butler 
(who claimed to have been elected also Senator from South Carolina), were referred to 
the Committee on Privileges and Elections of your honorable body. 

And your petitioner shows, on information and belief, that his said credentials have, 
since said reference of them to said committee, remained in the possession of said com¬ 
mittee, and that no action has been taken thereon, either by said committee or the 
Senate. 

And your petitioner now prays that your honorable body will, in justice to your peti¬ 
tioner, and in justice to the legislature of the State of South Carolina that elected and the 
governor that commissioned him, inquire into, hear, and determine on their merits the 
claim and right of your petitioner to a seat in your honorable body as Senator from the 
State of South Carolina. 

All of which is respectfully submitted. 

DAVID T. CORBIN. 

On the 26th day of March, 1878, this petition was referred to this committee. At the 
very outset of the committee’s examination of Mr. Corbin’s claim they were met with 
a plea to their jurisdiction, submitted by the counsel of Mr. M. C. Butler, as follows: 

‘ ‘ The sitting member respectfully submits that the Committee on Privileges and Elec¬ 
tions cannot entertain jurisdiction of the contestant’s claim to the seat of a Senator from 
the State of South Carolina in the Congress of the United States. He bases his denial 
of the right of the committee to take jurisdiction of the case upon the following grounds: 

“1. In the adjudication of a contested-election case, under that clause of the Constitu¬ 
tion which makes each House “ the judge of the elections, returns, and qualifications of 
its own members,” the Senate acts as a judicial tribunal. And the general principle that 
every question in issue settled by the final judgment of a judicial tribunal becomes res 
judicata as between the parties thereto applies to judgments of the Senate in contested- 
election cases. 


CORBIN VS. BUTLER. 


643 


44 2. The contestant's petition, referred to the committee March 26, 1878, suggests no 
question which was not adjudicated by the Senate in the determination of this cause at 
the first session of the Forty-fifth Congress; nor was any question involved in the con¬ 
testant’s case as presented to the committee or to the Senate at that session which was 
not adjudicated in that determination. 

“ 3. Inasmuch as the Senate has no set forms for its judicial decisions, the nature and 
scope of an adjudication will be determined, not by the mere form of the judgment, but 
by the whole record of the case. 

“ 4. When the Senate adjudicates a contested-election case upon its merits the juris - 
dition of the committee over the case ipso facto terminates, whatever formalities may or 
may not attend the termination of such jurisdiction. 

11 5- Judicial tribunals of last resort will not rehear a cause after final judgment, on 
the application of a party, but only on a motion to reconsider made by a member of the 
tribunal who concurred in the decision; nor even in such a case after the expiration of 
the term at which the j udgment is rendered. And this principle applies to decisions 
made by the Senate in contested-election cases. ” 

An elaborate discussion of the proposition stated in this plea to the jurisdiction is not 
necessary, as while expressing no opinion on their general soundness, the committee over¬ 
ruled the plea on the ground that the same is not supported by the facts in the case. The 
claim or right of Mr. Corbin to a seat in the Senate as Senator from the State of South 
Carolina is not res adjudicata , because in point of fact it has not been passed upon and 
adjudicated by the Senate. 

To ascertain what has and what has not been determined in any given case, reference 
must be had to the record of the proceedings taken therein. 

If the record shows the controversy between the parties determined upon a considera¬ 
tion of the merits, then that determination binds the parties and their privies, and pre¬ 
cludes further inquiry. 

The facts above stated, from the records of the Senate in regard to Mr. Corbin’s case, 
show that his credentials were referred to this committee of the Senate, and that no ac¬ 
tion of the Senate has been had to withdraw them from the committee. And the fact is 
that the credentials have been with the committee to the present time by the direct ac¬ 
tion of the Senate. No case has in any form been made up between Mr. Corbin and Mr. 
Butler and submitted to the Senate to be passed upon, and no case, as between them, 
has been passed upon by the Senate. 

Mr. Thurman’s resolution, that the Committee on Privileges and Elections be dis¬ 
charged from the further consideration of the credentials of M. C. Butler, of South Car¬ 
olina, meant precisely what it said. Its language is too clear to be misunderstood. It 
indicates a mere purpose on the part of the mover to dispense with the further service of 
the Committee on Privileges and Elections in the consideration of Mr. Butler’s creden¬ 
tials. 

If there was any question as to his purpose, Mr. Thurman’s remarks on introducing 
it would relieve it of any doubt. He said, among other things, on introducing it— 

* ****** 

“ I do not ask them in this resolution to decide that Mr. Butler is chosen Senator from 
South Carolina. I ask that the committee be discharged from the consideration of his 
credentials. An y one who believes Mr. Corbin to have been elected can make a like 
motion in his case, and thus the whole case will be before the Senate; and all I ask is 
that the Senate will hear and decide.” 

In the discussion that followed on this resolution the Record shows it was, without 
exception, the purpose of Senators to show why this resolution on the one hand should 
be adopted, and on the other why it should not be adopted. Much was incidentally 
said by individual Senators as to the validity of the claims of Mr. Butler and Mr. Cor¬ 
bin respectively, but this was, as plainly appears, with a view to influence action upon 
the pending resolution But whatever individual Senators said in the course of the dis¬ 
cussion, the action of the Senate is to be looked to finally to acertain what was deter¬ 
mined. When the resolution was adopted its effect was simply to bring before the Sen¬ 
ate the credentials of M. C. Butler. It did not bring before the Senate the credentials 
ofD. T. Corbin. 

After Mr. Butler’s credentials were thus brought before the Senate, a motion was 
made that he be sworn in as Senator from South Carolina, and without debate the vote 
was taken and the motion adopted. Mr. Butler was then sworn in. Swearing in a Senator 
on his cre dentia ls has always been regarded as admitting him toTns seat on tne pnma 
/^te-caSe_made_by those credentials. There is no instance in the history of the Senate 
whefeHTmember has been so sworn in and allowed to take his seat as Senator that such 
admission has been held to preclude investigation into the merits of his title. On the other 
hand the precedents are exactly the reverse. The cases of James Shields of Illinois, 
James Harlan of Iowa, Bright and Fitch of Indiana, and of Mallory of Florida, reported 



644 


SENATE ELECTION CASES. 


in Bartlett’s Contested Election Cases in Congress, at pages 606, 621, 629, and 608, are 
examples of this rule. 

But the principle of res adjudicata can only apply where parties to the controversy have 
been before the court or body having jurisdiction thereof, and have been heard upon the 
merits of their respective claims, and-a decision has been rendered thereon. 

In the present case Mr. Corbin has never been a party before the Senate to any contro¬ 
versy with Mr. Butler respecting his rights to a seat as Senator. The Senate, by its action, 
has not permitted him to be a party to any such controversy, and the merits of his case 
have never been passed upon by the Senate. Therefore, the doctrine of res adjudicata has 
no application to the case. 

So holding, the committee have proceeded to inquire into the grounds of Mr. Corbin’s 
claim to a seat in the United States Senate as Senator from the State of South Carolina. 

The grounds upon which his claim rests are as follows: 

A general election was held in that State November 7, 1876, for State and county 
officers, and for members of the house of representatives of the State legislature, and for 
a part of the members of the State senate. 

The returns of this election were made, first, by the several boards of precinct man¬ 
agers—each board consisting of three members—to the commissioners of election for their 
respective counties, called in this connection boards of ‘ ‘ county canvassers’ ’ ; second, by 
the several boards of county canvassers to the board of State canvassers at Columbia, the 
capital of the State; and, third, by the board of State canvassers who finally acted upon 
the returns and determined and declared the results. 

The board of State canvassers on November 22, 1876, completed their canvass of this 
election and returned as duly elected sixteen (16) State senators and one hundred and 
sixteen (116) members of the house of representatives. 

Subsequently, and previous to November 28, 1876, the day of the meeting of the 
legislature, the secretary of state delivered the official certificate of his election to each 
person declared elected by the board of State canvassers. 

On the 28th day of November, 1876, the newly elected senators, with those holding 
over from the former election, met and organized as the senate, in the senate chamber in 
the State-house. The legality of the senate as a legislative body and the regularity of 
its organization are not now and never have been questioned. 

On the same day fifty-nine (59) of the persons declared elected by the board of State 
canvassers met in the hall of the house of representatives in the State-house and organ¬ 
ized as the house of representatives, the other fifty-seven members, holding certificates 
of election from the board of State canvassers, refusing to meet with them. These fifty- 
seven members met in a private hall in the city of Columbia, and pretended to organize 
as a house of representatives by the election of William H. Wallace as speaker. The 
fifty-nine members at the State-house elected E. W. M. Mackey speaker. 

The two bodies organized at the State-house recognized each other, respectively, as the 
senate and house of representatives of the State by the interchange of official communi¬ 
cations pertaining to legislative business. They also officially recognized Governor 
Chamberlain as the governor of the State, and were officially recognized by him as the 
senate and house of representatives, together constituting the legislature of the State. 

On November 29,1876, five persons who contested the election of the persons declared 
elected by the board of State canvassers as representatives of Barnwell County were 
declared by this house of representatives at the State-house to be entitled to seats, and 
were admitted and sworn in as members. 

On December 2,1876, five persons who in like manner contested the election of the 
persons declared elected by the board of State canvassers as representatives of Abbeville 
County were declared by this house to be entitled to seats, and were admitted and sworn 
in as members. 

On December 5, 1876, four other persons, contestants for seats from Aiken County, 
were in like manner admitted and sworn in as members. 

The members thus admitted, with the original membership of fifty-nine, make the 
whole number of members of this house of representatives (commonly known as the 
Mackey house) seventy-three. 

On December 2,1876, this house of representati ves considered the matter of the elec¬ 
tion for members of the house of representatives in Edgefield and Laurens Counties, 
and declared that no valid election was held in those counties on the 7th of November 
1876. 

On the 12th day of December, 18'6, being the second Tuesday after the said 28th day 
of November, 1876, the two bodies above described proceeded, in the manner prescribed 
by the statutes of the United States (U. S. Rev. Stat., Tit. II, ch. 1, p. 3), to elect aSenator 
in Congress. 

D. T. Corbin received a majority of all the votes cast in both bodies on December 12 
1876. 


CORBIN VS. BUTLER. 


645 


On the following day, December 13,1876, the two bodies convened in joint assembly 
at 12 o’clock meridian; the journal of each house was read; and it appearing that D. T. 
Corbin had received a majority of all the votes in each house, he was declared duly elected 
Senator. 

Mr. Corbin’s credentials were signed on December 13, 1876, by Governor Chamber- 
lain, who was, until December 14, 1876, the unquestioned governor of the State, General 
Hampton not claiming to hold the office until after his inauguration on December 14, 

Upon this general statement of facts arises the question, was the election of Mr. Cor¬ 
bin valid, and is he now entitled to a seat in this body as a Senator from the State of 
South Carolina? 

I. It has already been stated that no question has ever been made as to the complete 
validity, as a legislative body and a constituent house of the general assembly, of the 
senate which sat in the State-house and co-operated with the house of representatives, 
in which Mr. Corbin received a majority of votes. No other body claimed to be the 
senate. 

This senate never in any manner recognized the existence, as a legislative body, of the 
other assemblage which assumed to be the house of representatives (commonly known 
as the Wallace house), and which met in a private hall in Columbia. 

The action of this senate, therefore, so far as it enters into the title of Mr. Corbin, need 
not be further discussed. It was valid. 

The part performed by the house of representatives which sat in the State-house in 
the election of Mr. Corbin presents the most important question which arises in this 
case. 

The validity of this body is called in question. It is claimed, in denial of Mr. Corbin’s 
title, that this body was never a valid legislative body under the constitution and laws of 
South Carolina; that it never had a quorum of lawfully elected members; that all its 
acts were null and void. 

The facts upon which this question must be decided are these: 

The constitution of the State, Article II, section 4, provides as follows: 

‘ ‘ The house of representatives shall consist of one hundred and twenty-four members, 
to be apportioned among the several counties according to the number of inhabitants in 

each.” 

Article II, section 14, is as follows: 

“Each house shall judge of the election returns and qualifications of its own mem¬ 
bers; and a majority of each house shall constitute a quorum to do business.” 

At the election of November 7,1876, one hundred and twenty-four persons were to be 
voted for as members of the house of representatives. Of this number, constituting a 
full house, the board of State canvassers declared that only one hundred and sixteen were 
duly elected, and the secretary of state issued certificates of election to only one hundred 
and sixteen, the canvassers at the same time placing upon the records a declaration of 
their inability, by reason of unlawful influences and practices in the election, to deter¬ 
mine that any persons had been duly elected as representatives for the counties of Edge- 
field and Laurens. 

Of the one hundred and sixteen persons thus declared elected by the board of State 
canvassers, and holding certificates of election from the secretary of state, fifty-ninetook 
part in the organization of the house of representatives in the State-house on November 
28, 1876, being a majority of all the members declared elected by the board of State 
canvassers and holding certificates of election from the secretary of state. 

Was the body thus composed and organized the legal house of representatives of the 
State? 

Attention has been called to the fact that after the organization of the house of repre¬ 
sentatives which elected Mr. Corbin certain of those who took part in that organization 
withdrew and acted with another assemblage calling itself the house of representatives, 
thereby reducing the number of canvassing board members sitting in the Mackey house 
from fifty-nine to fifty-three, of whom only forty-four voted for Mr. Corbin. 

There is no force in these suggestions, because the fact is that the number of members 
who acted with the Mackey house was never reduced below fifty-nine. It is true that 
a few of those who formed part of the original fifty-nine canvassing board members of 
the Mackey house left their seats in the State-house and joined the Wallace house; but 
before a single such person had left the Mackey house had, upon contests duly made, 
admitted other members in number more than equal to those who afterward left. 

If, therefore, the original house of fifty-nine members was a lawful house on the day 
of its organization, it was a lawful house at all times thereafter till its final adjourn¬ 
ment December 22, 1876. If it was a lawful house for any purpose it was a lawful 
house for the purpose of deciding contested elections of its own members and for admit¬ 
ting those \*hom it might adjudge to be lawfully elected. 


646 


SENATE ELECTION CASES. 


The statement that out of the original fifty-nine who organized the Mackey house 
only forty-four voted for Mr. Corbin has no significance. At the time of his election the 
inquiry was not how many canvassing board members voted for Mr. Corbin, but how 
many lawful members voted for him. If the house was lawfully organized on Novem¬ 
ber 28, then the members admitted on the 29th, and subsequently, were lawful members, 
entitled to all the rights and powers belonging to any members. 

But to the point of the legality of the Mackey house. 

The constitutional provisions which regulate the matter of a legislative quorum in 
South Carolina are (1) that “the house shall consist of one hundred and twenty-four 
members,” and (2) that “a majority of each house shall constitute a quorum to do 
business. ’ ’ 

Stated in its most condensed form, the inquiry here is, what is the meaning of the 
phrase “a majority of each house”? Does it mean a majority of one hundred and 
twenty-four or a majority of the members duly elected or qualified? 

As an original question it would seem that there are strong reasons why the latter 
view should be adopted. 

If the former view be adopted a contingency may easily occur in which it will be 
absolutely impossible to organize a lawful house. If under any circumstances there 
should be a failure to elect a majority of the whole possible representation, the govern¬ 
ment would be brought at once to a dead stop; nor would there be any power anywhere 
to remove the obstruction. 

In opposition to this view it is said that if it be held that a number less than a major¬ 
ity of the whole possible representation constitute a quorum, then under some circum¬ 
stances it will be in the power of a small fraction of the whole representation to hold 
and exercise the powers of the house. This is admitted; but such a danger will not 
menace the life itself of the State. The government will be able to go on without 
recourse to extra legal remedies. 

All governments aim at self-perpetuation. No element of self-destruction is inten¬ 
tionally admitted into the framework or fundamental law of a State. All constitutional 
provisions should therefore receive a construction, if possible, which shall be in harmony 
with this idea of the perpetuity of the government, of its unbroken life and efficiency. 
If the rule were adopted that a quorum of the house of representatives of South Caro¬ 
lina must consist of at least sixty-three members, then if from any cause sixty-three 
members should not be elected, it would be impossible by any constitutional methods 
to obtain a house of representatives at least until the next general election. 

No speaker could be chosen; no writs of election could be issued. Did the fifty-nine 
members composing the body at the State-house constitute a quorum of the house of 
representatives? 

The most controlling decisions upon this question are those of the two Houses of Con¬ 
gress. 

The Constitution of the United States and the constitution of South Carolina may be 
said to contain identical provisions upon this point. The Constitution of the United 
States provides as follows: 

‘ ‘ The Senate of the United States shall be composed of two Senators from each State, 
chosen by the legislature thereof for six years.—(Article I, section 3.) 

“ The number of Representatives shall not exceed one for every thirty thousand, but 
each State shall have at least one Representative.”—(Article I, section 2.) 

The only respect in which these provisions differ from the corresponding provisions of 
the constitution of South Carolina is that here the numerical aggregate of Senators and 
Representatives is not stated. The rule of representation is laid down, and under that 
rule there is always at any specified point of time a fixed number of Senators and Rep¬ 
resentatives in Congress, precisely as much so as in South Carolina. 

In principle these two constitutional provisions are identical, and it is idle to insist 
that the mere verbal difference is of the least importance. 

The provisions respecting a quorum in the Constitution of the United States and that 
of South Carolina are identical in terms, namely: 

“A majority of each house shall constitute a quorum to do business.” 

It will be found that in the Senate of the United States prior to 1862 it was held as a 
matter of parliamentary practice in some instances that a quorum consisted of a majority 
of the whole possible representation, and in other instances of a majority of Senators 
elected and qualified. 

The question does not appear to have been discussed by the Senate, or to have been 
maturely considered, until after April 11, 1862. On that day Mr. Sherman, of Ohio, 
offered a resolution, which was referred to the Committee on the Judiciary, in these 
words: 

“ Resolved , That a majority of the Senators duly elected and entitled to seats in this 
body is a constitutional quorum.”—(Congressional Globe, April 11, 1862.) 


CORBIN VS. BUTLER. 647 

On July 9, 1862, this resolution was debated in the Senate and laid upon the table by 
a vote of 19 to 18. 

On March 7, 1864, Mr. Sherman offered a resolution, which was referred to the Com¬ 
mittee on the Judiciary, in these words: 

Resolved , That a quorum of the Senate consists of a majority of the Senators duly 
chosen or qualified.” 

On May 3, 1864, the Committee on the Judiciary having been discharged from the 
further consideration of the resolution, it was taken up and debated. On this and the 
following day the subject was elaborately discussed, especially by Senators Carlisle and 
Davis against the resolution, and by Senators Johnson and Sherman in its tavor. The 
words ‘ or qualified ’ ’ having been struck out, the resolution was adopted by a vote of 
26 to 11, May 4, 1864, in these words: 

“ Resolved, That a quorum of the Senate consists of a majority of the Senators duly 
chosen.”—(Congressional Globe, March 7, May 3 and 4, 1864.) 

The precedents in the House of Representatives prior to 1861 had been varying, but 
here, as in the Senate, the subject does not appear to have been maturely considered until 
1861. During the first session of the Thirty-seventh Congress, in the House of Repre¬ 
sentatives, Speaker Grow finally decided that a quorum of the House consisted of a ma¬ 
jority of the members chosen, and he was sustained by the House in this decision.— 
(Journal H. R., 1st sess. 37th Congress.) 

The effort has sometimes been made to disparage this precedent by stating that it was 
made under the stress of a necessity to secure an organization of the House. This is a 
mistake. The decision was made fifteen days after the organization of the House, and 
upon a question which did not involve the question of the validity of the organization. 

The resolution adopted by the Senate in 1864 has since been adopted by the Senate as 
a permanent rule, and now appears in Rule 1. 

If, in opposition to these precedents, it is urged that they were made because of spe¬ 
cial circumstances then existing, or upon certain constitutional theories regarding the 
status of the States then in rebellion, the answer is that there is no doubt that the peril 
of an opposite construction did lead to the final reversal of former precedents. And justly 
so. One of the truest canons of constitutional construction is that which adopts the con¬ 
struction which best effectuates the purpose of the instrument or provision to be con¬ 
strued. A construction which leads directly to the practical paralysis of the legislative 
power of a State can never be admitted. 

Professor Farrar, in his Manual of the Constitution of the United States, page 166, says 
in relation to the constitutional provision respecting a quorum that “this has been held 
to be a majority of the members actually sworn in and entitled to seats at the time, and 
not a majority of a full delegation from all the States.” 

Another precedent arose in the Senate of the United States on March 2, 1861, when a 
proposition to amend the Constitution was on its passage. The Constitution, upon this 
point, provides that “Congress, whenever two-thirds of both Houses shall deem it neces¬ 
sary, shall propose amendments to this Constitution,” &c. 

When the vote was taken in the Senate, March 2, 1861, Mr. Trumbull raised the point 
of order that this provision required two-thirds of all the Senators which all the States 
were entitled to elect. The Presiding Officer overruled the point of order, and upon ap¬ 
peal the ruling was sustained by a vote of 33 to 1. 

Another precedent of considerable force is found in connection with the ratification of 
the fifteenth amendment to the Constitution. The constitution of Indiana provided that 
two-thirds of each house should constitute a quorum. In 1867 certain members of the 
legislature resigned in order to defeat a vote upon the ratification of the amendment. 
The remaining members thereupon decided that two-thirds of the actual membership 
constituted a quorum, and proceeded to ratify the amendment. This action was certi¬ 
fied in forwarding the vote of the legislature on the ratification of the amendment. No 
question was raised by Congress in regard to the legality of the vote, and the vote of 
Indiana, as thus cast, was accepted and counted. 

The case of State vs. Huggins, 1 McCord, 139, decided in the court of appeals in South 
Carolina, is in point. Eighteen managers of election were appointed by the legislature 
for the district of Georgetown. Two had refused to qualify, one was dead, and one was 
disqualified, reducing the number to fourteen. It was held by thecourt that a majority 
of fourteen properly formed the board of managers for the district to determine the va¬ 
lidity of the election of a sheriff, a majority of those qualified to serve, and not a major¬ 
ity of the whole number appointed, being a lawful quorum. 

Under the provision of the Constitution of the United States that ‘ ‘ each House shall 
be judge of the elections, returns, and qualifications of its own members,” the Senate is 
the sole judge of this matter. The action, opinion, or decision of any other body is, 
therefore, entitled to such weight or respect only as may be due to the reasons which 
support it. 


648 


SENATE ELECTION CASES. 


It is proper to consider the connection of the supreme court of the State of South Car¬ 
olina with this case. And it may be remarked that this presents the most remarkable 
and, perhaps, unfortunate feature of the controversy. That court may be said, without 
injustice, to have taken part in the purely political contests of the State. Instead of 
leaving such contests to be settled by other departments of the government, where they 
properly belong, the court engaged ip those contests. 

The action of that court was taken under these circumstances: After the Mackey house 
and the Wallace house were each organized, the former with fifty-nine and the latter 
with fifty-seven members declared elected by the canvassing board, a petition was pre¬ 
sented to the supreme court by Mr. Wallace, as speaker of the Wallace house, asking 
a mandamus to compel the secretary of state and the speaker of the Mackey house to 
deliver to him the returns of the election for governor and lieutenant-governor. 

By Article III, section 4, of the constitution of the State, these returns are required to be 
sent by the managers of the election to the secretary of state, who is required to return 
them to the speaker of the house of representatives. 

By the return of the secretary of state to the rule to show cause, issued by the su¬ 
preme court upon the petition above stated, it appeared that that officer had delivered 
the returns to the speaker of the Mackey house. 

The return of the speaker of the Mackey house showed that he had received the re¬ 
turns from the secretary of state, and held them by virtue of his office as speaker, and he 
denied the power and jurisdiction of the court in the matter. 

The court thereupon reserved the question as to the secretary of state for further ar¬ 
gument, and dismissed the petition as to Speaker Mackey. 

In coming to this conclusion, the court said that ‘ ‘ sixty-three members were in their 
seats when Mr. Wallace was elected. * * * That the house of representatives con¬ 
sisted of one hundred and twenty-four members, and sixty-three were necessary for a 
quorum to do business. * * * That all the members had certificates from the sec¬ 
retary of state except eight, and the qualification of these eight was established by the 
proceedings in this court. * * * That no matter what was the character of the cer¬ 
tificates they had, the return of the board of State canvassers to the court, showing that 
they had received the greatest number of votes in their particular counties, entitled them 
to access to the floor for the purpose of organization. ’ ’ 

In taking cognizance of this matter and rendering a decision therein the court plainly 
transgressed the limits of its judicial powers, and its decision is void and binding on no 
one. 

The constitution of the State, in section 26 of Article I, provides that “in the govern¬ 
ment of this Commonwealth the legislative, executive, and judicial powers of the govern¬ 
ment shall be forever separate and distinct from each other. ’ ’ 

That the due organization of the house of representatives is a legislative power or func¬ 
tion, and not a judicial one, seems too clear for argument. Two bodies were claiming 
each to be the lawful house of representatives. This was a purely political question. It 
was a question between two sections or parts of one legislative body, each claiming to rep¬ 
resent that body. No other questions were involved. 

Whether Mackey or Wallace was entitled to have the election returns was a question 
which directly involved the action of the members of the legislative body, not in its 
effects upon citizens generally, but in relation to the due organization of that body under 
powers granted to it alone by the constitution. 

The interposition of the court was not only without authority, but was also absolutely 
unnecessary. There was ample power in the lawful house of representatives to afford the 
necessary remedy in the matter if any remedy was needed. 

The judgment of the court itself shows for another reason its want of jurisdiction over 
the case. It held that Mackey, not being an official person, could not be reached by 
mandamus and dismissed the petition. It could grant no relief, accomplish no result 
and yet it proceeded to express an opinion. This was extrajudicial. The court must 
have recognized this dilemma at the outset, namely, if Mackey is speaker he is the law¬ 
ful custodian of the returns; if he is not speaker he is not such an official person as can 
be reached by mandamus. Hence, in either event, no writ could have been issued and 
nothing remained but to dismiss the petition. 

Under these circumstances, the expression of an opinion that Wallace was the speaker 
and that sixty-three members are necessary to form a quorum was utterly uncalled for 
a mere empty obiter dictum. ’ 

When, therefore, it is claimed that the supreme court of the State is empowered to 
construe the constitution, and hence to decide upon the question of a quorum the answer 
is that this is true only when the court has a proper case before it requiring the decision 
of such a question. 

But further, it is to be noted that the court in giving this opinion assumed the fact 
now denied, that one hundred and twenty-four members of the house, instead of one 
hundred and sixteen, had been in fact chosen. 


CORBIN VS. BUTLER. 


649 


The supreme court gave no reason for the opinion that sixty-three members were neces¬ 
sary to form a quorum. It was their unsupported opinion, a d * turn in every sense, not 
expressed in the course of reasoning or discussion leading to a judgment, and wholly 
unsupported by argument. 

In Carroll ys. Lessee of Carroll, 16 How., 28, Judge Curtis said: “This court, and other 
courts organized under the common law, has never held itself bound by any part of an 
opinion which was not needful to the ascertainment of the right or title in question be¬ 
tween the parties. In Cohens vs. Virginia, 6 Wheat., 399, this court was much pressed 
with some portion of its opinion in the case of Marbury vs. Madison. And Mr. Chief- 
Justice Marshall said: ‘ It is a maxim not to be disregarded that general expressions in 
every opinion are to be taken in connection with the case in which those expressions are 
used. If they go beyond the case they may be respected, but ought not to control the 
judgment in a subsequent suit, when the very point is presented. The reason of this 
maxim is obvious. The question actually before the court is investigated with care, and 
considered in its full extent; other principles which may serve to illustrate it are con¬ 
sidered in their relation to the case decided, but their possible bearing on all other cases 
is seldom completely investigated.’ The cases of ex parte Christy, 3 How., 292, and Jen- 
ness vs. Peck, 7 How\, 612, are an illustration of the rule that any opinion given here or 
elsewhere cannot be relied on as a binding authority unless the case called for its expres¬ 
sion. Its weight of reason must depend on what it contains. ’ ’ 

The conclusion on this point is that the construction of that provision of the Consti¬ 
tution of the United States relative to a quorum given by both Houses of Congress is 
applicable to a like provision in the constitution of the State of South Carolina. 

It is a construction dictated by sound reason and public policy. And if it is a safe and 
sound construction of the Constitution of the United States it is equally a safe and sound 
construction of the constitution of the State of South Carolina. 

A quorum, therefore, of either house of the legislature of South Carolina must be held 
to be a majority of the members chosen. 

Legality of the action of the board of State canvassers. 

There is another question lying back of those already discussed which must receive 
attention, viz: Was the action of the board of State canvassers in refusing to certify the 
election of members of the house for Edgefield and Laurens Counties legal? 

The fact has already been stated that the board of State canvassers did not determine 
and declare any persons elected to the house of representatives for Edgefield and Laurens 
Counties. It may also be mentioned here that, in consequence of this action of the board 
of State canvassers, no person representing Edgefield or Laurens Counties took part in the 
organization of the Mackey house. 

The provisions of the statutes of South Carolina defining the powers and duties of the 
canvassing boards which are important to the present question are as follows: 

‘ ‘ Sec. 16. The board of county canvassers shall then proceed to count the votes of the 
county, and shall make such statements thereof as the nature of the election shall re¬ 
quire within ten days of the time of the first meeting as a board of county canvassers, 
and shall transmit to the board of State canvassers any protest and all papers relating to 
the election. 

“Sec. 24. The board of State canvassers shall, upon certified copies of the statements 
made by the board of county canvassers, proceed to make a statement of the whole num¬ 
ber of votes given at such election for the various officers, and for each of them voted for, 
distinguishing the several counties in which they were given. They shall certify such 
statements to be correct, and subscribe the same with their proper names. 

‘ ‘ Sec. 25. They shall make and subscribe, on the proper statement, a certificate of their 
determination, and shall deliver the same to the secretary of state. 

11 Sec. 26. Upon such statements they shall then proceed to determine and declare 
what persons have been by the greatest number of votes duly elected to such offices or 
either of them. They shall have power, and it is made their duty, to decide all cases 
under protest or contest that may arise, when the power to do so does not, by the con¬ 
stitution, reside in some other body. 

“Sec. 27. The board shall have power to adjourn from day to day for a term not ex¬ 
ceeding ten days. ’ ’ 

A large mass of evidence in the form of affidavits was laid before the board of State 
canvassers, tending to show irregularities and illegal influences affecting the election in 
the counties of Edgefield and Laurens, to such an extent as to render it impossible for 
the board to determine and declare who had been duly elected. A summary of that evi¬ 
dence appears in the “ statement ” of Mr. Corbin’s case, and need not be repeated here. 

Under the provisions of the statutes which have now been presented, and upon the 
evidences affecting the election in Edgefield and Laurens Counties referred to, the board 
of State canvassers determined that they could make no statement or determination of 
the election in those counties. 


650 


SENATE ELECTION CASES. 


The board of State canvassers was authorized to reach such a conclusion if, in their 
judgment, the facts presented to them warranted it. They were required “to proceed 
to determine and declare what persons have been by the greatest number of votes duly 
elected to such offices, or either of them. In the present instance they found themselves 
unable to determine and declare that any persons had been by the greatest number of 
votes duly elected as representatives for Edgefield and Laurens Counties, and they so 
declared. If, for purposes of argument, it were here admitted that it was the duty of the 
board to declare what persons appeared to be elected upon the face of the returns, still 
until they did so declare, or until the house of representatives itself had acted upon the 
question, the persons claiming to be elected as representatives for these counties could 
have no claim to take part in the organizat ion or proceedings of the house of representa¬ 
tives. 

It has been claimed in argument that the action of the board of State canvassers was 
illegal because they undertook to decide a case under protest or contest, when the power 
to do so resided, by the constitution, in the house of representatives itself. The answer 
to this is that they did not undertake to decide any cases under protest or contest, or 
to decide at all upon the final right of any person to sit as representative for Edgefield or 
Laurens Counties. Their action may more properly be described as a reference of the 
matter to that body which, by law, had a right to pass finally upon the question of the 
election, qualifications, and returns of its own members. 

It is true that in many, and perhaps most of the States, the powers and duties of the 
returning or canvassing boards have been held to be merely ministerial, consisting in the 
aggregation of the several returns from the various voting precincts throughout the State. 
The question, however, whether the powers and duties of a particular canvassing board 
are merely ministerial or not will always depend upon the law under which they act; 
and it does not follow that because, as a general rule, the powers of canvassing boards 
are merely ministerial that they are so in any particular instance. 

Action of the supreme court of South Carolina. 

While the board of State canvassers were engaged in the canvassing of the elections 
proceedings were instituted in the supreme court of the State for the purpose of controll¬ 
ing their action. And it is proper, in order to meet objections, to consider the relations 
of those proceedings to the present question. 

Those proceedings consisted of the petition of the Democratic candidates for the vari¬ 
ous State offices; first, for a writ of prohibition to restrain the State canvassers from 
doing anything except the ministerial acts of ascertaining from the returns and statements 
forwarded by the boards of county canvassers for the respective counties the persons who 
have received the highest number of votes for the offices for which they were candidates, 
and declare the same and certify the statements to the secretary of state; second, for a 
writ of mandamus to compel the board to ascertain from the said returns and statements 
the persons who received the greatest number of votes for the offices for which they were 
candidates, and to declare the same and certify such declaration to the secretary of 
state, &c. 

Upon this petition a rule to show cause was granted by the court, to which a return 
was made by the board of State canvassers, setting forth the powers conferred on them 
by the statute; alleging that they were then proceeding to discharge their whole duty 
according to the constitution and laws of the State, &c. Thereupon the court made an 
order commanding the board to proceed to aggregate the statements forwarded to them 
by the boards of county canvassers, and ascertain the persons who have received the 
greatest number of votes for the offices for which they were candidates, respectively, at 
the general election, and to certify their action in the premises under this order of the 
court. 

The board accordingly made a return to the court under this order, giving the vari¬ 
ous aggregates of the votes for the various candidates as they appeared on the face of the 
county canvassers’ return. The portion of this return relating to the counties of Edge- 
field and Laurens is as follows: 

“The board of State canvassers, respondents herein, hereby certify that it appears by 
the statements of the several boards of county canvassers laid before the board that the 
following named persons have received the number of votes set opposite their respective 
names for the several offices designated, namely: 

EDGEFIELD COUNTY. 

SENATOR 

M. W. Gary_ 

L. Cain_ 

Note.—T his county is allowed one senator. 


6, 368 
3,121 




CORBIN VS. BUTLER. 


651 


W. S. Allen_ 

J. C. Sheppard_ 

James Callison_ 

T. E. Jennings_ 

H. A. Shaw_ 

Paris Simpkins_ 

Elisha B. Harris 

David Graham_ 

Archie W eldon_ 

Augustus Simpkins 


REPRESENTATIVES. 


Note.—T his county is allowed five representatives. 


6.250 
6, 250 
6, 245 
6, 250 

6.251 
3,123 
3,118 
3,120 

3.118 

3.119 


LAURENS COUNTY. 


R. S. Todd_ 

J. Y. P. Owens 


SENATOR. 


Note. —This county is allowed one senator. 


REPRESENTATIVES. 

J. B. Humbert_ 

J. Washington Watts_ 

D. Wade Anderson_ 

A. T. B. Hunter_ 

W. H. Rutherford_ 

Harry McDaniel___ 

Note. —This county is allowed three representatives. 


2, 898 
1,813 


2, 911 
2, 909 
2, 908 
1,811 
1,810 
1,809 


‘ ‘ The board further certifies that * this statement is made to the court in obedience 
to its order of November 17,1876, but is respectfully submitted that under the present 
proceedings in this court this board is not by law compelled to report any of its actions to 
the court. ’ 

******* 

“ This board further shows to this court that allegations and evidences of fraud have 
been filed with this board as to the election held in Edgefield County by many of the 
managers of election in said county; but similar allegations have been made and filed 
as to one or more precincts in Barnwell County; that the statements of the commissioners 
of election for Laurens County laid before this board were signed by two commissioners 
only, one of whom signed, as he certifies, under protest; said commissioner has also filed 
an affidavit that the reason he signed said statements was because he was in fear of bodily 
injury if he refused to do so; that various protests and notices of contest have been filed 
from many other counties of the State, alleging irregularities on the part of election offi¬ 
cers, illegal voting, &c. 

“That in view of said allegations, protests, and notices of contests, none of which have 
been heard or passed upon by this board, because of the pendency of these proceedings, 
this board cannot, in their opinion, properly ascertain and certify who have actually re¬ 
ceived the greater number of legal votes in said counties for the several offices voted for 
unless they have the opportunity of investigating these allegations and hearing evidence 
upon these protests. ’ ’ 

This statement having been made to the court, the next day the court of its own motion 
made the following order: 

* ‘It is ordered , That a writ of peremptory mandamus do issue, directed to the chairman 
and members of the board of State canvassers and the secretary of state, commanding 
the said board forthwith to declare duly elected to the offices of senators and members of 
the house of representatives the persons who by said certificate of the said board to this 
court have received the greatest number of votes therefor, and to forthwith deliver a cer¬ 
tified statement and declaration thereof to the secretary of state; and commanding the 
secretary of state to make the proper record thereof in his office, and without delay trans¬ 
mit a copy thereof, under the seal of his office, to each person thereby declared to be 
elected, a like copy to the governor, and cause a copy thereof to be printed in one or more 
public newspapers of this State. ” 

Before this latter order was served upon the members of the board, the ten days allowed 
by law having expired, the board completed its canvass of the election returns, declared 
the election, and adjourned sine die. 

The course of the supreme court in this case is deserving of notice in several respects. 

First. When the petition and the return were before the court there had been no refusal 




















652 


SENATE ELECTION CASES. 


by the board to do any duty imposed upon it. The board had only begun their work as 
canvassers when the court issued its order in mandamus. It is an elementary principle 
of law that a refusal to perform a duty must precede an application for mandamus. Eight 
of the ten days within which they could act still remained. 

Second. The court immediately issued an order requiring the board to report to the 
court itself the result of the face of the returns. This was an order for which no foundation 
had been laid in the proceedings. It was wholly irregular and without authority of law. 
Such an order could only have been granted, if at all, by way of a writ of certiorari, which 
had not been prayed for in this case. 

The object of this order cannot be mistaken. It was to secure for the court the infor¬ 
mation necessary to determine beforehand the order to be made in order to accomplish a 
desired end. Can any other purpose be suggested? The court is asked in the petition 
for a writ of mandamus to order the board to aggregate the returns and certify the re¬ 
sults. The court say in reply, let the board show us first what the results will be. When 
those results were presented to the court then the order was made to declare those per¬ 
sons elected who, according to the said report made to the court, had received the high¬ 
est number of votes. 

Third. Aside from all these evidences of partisan purposes, the action of the supreme 
court was wholly without j urisdiction. This is true as to all the officers voted for at that 
election, and particularly of members of the legislature. It was in fact a plain usurpa¬ 
tion of power, whereby the functions of the board of State canvassers were usurped by 
the supreme court, and the board required by the court to declare a specified result dic¬ 
tated to it by the court. 

After the board had acted the- court could by quo warranto have reversed the action of 
the board in cases where such a writ would lie; but as to members of the legislature it 
was without jurisdiction at any time to entertain the case. The house of representa¬ 
tives, under the constitution, had sole jurisdiction of the matter. 

Such action on the part of the court is without precedent in South Carolina. It is 
believed to be without precedent in any State. 

The board had a right to reach a conclusion uninfluenced and uncontrolled by any 
power. If it acted wrongly or illegally, its action could by various means be reviewed 
and corrected. 

No power could rightfully compel any decision, and especially any particular decision, 
until the expiration of the ten days allowed for its action. 

The only subsequent action of the court in this case was the imprisonment of the 
board for contempt of the order which was not served on them till after their adjourn¬ 
ment sine die. 

Cushing, in his Law and Practice of Legislative Assemblies (page 52, section 141), 
speaking of returning officers, says: 

“It remains to be observed, in conclusion, that the proceedings of these (returning) 
officers, from the necessity of the case, are, in the first instance, uncontrollable by any other 
authority whatever; so that if, on the one hand, notwithstanding an election has been 
effected, the returning officers neglect or refuse to make the proper return, the party 
thereby injured is without remedy or orders until the assembly to which he is chosen 
has examined his case and adjudged him to be duly elected; and, on the other hand, if 
the returning officers make a return when no election has in fact taken place, or of one 
who is not eligible, the person returned will not only be entitled, but it is his duty, to 
assume and discharge the functions of a member until his return and election be adjudged 
void. ’ ’ 

After the final adjournment of the board of State canvassers, November 22, 1876, the 
order of the supreme court already recited was served upon them. 

That the board then had no power to reassemble and act upon the returns is clear.— 
(Cooley on Const. Lim., 622; Clark vs. Buchanan, 2 Minn. , 346; 33 N. Y., 603.) 

In Minnesota it has been held, in accordance with the principle just stated, that if the 
board of canvassers, after canvassing the votes, adjourn without day, their power in the 
premises is at an end, and they cannot reassemble; neither can a court, by mandamus, 
compel them to reassemble, or give them any power in case of their doing so.—(Clark 
vs. Buchanan, 2 Minn., 346. See also Gooding vs. Wilson, 42d Congress; State vs. Daurn- 
wirth, 21 Ohio, 216.) 

The decision of the supreme court of South Carolina was subsequently reviewed on 
habeas corpus and set aside by Hon. Hugh L. Bond, of the United States circuit court. 

The State supreme court proceeded to imprison the members of the board for con¬ 
tempt. 

After their imprisonment a writ of habeas corpus was sued out before Judge Bond, 
United States circuit judge, sitting at Columbia. Judge Bond delivered an elaborate 
decision in which he held that the proceedings in the supreme court of the State were 
without jurisdiction, and that its order was void. He says: 

“The first question to be decided at this time and upon this motion is whether oi not 


CORBIN VS. BUTLER. 653 

the supreme court of the State of South Carolina had jurisdiction to hear and determine 
the matter before it. ’ ’ 

After quoting the sections of the constitution which confer upon the supreme court 
its jurisdiction, and the sections of the statute which define the powers of the board of 
canvassers, he continues: 

“ The objection to the jurisdiction of the supreme court made by the petitioners is 
that they are a part of the executive department of the government charged with the 
execution of a law of the State, and that they alone are authorized to canvass the votes, 
and that they are not subject in the exercise of their functions to the control of the 
judicial branch of the government. 

“The Supreme Court of the United States in a very able opinion by Mr. Justice Mil¬ 
ler, in the case of Gaines vs. Thompson, 7 Wall., 347, has very clearly determined what 
the law is on this subject, and that is, ‘that if it appear that the act which the court 
is asked to compel the officer of the executive department of the government to do be 
purely ministerial, the court having jurisdiction to issue the writ of mandamus may 
compel the executive officer to perform his duty; but if the act required to be done by 
the executive officer be not merely ministerial but discretionary, or one about which he 
is to exercise his judgment, a court cannot by mandamus act directly upon the officer 
and guide and control his judgment or discretion in the matters committed to his care 
in the ordinary exercise of official duty. ’ And the court further says that ‘ the inter¬ 
ference of the courts with the performance of the ordinary duties of the executive 
departments would be productive of nothing but mischief, and we are quite satisfied 
that such a power was never intended to be given them.’ And for this Mr. Justice 
Miller quotes the opinion of Chief-Justice Taney in the case of the Commissioner of 
Patents vs. Whitely, 4 Wall., 522, and the law is stated to the same effect in a very cel¬ 
ebrated case in Maryland, by Chief-Justice Bowie, Miles vs. Bradford, 22 Md. Rep., 170, 
a case where the power of the governor to canvass the votes was not so broadly given as 
in the case at bar. 

“That the duty of this board of canvassers was not merely ministerial, but that they 
were clothed with a large discretion, it seems to me is very plain. They were not 
merely to take the returns and aggregate them. They were to canvass them. That is, 
they were to examine, to sift, to scrutinize them, which implies a power to reject such 
as were not lawful in their judgment; and more, they were to receive all cases under 
protest or contest that might arise when the power to do so did not by the constitution 
reside in some other body. 

“They were the executive officers appointed to declare the election of such persons 
as had in their judgment the majority of the legal votes cast. If they decided erro¬ 
neously or falsely the remedy of those candidates who thought themselves pronged was 
by quo warranto; but no court had the jurisdiction to compel the board of State can¬ 
vassers to do otherwise than their own judgment dictated. 

“It remains now to be seen what the court was asked to do by the relators. Their 
suggestion sets forth ‘ that the board is proceeding to hear and determine all matters of 
protest and contest before them in regard to the election of persons who were candidates 
at the general election, and is proceeding to certify their determination in such contests 
and protests to the secretary of state. ’ And they pray that a writ of mandamus may 
issue commanding them to ascertain from ‘ the managers’ returns and statements for¬ 
warded to them by the boards of county canvassers, the persons who at the general elec¬ 
tion on the said 7th day of November, ultimo, had the highest number of votes; and com¬ 
manding them and compelling them to revoke and annul any determination or decision 
which they may have made in any case of contest or protest, if any such there be. ’ 

“Under the cases cited in the opinion of the Supreme Court of the United States, 
Gaines vs. Thompson, 7 Wall., 347, above referred to, I am of opinion that the supreme 
court of the State of South Carolina had no jurisdiction to entertain any such ‘sug¬ 
gestion’ or ‘petition.’ * * * The board of State canvassers is required to meet on 
the 10th day of November for the purpose of sifting, scrutinizing, not merely aggregat¬ 
ing, the statements of the county boards. * * * 

“We have shown from the ‘ suggestion ’ itself that in our judgment the court had no 
jurisdiction to entertain it, and though the returns (to this writ) show that the parties 
are in custody solely for not obeying the mandate of the court respecting State officers, 
it is our duty to go behind the returns and look at the case as it presented itself to the 
supreme court at its inception. What the relators asked the court to do in their original 
suggestion is perfectly plain, and we have above quoted the paragraph of the ‘ suggestion ’ 
which constituted the ground of complaint of the relators. In my judgment the whole 
matter was beyond the jurisdiction of the supreme court, and any order passed by them 
upon such‘suggestion’is void. * * * 

“I think this proceeding in the supreme court was beyond the jurisdiction of that 
court; that the board of State canvassers were clothed under the law with discretionary 


654 


SENATE ELECTION CASES. 


powers, which required them to discriminate the votes, to determine and certify the can¬ 
didates elected after scrutiny, and that they were a part of the executive department of 
the government and were in no wise subject to the control as to what they should do 
after they had commejiced to perform that duty of the judicial department. ’ ’ 

We concur in the conclusions reached by Judge Bond. 

Some importance in argument was attached to the action of the Wallace house in 
passing upon and affirming the right of the persons who claimed to represent Edgefield 
and Laurens Counties. From the journal of the Wallace house it appears that on De¬ 
cember 6 the credentials of the persons claiming to be elected for Edgefield and Laurens 
Counties were referred to the Committee on Privileges and Elections to investigate and 
report as to their right to hold seats. 

On December 7 this committee reported that the persons referred to were duly elected 
and entitled to their seats, and this report was adopted. 

The chief and only real significance of this action is that it is evidence of the want 
of confidence on the part of the Wallace house in the legality of its own original organ¬ 
ization, as well as in the right of the persons claiming to be elected for Edgefield and 
Laurens Counties to take part in the proceedings of that body. 

The claim is that on the 7th of December, when the Wallace house adopted the reso¬ 
lution seating the Edgefield and Laurens members, that house contained sixty-three 
canvassing board members, and hence that the action of the house in seating those mem¬ 
bers cannot be questioned. It is to be noted first that this claim is a concession that 
that house to be a valid house must have a majority of one hundred and twenty-four, 
holding the certificates of the canvassing board. 

If this be so, then the Wallace house on the day of its organization was clearly without 
a quorum to do business, for it had only fifty-seven members holding such certificates. 

The six members who joined that house between November 29 and December 7 had 
all been sworn in as members of the Mackey house, and had acted with that house in 
effecting its organization. 

If, now, the Mackey house was a valid house of representatives at its organization, the 
subsequent withdrawal of these six members to join another body could have no effect 
either to impair the validity of the Mackey house or to cure the invalidity of the Wal¬ 
lace house. If their absence had reduced the body below a quorum the house could do 
no business, but, in point of fact, their absence did not reduce the Mackey house below 
a quorum. 

On the same day, December 7, the Wallace house also adopted resolutions declaring 
valid the election of the speaker and subordinate officers of that house on the 28th of 
November. 

This action is another evidence that the Wallace house regarded its organization on 
the 28th of November as at least of very doubtful validity. 

Organization of the house of representatives. 

Passing now from questions affecting the legality of the action of the board of can¬ 
vassers we come to questions concerning the mode of organizing the Mackey house, and 
especially the exclusion therefrom of all persons not declared elected by the canvassing 
board. 

The legal and parliamentary principles on which the Mackey house was organized 
may be stated as follows: 

First. That no persons except those declared elected and duly returned by the board 
of State canvassers and holding certificates of the secretary of state were entitled bj> 
law or usage to be placed upon the roll.—(Cushing, sections 229 and 240.) 

Second. That the organization of the house must be effected by those persons only 
whose election had thus been declared by the board of State canvassers and certified by 
the secretary of state in accordance with the law of the State. 

Third. That all other persons claiming to be entitled to seats in the house of repre¬ 
sentatives must submit their claims to the house after its organization by the members 
whose seats were undisputed.—(Cushing, sections 229 and 240.) 

“It is to be observed in the outset that when a number of persons come together, each 
claiming to be a member of a legislative body, those persons who hold the usual creden¬ 
tials of membership are alone entitled to participate in the organization ”_(McCrarv’s 

Law of Elections, 377.) v J 

“It is apparent that the case of Sykes vs. Spencer is not in conflict with the rule that 
in the organization of legislative bodies persons holding the usual credentials are alone 
authorized to act.”—(McCrary’s Law of Elections, 392.) 

In the well-known case of Kerr vs. Trego, 47 Pa. S. R. —, cited in Brightly’s Leading 
Cases on Elections (page 632), Chief-Justice Lowrie, of the supreme court of Pennsyl¬ 
vania, laid down the following principle: 

“On the division of a body that ought to be a unit the test of which represents the 


CORBIN VS. BUTLER. 


655 

legitimate social succession is which of them has maintained the regular forms of organ¬ 
ization according to the law and usages of the body, or, in the absence of these, accord- 
ing to the laws, customs, and usages of similar bodies in like cases, or in analogy to them, 
ibis is the uniform rule in such cases.’’ 

And in the same case, speaking of the custom of the clerk of the former organization 
taking charge of the organization of the new body, he says (page 638): 

It has the sanction of the common usage of every public body into which only a por¬ 
tion oi new members is annually elected. It is the periodical form of reorganizing the 
select council and the senate of the State, and also the form of organizing the Senate of 
the United States on the meeting of a new Congress, when the Vice-President does not 
appear and the last President pro tempore does; and we understand this custom tobeuni- 
lorm throughout the United States, though this is not very important. And when there 
is a President whose term as a member has expired, then the functions of the clerks con- 
i m V| e, /£ nd th ey, in all cases, act as the organs of reorganizing the body, and continue to 
hold office until their successors are chosen and qualified. Our State and Federal Houses 
of Representatives are illustration enough of this. So universal is this mode of organ¬ 
izing all sorts of legislative and municipal bodies that all departures from it can be 
justified only as founded on special and peculiar usages or on positive legislation. When¬ 
ever this form is adhered to, a schism of the body becomes impossible, though the process 
of organization may be very tardy. 

“ It is objected that a rule that attributes so much power to the officers of the previous 
year gives them an advantage which they may use arbitrarily and fraudulently against 
the new members, so as to secure to themselves an illegitimate majority. No doubt this 
may he so; but no law can guard against such frauds so as to entirely prevent them, just 
as it cannot entirely prevent stealing and perjury and bribery; the people are liable to 
such frauds at every step in the processes of an election or organization. But so much 
more the need for order and law in this part of the process; the law can dictate that, 
though it cannot furnish honesty and sound judgment to the actors in it. That the law 
and order that we have announced have existed so long and so generally is proof, at 
least, that they are better than no law at all.” 

In Wilson’s Digest of Parliamentary Law, section 1603, page 221, this author says: 

‘ ‘At the commencment of every regular session the Clerk of the House opens the ses¬ 
sion by calling the names of members by States and Territories, if in Congress, and by 
counties if in State legislative assemblies. If a quorum answer to their names, he will 
put the following question: ‘Is it the pleasure of the House to proceed to the election of 
a Speaker ?’ If decided in the affirmative, tellers are generally appointed to conduct the 
vote.” 

This seems to be the universal custom in the organization of legislative bodies, and 
such custom not only prevails in South Carolina, but is specially established by the rules 
of the house of representatives of this State. 

Rule 80 of the rules of the house of representatives of this State is as follows: 

“ In all cases not determined by these rules, or by the laws, or. by the constitution of 
this State, as ratified on the 14th, 15th, and 16th days of April, 1868, this house shall 
conform to the parliamentary law which governs the House of Representatives of the 
United States Congress.” 

Rule 81 is as follows: 

“ These rules shall be the rules of the house of representatives of the present and suc¬ 
ceeding general assemblies until otherwise ordered.” 

Turning now to Barclay’s Digest (pages 44 et seq ., and 126), we find that the law govern¬ 
ing the House of Representatives of the United States Congress requires the Clerk of the 
last House to make up the roll of the members of the new House by placing thereon the 
names of such persons only whose credentials show “that they were regularly elected”; 
that having ascertained, by a call of this roll, that a quorum is present, the Clerk then 
proceeds to call the names of the members for the choice of a Speaker; the Speaker being 
chosen, assumes the duties of presiding officer, and, after swearing in the members, the 
oath of office being first administered to him, proceeds to complete the organization. 
Pending the election of a Speaker the Clerk preserves order and decorum. 

Upon the question of the right of the claimants from Edgefield and Laurens Counties 
to be placed upon the roll, and to participate in the organization, the following citation 
from Cushing’s Law and Practice of Legislative Assemblies, section 229, page 87, is in 
point: 

“ The right to assume the functions of a member, in the first instance, and to partici¬ 
pate in the preliminary proceedings and organization, depends wholly and exclusively 
upon the return or certificate of election; those persons who have been declared elected and 
are duly returned being considered as members until their election is investigated and 
set aside, and those who are not so returned being excluded from exercising the function 
of members, even though duly elected, until their election is investigated and their right 
admitted.” 


656 


SENATE ELECTION CASES. 


To the same effect is section 141 (page 52) of the same work, which has already been 
fited in connection with the action of the Supreme Court. 

In section 238 (page 91) of the same work, in discussing the principles of parliamentary 
Law governing the assembly and organization of legislative bodies, Cushing says: 

“Hence it has occurred more than once that struggles for political power ha,ve begun 
among the members of our legislative assemblies, even before their organization; and it 
has happened on the one hand that persons whose rights of membership were in dispute, 
and who had not the legal and regular evidence of election, have taken upon themselves 
the functions of members; and, on the other, that persons having the legal evidence of 
membership have been excluded from participating in the proceedings.” 

In order to avoid such difficulties, this distinguished writer lays down the following 
principles in section 240, which are applicable to the question now under consideration: 

‘ ‘ That no person who is not duly returned is a member, even though legally elected, 
until his election is established. 

“That those members who are duly returned, and they alone (the members whose 
rights are to be determined being excluded), constitute a judicial tribunal for the decis¬ 
ion of all questions of this nature. ’ ’ 

In Kerr vs. Trego (Brightly’s Election Cases, page 636), already cited, the Chief- 
Justice said: 

“In all bodies that are under law, the law is that where there has been an authorized 
election for the office in controversy the certificate of election which is sanctioned bylaw 
or usage is a prima facie written title to the office, and can be set aside only by a contest 
in the form prescribed by law. This is not now disputed. No doubt this gives great 
power to dishonest election officers; but we know no remedy for this but by the choice of 
honest men.” 

It is proper here in this connection to again refer to the language already quoted from 
the same authority (page 638): 

“ It is objected that a rule that attributes so much power to the officers of the previ¬ 
ous year gives them an advantage which they may use arbitrarily and fraudulently 
against the new members, so as to secure to themselves an illegitimate majority. No 
doubt this may be so; but no law can guard against such frauds so as to entirely prevent 
them, just as it cannot entirely prevent stealing and peijury and bribery; the people are 
liable to such frauds at every step in the process of an election or organization. But so 
much the more need for order and law in this part of the processes; the law can dictate 
that, though it cannot furnish honesty and sound judgment to the actors in it. That 
the law and order which we have announced have existed so long and so generally is 
proof, at least, that they are better than no law at all. ’ ’ 

Applying the law as now stated to the facts in the present instance, it is clear, first, 
that there were no representatives from Edgefield and Laurens Counties having certifi¬ 
cates of election according to the law and usage of this State; and second, that under the 
law, without such certificates, the clerk had no right to place the names of any persons 
upon the roll of the house as representatives from these counties. 

It follows that fifty-nine members of the house of representatives who met in the 
State-house at Columbia and organized by the election of E. W. M. Mackey as speaker 
were lawfully convened, were lawfully organized, and, under the constitution of South 
Carolina, constituted the lawful house of representatives of that State. Though less than 
a majority of all the possible members of that body (one hundred and twenty-four), there 
was a “quorum to do business,” which consisted of a “majority of the members 
chosen”—a majority of all those holding lawful certificates of election. 

This house of representatives, in connection with the unquestioned senate, constituting 
together, as they did, the legislature of the State of South Carolina, proceeded on the 12th 
day of December, 1876, to the election of a Senator to represent that State in the Senate 
of the United States for the term of six years to commence on the 4th of March, 1877. 
The election was duly held, duly determined and declared, and D. T. Corbin was duly 
and formally declared elected Senator, and subsequently he was duly commissioned as 
such by the governor of the State. He is, therefore, entitled, on the merits of his case, 
to a seat in the Senate as a Senator from South Carolina for the term of six years com¬ 
mencing on the 4th of March, A. D. 1877. 

M. C. Butler's case. 

Under the view taken of the facts relative to Mr. Corbin’s election and the legal effect 
thereof, it would seem unnecessary to discuss the grounds of Mr. Butler’s claim to be 
Senator, as it is impossible that he should have been legally elected if Mr. Corbin had 
already been elected. That the legislature cannot, after electing one person as Senator, 
subsequently set aside this election and elect another person to the same seat has l>een 
decided by the Senate in the case of Potter vs. Robbins, from Rhode Island. But we 


CORBIN VS. BUTLER. 657 

think it is not improper in this connection to consider briefly the facts in his case, and 
upon which his title depends. 

The fifty-seven Democratic members of the house of representatives holding certifi¬ 
cates of election under the determination of the board of State canvassers on the 28th day 
of November, 1876, declined to enter the State-house and unite with the other fifty-nine 
Republican members of the house of representatives there assembled; but, by themselves, 
assembled in a private hall, called Carolina Hall, in the city of Columbia. Eight other 
persons, five from Edgefield County and three from Laurens County, claiming to be mem¬ 
bers of the house of representatives elect, but holding no certificates of election from 
the board of State canvassers, assembled with said fifty-seven members at Carolina Halli 
This body, so made up, organized by electing William H. Wallace speaker. In the organ¬ 
ization of this body it was assumed that the fifty-seven members with certificates of elec¬ 
tion and the eight persons claiming seats from Edgefield and Laurens, but who had no 
certificates of electipn, constituted a quorum of the house of representatives, and the same 
was competent to do business. 

On the 4th, 5th, and 6th of December, 1876, six members of the house of representa¬ 
tives assembled at the State-house, and who had been regularly sworn in as members 
of that house and had taken part in its organization, retired therefrom, and joined the 
Wallace house at Carolina Hall. One of them subsequently returned to his seat in the 
body at the State-house. 

This body, at Carolina Hall, on the 12th day of December, 1876, this being the second 
Tuesday after the meeting and pretended organization thereof, proceeded to vote for a 
United States Senator, taking one ballot, which resulted in no choice. From day to day 
this house continued to vote for a United States Senator, but without making any choice, 
until the 19th of December, 1876, when, having then present eleven members of the 
senate (six less than a majority of that body), the election resulted in the choice of M. 
C. Butler as Senator. The senate, as such, never recognized in any manner this assem¬ 
blage at Carolina Hall as the house of representatives; but always recognized the other 
body assembled in the State-house as the lawful house of representatives. 

Was the election of Mr. Butler under these circumstances valid? It is impossible that 
it can be so regarded. 

There was no quorum, no majority of the members chosen at the then recent election, 
present. As already stated, one hundred and sixteen members of the house of represent¬ 
atives had been chosen at the recent election, and no more. Of this number fifty-nine 
were necessary fora “ quorum to do business,” and there were but fifty-seven here pres¬ 
ent. Such a body could not lawfully organize as a house of representatives, and all its 
pretended acts were void. Again, it is not possible to recognize this body as the legisla¬ 
ture of South Carolina, which under the United States Constitution alone could elect a 
Senator. 

The legislature of the State of South Carolina consists, under the constitution of that 
State, of a senate and house of representatives. 

A quorum of those two bodies must each meet and organize, and they must recognize 
each other before they can be considered the legislature of the State. Until this is done 
the legislature is not organized. 

This body never had a senate recognizing and corresponding with it. Without such a 
body, even if itself lawful, it was nothing in law, and could do nothing as a legislative 
body. It did not, in fact, during its whole session do any legislative act or pretend that 
it could do any. It recognized its own impotency in this respect, but, strange inconsist¬ 
ency, it made a dash at the election of a United States Senator. 

The defects in Mr. Butler’s title to a seat in the Senate as Senator from the State of 
South Carolina may be stated briefly as follows: 

1. There was no vacancy to be filled at the time of his election on December 19, 1876, 
ha Mr. Corbin had been lawfully elected to said office on the 12th of December, 1876. 

2. The house of representatives that assumed to elect Mr. Butler had no quorum at 
the time it was organized, and was never, therefore, a lawful body. 

The additions made to it by recruits from the house of representatives assembled in 
the State-house did not make it a lawful body. If that house was a lawful body at its 
organization, it would so remain, notwithstanding the absence of five of its members. 

If, by their absence, it was reduced below a quorum, no business could be done ex¬ 
cept to adjourn or send for the absent members. 

But that house was not in fact at any time reduced below a quorum. It remained 
intact from the day of its organization, November 28, 1876, till December 22, 1876, fol¬ 
lowing, when, in connection with the senate, it adjourned. 

3. But admitting all that is claimed by Mr. Butler for the Wallace house at Car¬ 
olina Hall, that it was lawfully organized and had a quorum of the house present, still, 
while this would invalidate Mr. Corbin’s election, it would not make valid Mr. Butler s 
election. The single and isolated house of representatives of South Carolina cannot by 

S. Doc. 11-12 



658 


SENATE ELECTION CASES. 


iiny process of reasoning be held to constitute the legislature of that State. The consti¬ 
tution of that State requires a senate and house of representatives for that purpose. But 
the Wallace house had no senate to recognize it. It stood isolated and alone, and, so 
standing, it could originate no lawful action. It could no more elect a Senator than it 
could enact laws. 

The following resolution is submitted as the determination of the committee upon the 
merits of this controversy: 

Resolved , That David T. Corbin was, on the 12th day of December, A. D. 1876, duly 
elected by the legislature of the State of South Carolina a Senator from that State in the 
Congress of the United States for the term of six years commencing on the 4th day of 
March, A. D. 1877, and that, as such, he is entitled to have the oath of office adminis¬ 
tered to him. 


VIEWS OF THE MINORITY 

The undersigned members of the Committee on Privileges and Elections, to which 
committee was referred tl\e petition of David T. Corbin, praying the Senate “ to inquire 
into, hear, and determine on their merits the claim and right of the petitioner to a seat 
in the Senate from the State of South Carolina for the term of six years commencing on 
the 4th day of March, A. D. 1877,” being unable to agree with the reasoning and con¬ 
clusion of the majority of the committee, respectfully submit the following as their views 
in the premises. 

On the 7th of March, 1877, the credentials of David T. Corbin and M. C. Butler, each 
claiming the seat as Senator from South Carolina, were ordered to lie on the table and 
be referred to the Committee on Privileges and Elections when appointed. Two days 
thereafter the committee was appointed, and received the credentials of both claimants 
for the seat. 

Mr. Butler filed a printed statement setting forth the issues of fact and law upon which 
he claimed the seat. 

Mr. Corbin also filed a like statement setting forth the issues of fact and law upon which 
he claimed the seat. 

Replies to the statements thus made were also filed. 

On examination of the issues thus made up there seemed to be no material issue of 
fact between the contestants, and the question as to which of them, or whether either, 
was duly elected by a legal legislature was one of law. 

In this condition the contest remained until the 20th of November, 1877, and on 
this latter day a motion was made in the Senate “that the Committee on Privileges and 
Elections be discharged from the consideration of the credentials of M. C. Butler, of 
South Carolina.” The reason alleged for this motion was that the facts were all stated 
in the records furnished by the contestants; that neither of the contestants desired to 
take any testimony aliunde , and that the question of law could be debated and decided 
in the Senate as well without as with a report from the committee. 

On the 27th of November, after elaborate debate, this resolution to discharge the com¬ 
mittee was accepted by the Senate, and after further debate, and after the statements made 
and printed in behalf of Mr. Corbin and arguments on both sides had been read and made in 
the Senate, the Senate agreed to a motiton to swear in Mr. Butler, and he was, on the 30th 
of November, sworn in as the Senator from South Carolina for the term in contest. A 
vote admitting one contestant to a seat is certainly a vote denying the same seat to 
another contestant when both contestants are parties to the issue. No motion was made 
to reconsider this action of the Senate, and no reservation was made looking to any fur¬ 
ther contest between the claimants. On the 26th of March, 1878, and during a subse¬ 
quent session of Congress, the petition now under consideration by Mr. Corbin, asking the 
Senate “to inquire into, hear, and determine his right and claim ” to the same seat in 
the Senate was referred to this committee. 

In considering this petition the facts which have been presented to this committee are 
precisely the same which were presented on the former consideration of this case Not 
a new fact has been presented, nor offered to be presented, and not an old fact has been 
withdrawn or modified, nor offered to be withdrawn or modified. The arguments now 
made have been made from the same statements and briefs filed on the former hearing 
and not a new question of law has been presented except the issue of res adjudicata 
No charge of fraud has been made against the former decision. No allegation that testi¬ 
mony was before excluded which ought to have been admitted, or that testimony was 
admitted which ought to have been excluded; no request by either party to produce testi¬ 
mony has been denied, and no pretense that testimony then offered and excluded can 
now be produced. The jurisdiction is the same; the parties are the same; the subiect- 
matter of contest is the same; the facts are the same, and the questions of law are the 
same. The petition now before us is a mere, sheer, naked proposition that the Senate at 
a subsequent session shall revote on the identical questions, facts, and issues on which 
the Senate voted and decided at a former session. 


CORBIN VS. BUTLER. 


659 ’ 


Without going into a tedious and unnecessary review of the authorities and cases to 
be found in the books, we deem it sufficient to say that no demand like that contained 
in the petition of Mr. Corbin was ever granted by this Senate, nor, as we believe, by any 
legislative body. 

In the case of Bright and Fitch, in the Thirty-fifth Congress, the parties to the rehear¬ 
ing asked were new and different, and had not before been heard, and the rehearing itself 
was asked in a memorial from the legislature of the State of Indiana. But because “all 
the facts and questions of law T involved were as fully known and presented to the Senate ’ ’ 
on the former hearing as they were then presented in the memorial of the legislature ask¬ 
ing a rehearing, it was held that the judgment first rendered by the Senate “was final, 
and precluded further inquiry into the subject.” 

If, on the former hearing, Mr. Corbin had been denied the privilege of introducing 
material facts which he offered to produce; if he presented material facts now which 
were then unknown; if all the facts and questions of law now known and presented were 
not then as fully known and presented, the undersigned will not undertake to say his 
petition for a rehearing ought not in j ustice and right to be gravely heard and considered 
on the merits. But as Mr. Corbin himself has suggested no new facts or questions of 
law, and as we well know that all the facts and questions of law now known and pre¬ 
sented were then quite as well known and presented both to the committee and the 
Senate, we cannot regard his petition for another vote as entitled to further considera¬ 
tion. 

If, however, a majority of the Senate shall differ with us in the view we have presented, 
and shall, without precedent, without law and without reason, determine to re-examine 
on its merits the title of Mr. Corbin to the seat which he claims in the Senate, we sub¬ 
mit that the former decision, excluding him from that seat, was right, and ought not to 
be reversed. 

There is no controversy between the contestants about the facts, and the only ques¬ 
tion presented is one of law. The only real question is, whether the house of repre¬ 
sentatives of the legislature which it is claimed elected Mr. Corbin was a legal house or 
a legal quorum of a house under the constitution and laws of South Carolina. 

By section 4, Article II, of the constitution, it is is provided that “the house of repre¬ 
sentatives shall consist of one hundred and twenty-four members. ’ ’ 

By section 14, Article II, it is provided that “a majority of each house shall consti¬ 
tute a quorum to do business; but a smaller number may adjourn from day to day, and 
may compel the attendance of absent members in such manner and under such penalties 
as may be provided by law.” 

It is difficult to see how language could more plainly define what should be a house, 
or what should be a quorum of a house, or what only a less number than a quorum had 
power to do. Nor is there anything in law, morals, or party exigency which can justify 
a resort to construction or sophistry to confuse such plain language. The number of 
members who assembled in what is called the Mackey house, which pretended to elect 
Corbin, was fifty-nine. Clearly this was neither a house nor the quorum of a house, as 
plainly defined by the constitution of the State, and this number had no power except to 
adjourn from day to day and compel the attendance of absent members. But this num¬ 
ber proceeded to organize as a legal quorum to do business. 

The pretext for this extraordinary assumption of power by fifty-nine members was 
that the board of State canvassers had only issued certificates of election to one hundred 
and sixteen members, and the claim is that fifty-nine is a majority of one hundred and 
sixteen. But this very statement admits that a quorum of the house was certified as 
elected. The fifty-nine, then, are left without excuse for failing to exercise their only 
power under the constitution, “to compel the attendance of absent members. ” But the 
facts show that the people in fact elected one hundred and twenty-four members—a full 
house. The precinct commissioners and the county commissioners of election, in all the 
counties, respectively, made out and forwarded the statements required by law showing 
the votes cast at the election. The board of State canvassers refused to cast up the votes 
in the counties of Edgefield and Laurens, under the shallow pretext that they were 
unable to determine whether the elections in those counties were legal. They refused 
to discharge their plain ministerial duty of casting up the votes and thereby “determine 
and declare what persons had been by the greatest number of votes duly elected,” but 
excused themselves from this duty by pretending they were not able to determine whether 
there had been legal elections in those counties ! This was a question which, under the 
constitution, each house alone had authority to determine, and which the board of State 
canvassers, by plain language of the act creating it, is forbidden to determine. 

In due time, also, the house of representatives did determine that there had been elec¬ 
tions held in the counties of Edgefield and Laurens, and the returns very plainly showed 
who had been elected, and, in fact, the full house of one hundred and twenty-four mem¬ 
bers were elected. Both in fact and law, therefore, fifty-nine was not a quorum of the 
house to do business, and Mr. Corbin was not elected by a legal legislature. 


660 


SENATE ELECTION CASES. 


The facts in this case show very plainly that the board of State canvassers were guilty 
of a disreputable attempt by mere trickery to defeat the result of the election by the 
people, and such conduct should not receive the countenance of the Senate. 

The undersigned, therefore, recommend that the resolution to seat Mr. Corbin, reported 
by the majority of the committee, be not adopted. 

A. S. MERRIMON. 

ELI SAULSBURY. 

BENJ. H. HILL. 

Tuesday, February 25, 1879. 

On motion by Mr. Cameron, of Wisconsin, that the Senate proceed to the consideration 
of the resolution reported by the Committee on Privileges and Elections declaring David 
T. Corbin duly elected and entitled to a seat in the Senate as a Senator from the State 
of South Carolina, it was determined in the negative—yeas 25, nays 36. 

On motion by Mr. Conkling, the yeas and Days being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Allison, Anthony, Blaine, Booth, Cam¬ 
eron of Wisconsin, Chandler, Conkling, Dawes, Dorsey, Edmunds, Ferry, Hamlin, Hoar, 
Howe, Ingalls, Kirkwood, McMillan, Mitchell, Morrill, Oglesby, Paddock, Plumb, Rollins, 
Wadleigh, and Windom. 

Those who voted in the negative are Messrs. Bailey, Barnum, Bayard, Beck, Cameron 
of Pennsylvania, Cockrell, Coke, Conover, Davis of Illinois, Davis of West Virginia, Den¬ 
nis, Eaton, Garland, Gordon, Grover, Harris, Hereford, Hill, Jones of Florida, Kernan, 
Lamar, McCreery, McDonald, McPherson, Matthews, Maxey, Merrimon, Morgan, Patter¬ 
son, Ransom, Saulsbury, Shields, Voorhees, Wallace, Whyte, and Withers. 

So the motion was not agreed to. 

Friday, February 28, 1879. 

The Vice-President laid before the Senate a letter of David T. Corbin, withdrawing 
his claim to a seat in the Senate as Senator-elect from the State of South Carolina. 

Ordered , That it lie on the table. 

[A copy of the letter is found on page 2028 of the Congressional Record, vol. viii, 
part 3.] 

REIMBURSEMENT OF MR. BUTLER’S EXPENSES. 

Friday, March 17, 1882. 

Mr. Hoar, from the Committee on Privileges and Elections, reported the following 
resolution; which was read the first and second times by unanimous consent: 

‘Resolved , That there be paid out of the contingent fiind of the Senate the sum of $3,500 
to M. C. Butler, a Senator from the State of South Carolina, in reimbursement of ex¬ 
penses necessarily incurred by him in defense of his title to his seat.” 

Monday, March 20, 1882. 

On motion by Mr. Hoar, the Senate proceeded to consider, a-s in Committee of the 
Whole, the following resolution reported by him from the Committee on Privileges and 
Elections on the 17th instant, and no amendment being made it was reported to the 
Senate: 

“A resolution to pay M. C. Butler the expenses incurred by him in defending his title 
to a seat in the Senate. ’ ’ 

Ordered, That it be engrossed and read a third time. 

The said resolution was read the third time. 

Resolved, That the Senate agree thereto. 

[The debate is found on pages 2046, 2047 of the Congressional Record, vol. xiii, part 3. ] 

REIMBURSEMENT OF MR. CORBIN’S EXPENSES. 

“To pay D. T. Corbin, late contestant for a seat in the United States Senate from the 
State of South Carolina, his expenses of such contest, $10,000.”— U. S. Statutes at Large, 
45 th Cong., 1877-’79, vol. 20, page 400; surdry civil appropriation bill, approved March 3, 
1879. 


LA FAYETTE GROVER. 


661 


[Special session ol Senate, March, 1877, and second session of the Forty-fifth Congress.] 

La FAYETTE GROVER, 

Senator from Oregon from March 8, 1877, till March 3, 1883. 

March 2,1877, the credentials of Mr. Grover, elected for the term beginning March 4,1877, were pre 
seated. March 7, a memorial of citizens of Oregon protesting against his admission to a seat were 
presented, and objection was made to the oaths being administered to Mr. Grover at that time. The 
following day he was admitted after debate. March 9, Mr. Grover submitted a resolution that the 
memorial be referred to the Committee on Privileges and Elect ions for investigation. The resolu¬ 
tion was agreed to. December 14,1877, the testimony taken was printed. June 15,1878, the commit¬ 
tee reported that the evidence taken did not sustain any of the charges. The committee asked to 
be discharged from the further consideration of the subject. One member of the committee, con¬ 
curring in the conclusion of the committee, submitted views more at length, maintaining that a great 
injustice was done to Mr. Grover by the consideration given in the Senate to the vague charges pre¬ 
ferred against him. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journals, 2d sess. 44tli and 45th Congs., and the report of the committee (except the 
testimony) from Senate Reports, 45th Cong.,2d sess., No. 540. 

Special references to the debates of each day are inserted below. 


Friday, March 2, 1877. 

Mr. Kelly presented the credentials of La Fayette Grover, elected a Senator by the 
legislature of Oregon for the term of six years commencing March 4, 1877; which were 
read. 

Wednesday, March 7, 1877. 

Mr. Wallace moved that the oaths required by law be now administered to Mr. La 
Fayette Grover, whose credentials were heretofore presented as a Senator from the State 
of Oregon, and who appeared at the bar of the Senate. 

Mr. Hamlin objected to the oath being now administered to Mr. Grover, for the reason 
that Mr. Mitchell, a Senator from Oregon, now absent from the Chamber, had received and 
desired to present to the Senate a memorial of citizens of Oregon remonstrating against 
the admission of the said Grover to a seat in the Senate. 

Pending further debate upon the amendment of Mr. Bayard to the resolution of Mr. 
Blaine, 

Mr. Mitchell asked, and by unanimous consent obtained, leave to present at this time 
a memorial of citizens of Oregon protesting against the admission of L. F. Grover to a seat 
in the Senate as a Senator from that State until certain charges therein made can be in¬ 
vestigated and disproved. 

Ordered , That the memorial lie on the table. 

[A statement by Mr. Mitchell and a copy of the memorial are found on pages 22, 23 
of the Congressional Record, vol. vi.] 

Thursday, March 8, 1877. 

Mr. Wallace submitted the following resolution for consideration: 

‘ ‘ Whereas, under the Constitution and the laws and the practice of the Senate, La Fay¬ 
ette Grover, claiming to be a Senator from the State of Oregon—his credentials being 
regular and in due form and there being no contestant for the seat—and there being in 
said State but one body claiming to be the legislature, and but one person claiming to be 
the governor, and there being no doubt or dispute as to the existence of one legal, right¬ 
ful State government, is entitled to admission to a seat in this body, on the prima facie 
case presented by such credentials, notwithstanding the objections contained in the pe¬ 
tition of citizens of the State of Oregon against his admission: Therefore, 

* 1 Resolved, That the credentials of La Fayette Grover be taken from the table and the 
oaths of office be now administered to him. 

11 Resolved, further , That the petition of citizens of Oregon containing charges against 
La Fayette Grover lie on the table until the Committee on Privileges and Elections is 
organized, when they shall be referred to such committee, together with his credentials, 
with instructions to investigate such charges and report to the Senate as to their truth 
or falsity. ’ ’ 

On the question to agree thereto, 

After debate, 

Mr. Whyte demanded a division of the question, and the question being first put on 
agreeing to the first resolution and preamble, 

It was determined in the affirmative. 


SENATE ELECTION CASES. 


662 


The question recurring on the second resolution, Mr. Wallace, with the consent of the 
Senate, withdrew the same. 

Whereupon 

Mr. Grover presented himself at the bar of the Senate, and the Vice-President having 
administered to him the oaths prescribed by law, he took his seat in the Senate. 

[The debate is found on pages 31-39 of the Congressional Record, vol. vi.] 

Friday, March 9, 1877. 

Mr. Grover submitted the following resolution; which was considered by unanimous 
consent, and agreed to, viz: 

a Resolved, That the thirteen memorials heretofore presented to the Senate by Hon. J. 
H. Mitchell, purporting to be signed by 369 citizens of the State of Oregon, reciting that 
it was currently reported and generally believed that the election of L. F. Grover as a 
Senator of the United States was procured by bribery, corruption, and other unlawful 
means in the legislature of the State of Oregon, and that the said L. F. Grover did cor¬ 
ruptly and fraudently issue a certificate of election to one E. A. Cronin as a Presidential 
elector, on December 6, 1876, and that the said L. F. Grover did bear false witness be¬ 
fore the Senate Committee on Privileges and Elections, on or about January 6, 1877, be 
now referred to the Committee on Privileges and Elections, who shall thoroughly inves¬ 
tigate and report upon the foregoing charges, with power to send for persons and papers.” 

Wednesday, March 14, 1877. 

Mr. Mitchell submitted the following resolution for consideration: 

11 Resolved , That the Committee on Privileges and Elections be authorized to designate 
a subcommittee of three of its members who shall have authority to sit in the vacation 
for the purpose of taking testimony and making report to full committee at commence¬ 
ment of next session in pursuance of the resolution of the Senate authorizing an investi¬ 
gation into certain charges preferred against La Fayette Grover, Senator from Oregon; 
and such subcommittee shall have all the powers to send for persons and papers and 
administer oaths that the full committee now has.” 


Thursday, March 15, 1877. 

Mr. Mitchell presented twenty-three petitions of citizens of Oregon, praying that L. 
F. Grover may be denied a seat in the Senate until certain charges preferred against him 
maybe investigated; which were referred to the Committee on Privileges and Elections. 

The Senate proceeded to consider the resolution yesterday submitted by Mr. Mitch¬ 
ell to authorize tne Committee on Privileges and Elections to appoint a subcommittee 
to sit during the recess for the investigation of certain charges against La Fayette Grover, 
a Senator from the State of Oregon; and 

Pending debate, it was 

Ordered , That the further consideration thereof be postponed to to-morrow. 

[The latter proceeding is taken from the Record. It does not appear in the Journal. 
The debate is lound on page 42 of the Congressional Record, vol. vi.] 

Friday, March 16, 1877. 

The Senate resumed, &c., and an amendment having been proposed by Mr. Saulsbury, 

Pending debate, 

On motion by Mr. Allison, the Senate proceeded to the consideration of executive 
business. 

[The debate is found on page 43 of the Congressional Record, vol. vi.] 

Saturday, March 17, 1877. 

The Senate resumed the consideration of the resolution submitted by Mr. Mitchell on 
the 14th instant, to authorize the Committee on Privileges and Elections to appoint a 
subcommittee to sit during the recess for the investigation of the charges against La Fay¬ 
ette Grover, a Senator from the State of Oregon; and 

The question being on the amendment proposed by Mr. Saulsbury, viz: Strike out all 
after the word “resolved” and in lieu thereof insert: 

“ That the Committee on Privileges and Elections, to which was referred a resolution 
of the Senate relating to the election of La Fayette Grover as Senator from the State of 
Oregon, be, and the said committee is, instructed to appoint the judge of the fourth judi¬ 
cial district of said State a commissioner to take testimony relating to the matters re¬ 
ferred to in said resolution, and the said commissioner so appointed shall have power 
and authority, and it shall be his duty, to issue subpoenas for witnesses as well on behalf 
of the said La Fayette Grover as against him, and to give due notice of the time and 


LA. FAYETTE GROVER. 


665 

place when and where the testimony will he taken. The testimony so taken shall he 
forwarded to the said committee, which shall report the same, with their conclusions 
thereon, at the next regular session of the Senate,” 

On motion by Mr. Mitchell to amend the amendment by striking out all after the 
word “instructed” and in lieu thereof inserting: 

“ To appoint from its members a subcommittee of three, who shall take testimony re¬ 
lating to the matters referred to in said resolution and report to the full committee on 
the first Monday in December next; and for such purpose said subcommittee shall have 
power to sit in vacation; and if they deem expedient, go to the State of Oregon; and 
such committee shall have power to employ a clerk, stenographer, and sergeant-at-arms, 
and shall have all the powers of the general committee to administer oaths and send for 
persons and papers; and the expenses of such subcommittee, not exceeding $10,000, shall 
be paid out of the contingent fund of the Senate, upon vouchers to be approved by the 
chairman of such subcommittee,” 

After debate, 

It was determined in the affirmative. 

On motion by Mr. Davis, of West Virginia, to amend the amendment as amended by 
striking out the work “clerk,” it was determined in the negative—yeas 10, nays 34. 

On motion by Mr. Davis, of West Virginia, the yeas and nays being desired by one- 
fifth of the Senators present, 

Those who voted in the affirmative are Messrs. Beck, Davis of West Virginia, Dennis, 
Harris, Hereford, Hill, McCreery, McPherson, Wallace, and Whyte. 

Those who voted in the negative are Messrs. Allison, Anthony, Bayard, Blaine, Bogy, 
Chaffee, Christiancy, Conkling, Davis of Illinois, Dorsey, Eaton, Garland, Hamlin, In¬ 
galls, Johnston, Jones of Nevada, McMillan, Maxey, Mitchell, Morrill, Morton, Oglesby, 
Paddock, Patterson, Plumb, Randolph, Rollins, Sargent, Saulsbury, Saunders, Spencer, 
Teller, Wadleigh, and Windom. 

So the amendment to the amendment was not agreed to. 

On motion by Mr. Saulsbury to further amend the amendment by adding thereto the 
following: 

‘ ‘And that the said L. F. Grover shall be notified of the sessions of the said subcom¬ 
mittee, with the right to be present at the examination of witnesses,” 

It was determined in the affirmative. 

The amendment of Mr. Saulsbury, as amended, was then agreed to; and, 

On the question to agree to the resolution as amended, as follows: 

“Resolved , That the Committee on Privileges and Elections, to which was referred a 
resolution of the Senate relating to the election of La Fayette Grover as Senator from the 
State of Oregon, be, and the said committee is, instructed to appoint from its members 
a subcommittee of three, who shall take testimony relating to the matters referred to in 
said resolution, and report to the full committee on the first Monday in December next; 
and for such purpose such subcommittee shall have power to sit in vacation, and, if they 
deem expedient, go to the State of Oregon; and such subcommittee shall have power to 
employ a clerk, stenographer, and sergeant-at-arms, and shall have all the power of the 
general committee to administer oaths and send for persons and papers; and the expenses 
of such subcommittee, not exceeding $10,000, shall be paid out of the contingent fund 
of the Senate upon vouchers to be approved by the chairman of such subcommitte; and 
that the said L. F. Grover shall be notified of the sessions of the said subcommittee, with 
the right to be present at the examination of witnesses,” 

It was determined in the affirmative—yeas 39, nays 8. 

On motion by Mr. Whyte, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Allison, Anthony, Bayard, Blaine, Bogy, 
Booth, Bruce, Chaffee, Christiancy, Coke, Conkling, Davis of Illinois, Dorsey, Eaton, 
Garland, Hamlin, Hoar, Howe, Johnston, Jones of Nevada, McMillan, McPherson, 
Maxey, Mitchell, Morgan, Morrill, Morton, Oglesby, Paddock, Patterson, Randolph, 
Rollins, Sargent, Saunders, Spencer, Teller, Wadleigh, Windom, and Withers. 

Those who voted in the negative are Messrs. Cockrell, Davis of West Virginia, Harris, 
Hereford, McCreery, Merrimon, Wallace, and Whyte. 

So the resolution was agreed to. 

[The debate is found on pages 43-46 of the Congressional Record, vol. vi.] 

Friday, December 14, 1877. 

On motion by Mr. McMillan, 

Ordered , That the testimony taken before the subcommittee of the Committee on Priv¬ 
ileges and Elections, designated to investigate certain charges against La Fayette Grover, 
a Senator from the State of Oregon, be printed. 


664 


SENATE ELECTION CASES. 


Saturday, June 15, 1878. 

Mr. Wadleigh, from the Committee on Privileges and Elections, who were instructed 
by the resolution of the Senate of March 9,1877, to investigate certain matters touching 
the election of La Fayette Grover as a Senator from the State of Oregon, submitted a 
report (No. 540), with a recommendation that the committee be discharged from the 
further consideration of the resolution, and that any member of said committee have 
leave to present to the Senate, at the present or the next session, his views in writing 
upon said testimony; and 

Leave was granted as requested. 

******* 

Mr. Saulsbury, from the Committee on Privileges and Elections, submitted his views 
on the question of the election of La Fayette Grover as a Senator from the State of Ore¬ 
gon, to accompany the report of the committee (No. 540) this day made. 

REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Wadleigh (chairman), Mitchell, Cameron of Wis¬ 
consin, McMillan, Hoar, Ingalls, Saulsbury, Merrimon, and Hill.] 

In the Senate of the United States. 

June 15, 1878. —Ordered to be printed. 

Mr. Wadleigh, from the Committee on Privileges and Elections, submitted the fol¬ 
lowing report: 

The Committee on Privileges and Elections, to whom was referred the resolution of 
the Senate authorizing said committee to investigate and report upon charges that the 
election of La Fayette Grover as a Senator from the State of Oregon was procured by 
bribery, corruption, and other unlawful means, report that in their opinion the evidence 
taken does not sustain any of said charges against him. 

Your committee therefore ask to be discharged from the further consideration of said 
resolution and that any members of said committee have leave to present to the Senate 
at the present session or the next session their views in writing upon said testimony. 

VIEWS OF MR. SAULSBURY. 

Mr. Saulsbury, a member of the subcommittee on Privileges and Elections, appointed 
to take testimony in reference to the election of the Hon. L. F. Grover as Senator, con¬ 
curring in the foregoing conclusion of the committee, submits more at length his own 
views. 

At the special session of the Senate in March, 1877, the following resolution, offered 
by Senator Grover, was adopted, referring to the Committee on Privileges and Elections 
certain memorials which had been presented to the Senate, and requiring said commit¬ 
tee to investigate the allegations therein contained. The resolution is in the following 
words: 

“ Resolved , That the thirteen memorials heretofore presented to the Senate by Hon. 
J. H. Mitchell, purporting to be signed by 369 citizens of the State of Oregon, reciting 
that it was currently reported and generally believed that the election of L. F. Grover 
as a Senator of the United States was procured by bribery, corruption, and other un¬ 
lawful means in the legislature of the State of Oregon, and that the said L. F. Grover 
did corruptly and fraudulently issue a certificate of election to one E. A. Cronin as a 
Presidential elector on December 6, 1876, and that the said L. F. Grover did bear false 
witness before the Senate Committee on Privileges and Elections on or about January 
6, 1877, be now referred to the Committee on Privileges and Elections, who shall thor¬ 
oughly investigate and report upon the foregoing charges, with power to send for persons 
and papers. ’ ’ 

The following is a copy of the memorials referred to in the foregoing resolution: 

To the Senate of the United States: 

Whereas it is currently reported and generally believed that L. F. Grover by bribery, 
the corrupt use of money, and other unlawful and dishonorable means procured his 
election to the Senate of the United States by the legislature of the State of Oregon at 
its last session; and 

Whereas the said L. F. Grover, in obedience to a corrupt scheme to defraud the State 
of Oregon of its proper electoral vote, as the governor thereof did unlawfully, dishon¬ 
estly, corruptly, and by acts of usurpation, declare elected to the office of Presiden¬ 
tial elector for the State of Oregon, on the 6th day of December, 1876, and did issue a 


LA FAYETTE GROVER. 665 

certificate of election to one E. A. Cronin, who had been defeated bj the people for said 
office by more than 1,000 majority; and 

Whereas the said L. F. Grover did fraudulently undertake to sustain his said act 
by falsely testifying as a witness concerning the same before the Senate Committee on 
Privileges and Elections on or about the 6th day of January, 1877: 

Now, therefore, we, the undersigned, citizens of the State of Oregon, earnestly but 
respectfully ask that the said L. F. Grover be denied a seat in the United States Senate 
as a Senator from the State of Oregon until the foregoing charges are thoroughly investi¬ 
gated and disproved. 

M. L. WILMOT and others. 

Subsequently during the same session a resolution was adopted by the Senate instruct¬ 
ing the Committee on Privileges and Elections to appoint a subcommittee from its mem¬ 
bers to take testimony relating to the matters ref erred to in the said memorials and report 
the testimony taken to the full committee on the first Monday of the present session. 

The following is the resolution last referred to: 

That the Committee on Privileges and Elections, to which was referred a resolution 
of the Senate relating to the election of La Fayette Grover as Senator from the State of 
Oregon, be, and the said committee is, instructed to appoint from its members a subcom¬ 
mittee of three, who shall take testimony relating to the matters referred to in said 
resolution and report to the full committee on the first Monday in December next; and 
for such purpose such subcommittee shall have power to sit in vacation and if they deem 
expedient go to the State of Oregon; and such subcommittee shall have power to employ 
a clerk, stenographer, and sergeant-at-arms, and shall have all the powers of the general 
committee to administer oaths and send for persons and papers; and the expenses of such 
subcommittee, not exceeding $10,000, shall be paid out of the contingent fund of the 
Senate upon vouchers to be presented by the chairman of such committee.” 

In obedience to said resolution a subcommittee consisting of the late Senator Morton, 
Senator McMillan, and the undersigned, was appointed, who proceeded to Portland, in 
the State of Oregon, and examined a large number of witnesses, whose testimony has 
already been printed by order of the Senate. 

The undersigned, as a member of the subcommittee charged with the duty of making 
the investigations required by the first mentioned resolution, begs leave respectfully to 
submit his own conclusions from the evidence taken. 

An examination of the testimony will show that the widest latitude was given to the 
investigation by the subcommittee. Witnesses were not restricted to matters within 
their own knowledge, but were Allowed to testify as to their beliefs and suspicions, un¬ 
supported by any facts, and to narrate hearsay evidence of no higher character than the 
fugitive rumors which are not unfrequently current on the streets of a State capital 
preceding the election of a United States Senator. 

It may be at times impossible for a legislative committee to apply to an investigation 
with which it is charged the rules which govern the admissibility of evidence in courts 
of justice, but the undersigned must be allowed to express his conviction that in an in¬ 
vestigation into the truth of allegations affecting the personal honor of a member of the 
Senate, as well as his right to a seat in the body, no such wide departure should be al¬ 
lowed in the admission of testimony as the evidence in this case will show was permitted. 
While Senator Grover can have no cause to regret the latitude that was given to the 
inquiry into matters alleged against him or the regularity of his election, by reason of 
anything elicited against him or those to whom he owes his election to the Senate, it 
ought not to be allowed to become a precedent to govern similar investigations in the 
future. 

The undersigned objected at the very commencement of the investigation to the lati¬ 
tude in the examination of witnesses which is usually allowed in investigations by leg¬ 
islative committees, and insisted on an observance, as far as possible, of the rules which 
obtain in courts of justice in that regard. Had his suggestion been adopted in practice, 
the testimony in this case would have been compressed into a very narrow compass, and 
would have excluded a large mass of irrelevant testimony taken by the subcommittee. 
The undersigned begs leave to refer to the objections which he made on this point, found 
at pages 9, 10, and 11 of the printed testimony. 

Without reviewing in detail the testimony taken by the subcommittee, the undersigned 
has no hesitation in saying that, so far from justifying the insinuations contained in the 
memorials presented to the Senate and referred to the Committee on Privileges and Elec¬ 
tions, it completely vindicates Senator Grover from the aspersions attempted to be cast 
upon him, and establishes beyond question the regularity and fairness of his election as 
a Senator. 

The testimony shows that the two houses of the Oregon legislature voted separately 
for Senator on the day fixed by the act of Congress, and met in joint convention and voted 


SENATE ELECTION CASES. 


666 

ior Senator daily thereafter until Senator Grover received the votes of a majority of all 
the members of the legislature. In the vote taken in the two houses separately, and in 
every vote in the joint convention, he received a larger number of votes than any other 
candidate. 

The testimony will further show that Senator Grover, in the final caucus of the Dem¬ 
ocratic members of the legislature, received the caucus nomination, and was thereafter 
the only recognized candidate of his party for the position, and as such received ulti¬ 
mately the vote of every democratic member of the legislature. 

The testimony further shows that during the contest for Senator Governor Grover 
repeatedly assured his personal and political friends that he did not desire and would not 
have an election that was not honorable to himself and his party, and offered to with¬ 
draw from the contest if the Democratic members could agree upon any other candidate. 

In the opinion of the undersigned, no member of the Senate is freer from suspicion of 
having procured his election to the body by improper means than Senator Grover, while 
none perhaps has been subjected to more unjust and slanderous accusations, or could 
have vindicated his character more completely against the assaults of personal and 
political foes. 

The only witness who directly or indirectly sought to connect Senator Grover with 
bribery, or who in fact professed to know anything about the corruption of any member 
of the legislature, was a man by the name of Styles. This witness, who had made an af¬ 
fidavit to be sent to Washington to be used to prevent Governor Grover from taking his 
seat in the Senate, testified before the committee to a conversation between Governor 
Grover, Mr. Gilfry, and William H. Watkins in reference to the purchase of the vote 
of a member of the legislature by the name of Goodman, and also to a conversation which 
he had with Goodman, and also to seeing another member, by the name of Mosier, come 
out of the room of Governor Grover into the room of Mr. Gilfry with several hundred 
dollars in gold in his hands. In reference to the first statement he was contradicted by 
Goodman, Gilfry, and Watkins, and in reference to the second by Gilfry and Mosier. 
See testimony of Mr. Goodman, page 445, from which the following extract is taken: 

‘ ‘ [The Senator here called the attention of the witness to certain passages in the 
testimony of Mr. Styles, as printed in a newspaper which he held in his hand.] 

“ Question. Did Governor Grover ever make any promise to you of any office whatever 
in case he was elected ?—Answer. Never. 

“Q. Did he approach you on the subject of voting for him?—A. I had a talk with 
Governor Grover, but he did not mention concerning my voting for him. 

“Q. He said nothing in that conversation in the way of inducements; he held out no 
inducements for you to vote for him ?—A. He did not offer me any inducement what¬ 
ever; in the talk with him he asked me if I was not afraid that I was injuring the pros¬ 
pects of the Democratic party in this State by holding out as I did against the caucus, 
but he never during the conversation asked me to vote for him. 

“ Q. Did you state to this man Styles at any time that you could get a thousand dol¬ 
lars for your vote ?—A. I never did. I consider that that gentleman has done me and 
Governor Grover a great injustice, and he stands before the people of Oregon to-day a 
perjured villain. 

“Q. No person in your county, as I understand, believes any such allegation against 
you? 

“Senator McMillan. Senator, that is taking a pretty wide range, it seems to me. 

“ Senator Saulsbury. No, sir; this gentleman is a man of character, and I take it 
that he has a right to say before this committee what he knows as to what his neigh¬ 
bors think of this thing. 

“The Witness. No, sir; nobody believes it. 

“ Q. Are you regarded in your community as a corrupt man ?—A. I think not; I hope 
not, at least. 

“ Q. Do you believe there are any Republicans in that county that would charge it 
upon you?—A. I don’t believe there are. 

“Q. Now I will ask you this question, Mr. Goodman: Did you ever, directly or indi¬ 
rectly, receive one dollar for your vote for Governor Grover for the Senate ?—A. No, sir, 
never; not one dollar. No man ever approached me upon that subject, either of the 
Grover faction or the Nesmith faction. 

“Q. Were you, directly or indirectly, influenced by any pecuniary consideration or 
reward, in any shape, manner, or form, or by promises of office or money, directly or indi¬ 
rectly, in connection with your vote for Governor Grover for the Senate ?—A. There was 
no influence brought to bear upon me whatever. ’ ’ 

See also the testimony of Mr. Watkins, page 589, &c. 

See also testimony of J. H. Mosier, page 412, from which the following extract is 
taken: 

“Question. Do you know a man by the name of W. H. N. Styles, who has testified 


LA FAYETTE GROVER. 


667 


before the committee ?—Answer. I never saw the man that I know of. That is him right 
over there, I believe [turning to the left and pointing to a row of by-standers]. No, I am 
mistaken; I beg your pardon; that is a better-looking man than he was. I will take it 
all back. He was sitting right over there [pointing] a few moments ago. 

“ Q. You say you never saw the man that you know of—never saw him till now?— 
A. I never saw him till yesterday. I never saw him in my life that I know of till I 
came here. 

“ Q. That man in his testimony swears as follows: 

“ ‘ Q. Did you see Hosier at any time after the election ?—A. I did. 

“ ‘ Q- Where did you see him ?—A. I was introduced to him in Mr. Gilfry’s office.’ 

‘ ‘ Q. Now, I ask you, Mr. Mosier, if it is true that you were introduced to Mr. Styles 
in Mr. Gilfry’s office, as he swears?—A. I never was; I never was introduced to any man 
by that name. 

“Q. lie says in his testimony as follows: 

‘ ‘ ‘ Q. When was that ?—A. One or two days after the election I sat down there waiting 
for Mr. Gilfry to come in. As I sat there perhaps fifteen minutes, I guess, some gentle¬ 
man came in. I supposed Mr. Gilfry was in the other room. I heard some one talking 
in there, but I did not go in. I sat down there. The gentleman came in who was in 
the other room, that is, in the governor’s room. I may have sat there fifteen or twenty 
minutes and Mr. Mosier came in from the governor’s room. ’ 

“ Q. I ask you now, Mr. Mosier, if that assertion in this testimony is true ?—A. It is 
not, sir. I never was in the governor’s private room in my life to my knowledge. 

“ Q. You say here upon your honor and upon your oath that that is not true ?—A. I 
never was in Governor Grover’s private room in my life. 

“ Q. The testimony of Mr. Styles goes on: 

“ ‘ Q. Mr. Mosier came in from the governor’s room?—A. Yes, sir. 

“ ‘ Q. Through the door in the partition ?—A. Yes, sir. He came into the room where 
I was and had money in his hand. ’ 

“Q. I ask you, sir, if on any occasion you ever were in the governor’s room?—A. I 
was not, to my recollection. 

‘ * Q. I ask you, sir, if you ever came out of the governor’s room with money in your 
hand?—A. No, sir; and any man that makes that assertion or testifies to that statement 
is a liar. 

“Senator McMillan. Mr. Mosier, the use of that kind of language does not add any¬ 
thing to the strength of your testimony. 

“Senator Saulsbuby (to the witness). Say it in your own language, sir. You have a 
perfect right to defend and vindicate your reputation here and elsewhere. 

“The Witness. Yes, sir; I have, and I will do it, too. I have a right to say what I 
know about this thing, and I say it is false. 

“ [The answer of the witness was greeted by applause from a portion of the by-stand¬ 
ers.] 

‘ ‘ The Chaibman. I said a while ago that if these unseemly demonstrations were 
repeated I should feel it to be necessary to clear this room. Any demonstrations of applause, 
or otherwise, calculated either to encourage and embolden or to discourage and intimi¬ 
date a witness are evidently improper. I shall let it pass this time; but if after this 
second warning this thing is repeated I shall have the room cleared. I do not want to 
give anybody any offense, or to put anybody out if I can help it, but such demonstrations 
as this are highly improper, as every man who indulges in it must know, and cannot be 
tolerated here. 

“The Witness. These things do not encourage me any; I shall state the facts all the 
same, whether they stamp their feet or not.” 

See also testimony of H. H. Gilfry, from which the following extract is taken: 

“Senator Saulsbuby. I ask you, sir, if you ever saw Mr. Mosier in Governor Grover’s 
private office ?—Answer. No, sir; I did not. I do not think he was in there at all during 
the session of the legislature. 

“Q. Was he ever in the governor’s private office with you?—A. Mr. Mosier? No, 
sir; he never was. 

“ Q. Did you ever see any money paid to Mr. Mosier?—A. I never did; no, sir. 

“Q. Or to any other member of the legislature?—A. I never did; not a cent, sir. 

“ Q. On the occasion here referred to, or at any other time?—A. No, sir; never. 

“Q. Did you ever see Mr. Mosier with any money in his hand in your room?—A. No, 
sir. 

“Q. Or anywhere else?—A. No, sir. 

“ Q. Did you ever come from the governor’s room into your own office and find Mr. 
Styles in your own office?—A. No, sir; I never did. 

“Q. Do you pronounce that statement, then, so far as it relates to you, an unmiti¬ 
gated falsehood ?—A. I do, emphatically. It is an unmitigated falsehood, without any 
foundation whatever.”—(Testimony, page 578.) 


668 


SENATE ELECTION CASES. 


In relation to other matters testified to by Styles, intended to affect the character of 
Senator Palmer, of the State legislature, he is not only contradicted most positively by 
Senator Palmer, but his testimony is proven to be false by the overwhelming testimony 
of from four to seven witnesses, on every important point. 

Styles is also impeached by more than twenty witnesses, who swear that his character 
for truth was bad, and that they would not believe him on oath. 

Nothing but the importance which w 7 as attached to the statements of this man Styles 
by those who originated and prosecuted the charges against Senator Grover could have 
justified so extended a notice of his testimony; but it would be improper to dismiss the 
statements of this witness without saying that for his perjury in this investigation he 
was indicted in the United States district court in Oregon and tried before a jury largely 
composed of Republicans, eleven of whom were in favor of conviction to one opposed; 
and on a second trial he again escaped because of a divided j urv. At this last trial the 
most important witness to prove the guilt of the accused was necessarily absent, attend¬ 
ing to his public duties in Washington. 

It will be observed from an examination of the testimony that the theory of those who • 
sought to impeach the regularity of the election of Senator Grover was that the money 
used in the alleged bribery of members of the legislature was furnished by the Hon. 
Joseph S. Smith, formerly a member of Congress, and Hon. B. Goldsmith, formerly mayor 
of the city of Portland. Mr. Smith came before the subcommittee and swore that he 
never, directly or indirectly, furnished any money to influence the vote of any member of 
the legislature on the Senatorial or any other question; that he was in Salem but once, 
and only for a short time, during the Senatorial contest, and then only to prevent the use 
of his own name for the position, which he had been informed might be done; and that 
he did not while there speak to any member of the general assembly on the subject of 
electing a Senator. 

Mr. Goldsmith was, during the investigation, in the city of New York with one of his 
children, whom he had taken there for the purpose of having a difficult operation per¬ 
formed, and was consequently not before the committee, but telegraphed to the chairman 
his willingness to appear at any time and place convenient to the committee, and testify 
touching his alleged complicity with the corruption of members of the legislature, and 
subsequently sent an affidavit denying emphatically having furnished one dollar for the 
purpose of affecting the action of any member of the legislature upon the Senatorial ques¬ 
tion. Independently of the statements of Mr. Goldsmith himself, it was abundantly 
proved that he took but very little part in the contest, and was present in Salem only to 
procure legislation affecting his own interest, and for that reason was careful not to be¬ 
come mixed up in the Senatorial question, which might prejudice his own business before 
the legislature. Besides, it was conclusively shown that Mr. Goldsmith’s financial con¬ 
dition was at the time such that he could not, if he had desired, advance money for so 
improper a purpose. 

The only members of the legislature who voted for Senator Grover against whom the 
least whisper of suspicion was heard in the undefined rumors circulated by party malig¬ 
nity or inspired by the chagrin of disappointed hope were Mr. Goodman, of Umatilla 
County; Mr. Straight, of Clackamas County; Messrs. Mosier and Butler, of Wasco County; 
Senator Palmer, of Benton and Polk Counties; and R. W. Wilson, deceased, a represent¬ 
ative from Clatsop and Tillamook Counties. 

Whatever suspicions were indulged at any time in reference to Goodman, Straight, 
Butler, and Palmer, except so far as Mr. Goodman was charged by Styles, had their only 
foundation in the fact that they were known to be in favor of another gentleman for Sen¬ 
ator, and some of them did not recognize the binding obligation of a caucus nomination, 
and therefore did not take part in the caucus, and voted in the separate houses and in 
joint convention several times for their first choice for Senator, and until they became 
satisfied that he could not be elected, when they cast their votes for Senator Grover. 

All of those gentlemen are men of character and standing in their respective counties, 
and testified before the subcommittee denying most positively that they had been influ¬ 
enced in voting: for Governor Grover by any corrupt or other improper consideration, and 
explained fully their entire course upon the Senatorial question. Neither of them had 
aught against Senator Grover, who, they declared, was from the first their second choice. 
Their testimony is full upon this point, and the undersigned refers to it with full confi¬ 
dence that it will satisfy every one who will take the trouble to read it of the candor and 
honesty of the witnesses, not only in testifying before the subcommittee, but in their 
entire action upon the Senatorial question. 

With reference to Mr. Mosier, his indiscreet conversation while intoxicated gave rise to 
suspicions that he desired to procure money for his vote for Senator, and the man Styles 
was doubtless instigated thereby to charge him with having received money from Gov¬ 
ernor Grover, as already stated. The testimony of Mr. Mosier in reply to the statements 
of Styles has already been given. In his testimony he further stated that his only ob¬ 
ject in the conversations cited against him was to ascertain the truth of rumors to the 


LA FAYETTE GROVER. 


fi69 


effect that money was being used to defeat the election of Senator Grover, and that he 
neither received nor desired to receive one cent for his vote on the Senatorial question. 
The testimony shows that he voted in caucus and on every vote but one in the separate 
houses and in joint convention of the two houses for Senator Grover, and that he with¬ 
drew his support from Grover on one vote because he was informed that the Senator was 
opposed to certain local improvements in which the people of his county were interested, 
and upon being assured that he had been misinformed upon that point he again voted 
steadily for Governor Grover, who w T as his first choice. He was shown to be a reputable 
and honest man by persons who had known him for a long time, and to be in good cir¬ 
cumstances and under no necessity to obtain money in any improper way. The under¬ 
signed does not believe that Mr. Mosier was either given or promised pecuniary or other 
reward lor his support of Senator Grover, and that whatever suspicions were entertained 
against his integrity were traceable to his own indiscreet conduct while in a state of 
inebriety. 

The only other member whose character was assailed by suspicions detailed before the 
subcommittee was R. W. Wilson, deceased. Mr. Wilson, being dead, could not person¬ 
alty vindicate his character before the subcommittee; but'every ground alleged for the 
suspicions entertained by any one against him was fully met and shown to be without 
foundation. 

He was shown by the testimony of Governor Chadwick and other gentlemen who 
knew him well to be a man of sterling integrity and character, and in the opinion of 
the undersigned, based upon the testimony before the subcommittee, not the slightest 
justification existed for the attempted defamation of his fair name while living or his 
memory now that he is no more. He had always been a Democrat of the strictest sect, 
adhering to the usages of the party and supporting its candidates, whether made in con¬ 
vention or in caucus, and but followed out the rule of his life and the will of his constit¬ 
uents in supporting Governor Grover after he was nominated in caucus, although his 
personal predilections were in favor of another. 

An attempt was made by a Republican by the name of Brown, an employ^ about the 
custom-house in Portland, to induce him by an offer of $1,500 to vote against Grover. 
Mr. Wilson communicated this insult to friends and took legal advice with a view of 
prosecuting Brown criminally for his offense. Brown testified before the committee to 
his own infamy and guilt, but failed to inculpate Wilson in his crime or cast a stain upon 
his untarnished memory. In the opinion of the undersigned no more unjustifiable at¬ 
tempt or more signal failure was ever made to blast the reputation of a worthy man. 

A careful examination of the testimony taken before the subcommittee it is confidently 
believed will satisfy any unbiased mind that the story of bribery and corruption in the 
Election of Senator Grover was unwarranted by any fact or circumstance worthy of a 
moment’s consideration. Even the most uncharitable political opponent will find in 
that testimony not only ample refutation of the slanderous rumors circulated to the 
prejudice of Senator Grover and the members of the legislature who supported him, but 
abundant proof that his election to the Senate was free from every taint and honorable 
alike to him and the legislature of Oregon. 

It will be observed that the memorials hereinbefore set out, referred to the Committee 
on Privileges and Elections, do not charge Senator Grover directly with procuring his 
election to the Senate by corrupt means, but simply state that “it is currently reported 
and generally believed ’ ’ that such was the fact, and ask that he be denied a seat in the 
Senate until these charges are investigated. The undersigned cannot withhold the ex¬ 
pression of his conviction that great injustice was done to Senator Grover by the consid¬ 
eration given in the Senate to these loose and undefined charges, if charges they can be 
called. They were made the basis of an objection to his right to a seat in the Senate, 
which was not withdrawn until it had been announced on the floor of the Senate that 
he would ask an investigation. 

It is the first time in the history of the Senate when charges so vague and indefinite 
against a member-elect have received the least consideration, and it is to be hoped that 
it will not hereafter be regarded as a precedent to excuse injustice to others entitled to 
seats in this body. The testimony will show that these memorials were distributed 
from the custom-house in Portland (where they were proved to have been first seen) 
through the mails to Republican postmasters for the purpose of procuring signatures; 
and the man Brown, already referred to, employed in some subordinate position about 
that building, testified that he went into different counties with these petitions for that 
purpose. With the exception of this man Brown, no satisfactory proof could be obtained 
as to who were the guilty parties; but in the opinion of the undersigned, drawn from 
all the facts and circumstances proved in this investigation, the charges against Senator 
Grover contained in these memorials originated in a conspiracy to deprive him, by per¬ 
jury and subornation of perjury, of a seat in the Senate to which he had been fairly 
elected by the legislature of Oregon. 


ELI SAULSBURY. 


370 


SENATE ELECTION CASES. 


[Forty-fifth Congress—Second and third sessions.] 

STANLEY MATTHEWS, 

Senator from Ohio from October 15, 1877, till March 3, 1879. 


June 5,1878, Mr. Matthews submitted a resolution that a select committee be appointed to consider 
what connection, if any, he had had with any real or pretended frauds committed in the conduct 
and returns of the election in the State of Louisiana in 1876, and with any promises of reward made 
by any one to one James E. Anderson in consideration of any official conduct by said Anderson in 
relation to said election, and to inquire into all the circumstances of any recommendation by him¬ 
self of the said Anderson for appointment to office. The resolution was agreed to. March 1, 1879, 
the committee reported that they met on the 21st day of June, 1878, for the purpose of examining 
Mr. Anderson ; that he refused to testify ; that Congress having adjourned they could not compel 
him to testify; that the committee met again in December, 1878, and not agreeing to a motion that 
the Senate be requested to take proceedings to compel Mr. Anderson’s attendance, reported to the 
Senate a resolution that the House of Representatives be requested to transmit to the Senate a copy 
of Mr. Anderson’s testimony relating to Mr. Matthews before a House committee; that the testi¬ 
mony was transmitted and referred to this committee January 28,1879; that Mr. Matthews was then 
examined. The committee found unanimously the statements of Mr. Matthews to be true; that 
he had had no connection with any real or supposed frauds in the election in Louisiana, and that 
he was not guilty of any corrupt conduct in any of the matters referred to in the testimony, while 
they regarded his action in respect to Mr. Anderson’s effort to obtain an appointment to office, 
under the circumstances, as wrong and injuriohs to the public interest. No further action on the 
subject was taken by the Senate. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journals 45th Cong., 2d and 3d sess., and the report of the committee from 
Senate Reports, 45th Cong., 3d sess., vol. 2, No. 867. 

There were no debates. 


Wednesday, June 5, 1878. 

Mr. Matthews rose to a question of privilege, and having addressed the Senate upon 
the subject of certain statements made elsewhere, calculated to reflect upon his charac¬ 
ter and standing as a member of the Senate, submitted the following resolution; which 
was considered by unanimous consent, and agreed to: 

11 Resolved, That a select committee of seven Senators be appointed to inquire into and 
consider all things touching the matter stated and referred to by the Senator from Ohio 
[Mr. Matthews] and the events connected therewith, and particularly what connection, 
if any, that Senator had with any real or pretended frauds or other wrongs committed in 
the conduct and returns of the election in the State of Louisiana in 1876, and with any 
promises of protection or reward, if any, made by any one to one James E. Anderson, or 
others, in consideration of, or connection with, any official conduct by said Anderson or 
others, in relation to said election or the returns thereof; and into all the circumstances of 
any recommendation by the said Senator of the said Anderson for appointment to office; 
and that said committee have power to send for persons and papers, to employ a clerk and 
stenographer, and have leave to sit during the recess.” 

Ordered , That the committee be appointed by the President pro tempore. 

[Mr. Matthews’s remarks are found on page 4119 of the Congressional Record, vol. vii 
part 4.] 

Saturday, June 8, 1878. 

The President pro tempore appointed Mr. Edmunds, Mr. Allison, Mr. Ingalls, Mr. Hoar, 
Mr. Davis of Illinois, Mr. Whyte, and Mr. Jones of Florida members of the select com¬ 
mittee authorized by the resolution of the 5th instant to inquire into certain matters 
touching the late Presidential election in Louisiana. 


Wednesday, June 12, 1878. 

On motion by Mr. Allison, 

Ordered , That the select committee appointed to inquire into certain matters touch¬ 
ing the late Presidential election in Louisiana have leave to sit during the sessions of the 
Senate. 

Wednesday, June 19,1878. 

Mr. Allison submitted the following resolution; which was considered by unanimous 
consent, and agreed to: 

‘ 1 Resolved, That the select committee appointed under the resolution of the 5th instant 
to make inquiry concerning the alleged connection of Senator Matthews with matters 
relative to the late Presidential election in Louisiana, in exercising the power heretofore 
granted to sit during the recess of Congress, may hold its sessions at such place or places 
as it shall deem most convenient for the purposes of the investigation.” 


STANLEY MATTHEWS. 


671 


[Third session of the Forty-fifth Congress.] 

Tuesday, December 10, 1878. 

Mr. Allison, Irom the select committee to inquire into certain matters touching the 
late Presidential election in Louisiana, reported the following resolution which was con¬ 
sidered by unanimous consent, and agreed to: 

Resolved , That the House of Representatives be respectfully requested to transmit to 
the Senate a copy of the testimony of one James E. Anderson relating to the Hon. Stan¬ 
ley Matthews, a member of the Senate from the State of Ohio, understood to have been 
taken before one of the committees of the House of Representatives.” 

Monday, January 27, 1879. 

A message from the House of Representatives, by Mr. Adams, its Clerk: 

“ Mr. President, I am directed to communicate to the Senate, in compliance with its 
request of December 10, 1878, a copy of the testimony of James E. Anderson, given be¬ 
fore the committee of the House of Representatives on investigation of alleged frauds in 
the electoral vote of the States of Louisiana and Florida. ’ ’ 


Tuesday, January 28, 1879. 

The testimony* of James E. Anderson before a committee of the House of Represent¬ 
atives, yesterday received from the House of Representatives in response to a resolution 
of the Senate of December 10, 1878, was referred to the select committee to inquire into 
certain matters touching the late Presidential election in Louisiana, and ordered to be 
printed. 

Saturday, March 1, 1879. 

Mr. Allison, from the select committee who were directed by a resolution of June 5, 
1878, to inquire into certain matters touching the late Presidential election in Louisiana, 
submitted a report (No. 867) thereon, with the recommendation that they be discharged 
from the further consideration of the subject. 

REPORT OF COMMITTEE. 

In the Senate of the United States. 

March 1, 1879.—Ordered to be printed. 

Mr. Allison, from the Select Committee to inquire into certain matters touching the 
late Presidential Election in Louisiana, submitted the following report: 

The committee appointed in pursuance of the following resolution adopted by the 
Senate on the 5th June, 1878— 

“ Resolved , That a select committee of seven Senators be appointed to inquire into and 
consider all things touching the matter stated and referred to by the Senator from Ohio 
[Mr. Matthews], and the events connected therewith, and particularly what connection, 
if any, that Senator had with any real or pretended frauds or other wrongs committed in 
the conduct and returns of the election in the State of Louisiana in 1876, and with any 
promises of protection or reward, if any, made by any one to one James E. Anderson, or 
others, in consideration of or connection with any official conduct by said Anderson or 
others, in relation to said election or the returns thereof; and into all the circumstances 
of any recommendation by the said Senator of the said Anderson for appointment to office; 
and that said committee have power to send for persons and papers, to employ a clerk 
and stenographer, and have leave to sit during the recess”— 
submit the following report of their proceedings: 

The committee held its first meeting on the 11th June, 1878, and determined, on the 
13th of June, to summon James E. Anderson, named in said resolution. Mr. Anderson 
appeared, but was not examined, for the reason that his presence was requested before a 
committee of the House, known as the Potter committee, as appears from the following 
letter addressed to the acting chairman: 

House of Representatives, 

Washington , D. C. , June 13, 1878. 

Mr. Senator Allison, 

Chairman , &c.: 

Mrs. Jenks is about to be put on the stand, and we would prefer, if entirely agreeable 
to the Senate committee, that Mr. Anderson should be present during her examination. 
This is important to the House committee. At any other time take him. 

W. R. MORRISON, 

c Acting Chairman. 

* Found in Senate Miscellaneous, 42d Cong., 3d sess., vol. 1, No. 50. 



672 


SENATE ELECTION CASES. 


The committee again met on the 21st of June, when Anderson, the witness, again ap¬ 
peared and refused to testify; the circumstances of his refusal are fully set forth in the 
printed proceedings of the committee herewith reported. Congress having adjourned on 
the 20th day of June, 1878, the committee had no power to compel the witness, Ander¬ 
son, to testify. On motion of Mr. Whyte, the committee adjourned to meet again when 
called by the chairman of the committee, it being then understood that no meeting would 
be called during the recess of Congress, as the committee had no power to enforce its 
orders in vacation. The committee again met on the 10th day of December, 1878. The 
chairman stated that he had received a telegram from James E? Anderson, dated Eureka, 
Nev., saying that he would now appear before the committee if summoned. On motion of 
Mr. Edmunds, it was 

“ Ordered , That there be reported to the Senate the following: 

“ ‘Resolved , That the House of Representatives be respectfully requested to transmit 
to the Senate a copy of the testimony of one James E. Anderson relating to the Hon. 
Stanley Matthews, a member of the Senate from the State of Ohio, understood to have 
been taken before one of the committees of the House of Representatives. ’ 

“Mr. Edmunds submitted a motion that James E. Anderson be reported to the Senate 
as in contempt of its authority for refusing to testify before this committee, and that the 
Senate be requested to take the proper proceedings to secure his attendance. 

“The motion was not agreed to, there being three ayes: Messrs. Edmunds, Davis, and 
Whyte. The noes were: Messrs. Allison (chairman), Hoar, and Ingalls. Mr. Jones, 
absent. 

“ On motion of Mr. Whyte, the committee adjourned to meet at the call of the chair¬ 
man ’ ’— 

It being understood that the committee should await the action of the House on the reso¬ 
lution calling for the testimony of Anderson taken by the House committee, which resolu¬ 
tion was reported to the Senate on the 10th of December, 1878, and agreed to. On the 28th 
day of January, 1879, the House of Representatives transmitted to the Senate the testi¬ 
mony of James E. Anderson in pursuance of the request made by resolution of the. Sen¬ 
ate heretofore referred to, passed on the 10th day of December, 1878. This testimony 
was on the 28th day of January, 1879, referred to this committee and ordered to be 
printed. On the 7th February the committee met pursuant to the call of the chairman— 

“Present: the chairman (Mr. Allison), Mr. Edmunds, Mr. Hoar, Mr. Davis, and Mr. 
Whyte”— 

When the following proceedings were had: 

“ On motion of Mr. Edmunds, Senator Matthews was directed to be notified that the 
committee had received a copy of the testimony of James E. Anderson before a select 
committee of the House of Representatives, and was ready to hear what he had to say on 
the subject. 

“The chairman having transmitted such notification, Hon. Stanley Matthews ap¬ 
peared before the committee. 

11 The Chairman. Senator Matthews, this committee now has the testimony of James 
E. Anderson, which, I believe, I called your attention to some days ago and furnished you 
a copy of; and the committee are ready to hear anything you may wish to say in reference 
to that testimony. 

“Mr. Matthews. I am ready to be sworn. 

“ Mr. Edmunds. I presume, also, the committee is ready to hear you in reference to 
whether you desire to have Mr. Anderson called for further examination by this com¬ 
mittee. 

“Mr. Matthews. In regard to the inquiry in respect to my wishes as to whether the 
committee shall recall Mr. Anderson, I desire to say that it is a matter in which I have no 
wish, and desire to express none, believing that I ought to leave the matter entirely to 
the discretion of the committee to do in that matter, and in respect to any other wit¬ 
ness, what they ought to do under the duty imposed upon them by the resolution of the 
Senate. 

“ Mr. Edmunds. We understand you to mean by that, Mr. Matthews, that in your 
judgment, so far as your own vindication is concerned, you do not desire us to compel 
him to attend. 

“ Mr. Matthews. I do not make any request of that kind to the committee, and do 
not deem it necessary that I should do so for my own vindication. 

' 1 The Chairman. Then we will proceed with your examination. 

“Hon. Stanley Matthews sworn and examined. 

“The Witness. By a reading of the resolution, Mr. Chairman and gentlemen, it ap¬ 
pears that the committee were appointed to ‘ inquire into and consider all things touching 
the matters stated and referred to ’ by myself in the personal statement which I made to 
the Senate on the 5th of June last, and reported in the Congressional Record, ‘ and par-* 


STANLEY MATTHEWS. 


673 


ticularly what connection, if any, ’ I had ‘ with any real or pretended frauds or other wrongs 
committed in the conduct and returns of the election in the State of Louisiana in 1876, 
and with any promises of protection or reward, if any, made by any one to one James E. 
Anderson or others, in consideration of or in connection with any official conduct by said 
Anderson or others in relation to said election or the returns thereof, and into all the 
circumstances oi any recommendation by the said Senator of the said Anderson for ap¬ 
pointment to office. ’ 

“ In order to enable the committee to rightly understand my relation to the whole 
subject, and also as a necessary preliminary to any statement I may have to make in 
reference to the testimony of Mr. Anderson himself, it will be necessary for me to make 
a statement in respect to the visit that I made to New Orleans in November, 1876. 

“On the 11th day of November, 1876, which was Saturday, I received a telegram at 
Cincinnati from the President of the United States, General Grant, requesting me to 
proceed to New Orleans for the purpose of witnessing, with other gentlemen, the can¬ 
vass and count of the votes in that State for the Presidential electors. I replied to that 
telegram to the effect that I would leave Cincinnati for New Orleans in obedience to that 
request that night. I learned during the course of the day that General Edward F. 
Noyes, now the United States minister at Paris, and the Hon. Job E. Stevenson, for¬ 
merly a Representative in Congress from one of the districts in Cincinnati, were also going 
on the same train, and I met them that night on the car. 

‘ ‘ On arriving at Louisville and leaving there, I ascertained that a number of gentle¬ 
men prominent in public life and members of the Democratic party were also on their 
way to New Orleans in connection with the same matter. Among others were Senator 
McDonald, ex-Senator Trumbull of Illinois, General Palmer of Illinois, a gentleman 
from Indiana, Mr. Julian, Judge Stallo of Cincinnati, and some other gentlemen, some 
from Chicago, whose names I do not now recall. 

“We reached New Orleans on Monday at or near noon, and proceeded to the St. 
Charles Hotel, where General Noyes, Mr. Stevenson, and myself took rooms. No other 
gentlemen of the Republican party who subsequently participated in the proceedings 
there arrived until the lapse of two or three days. 

“In the mean time a communication in writing had been addressed by the Democratic 
visitors to the Republican visitors, which had been put into my hands and held until 
the arrival of gentlemen who were expected to act with us, and was replied to after con¬ 
sultation, all of which was made a matter of publication at the time. In the mean time 
I had seen a great many persons in New Orleans, citizens of that place and of Louisiana, 
of both political parties, and had heard a great deal from them in reference to the general 
situation of the State in regard to the recent election, and obtained certain general 
impressions in respect to it, but did not acquire any knowledge of the details of the 
matter as it was expected that they might appear. 

‘ ‘ In the latter part of the week, not ealier than Friday and possibly on Saturday morn¬ 
ing, for the first time I saw any of the members of the returning board. On that occa¬ 
sion I met General Thomas C. Anderson and ex-Govemor J. Madison Wells at the cus¬ 
tom-house in company on my part with Mr. Sherman, the present Secretary of the 
Treasury, Mr. Stoughton of New York, and some other gentlemen whose names I do not 
recall. A general conversation ensued on the subject of the political situation in Lou¬ 
isiana and in reference to the general duties that were charged by law upon the returning 
board and its members, in which there was nothing said inconsistent with a strong ex¬ 
pression of a general desire on the part of all the persons present that there should be a 
fair, open, and lawful canvass and count of the vote, and an expression on the part of 
those charged with that of a determination to do their duty fully in that respect without 
reference to the result, and no probable result was then discussed as likely to follow any 
course that might be adopted, no intimation that it was to come out in any specific way 
one way or the other. 

“ The fact was known and referred to that there were present in the city a considera¬ 
ble number of gentlemen representing both political parties, who had come there for the 
purpose of witnessing the proceedings of the board, and it was strongly urged by Mr. 
Sherman, Mr. Stoughton, and myself upon the two gentlemen who constituted members 
of that board that there should be an invitation from the board to representatives ol 
these delegations to be present at their meetings and was acquiesced in immediately by 
General Anderson and Governor Wells, and I was requested to make a draught of a 
proper resolution containing such an invitation and request, which I immediately pro¬ 
ceeded to do, and which, after some change of phraseology, was considered to be suita¬ 
ble, was delivered into the hands of one or the other of these gentlemen for the purpose 
of being offered in the board when it should hold its first meeting, and which afterward, 
upon an examination of their published proceedings, I found to be substantially the one 
which they did in feet adopt. 

“In the mean time it became apparent to me that the proceedings which I had come 

S. Doc. 11-13 



674 


SENATE ELECTION CASES. 


down to witness would be prolonged beyond any expectation that I had entertained 
when I accepted the invitation to attend, and having left my home and business upon a 
few hours’ notice, had not made suitable preparation for any absence such as was neces¬ 
sarily required for that purpose; and I accordingly made my apologies to the gentlemen 
with whom I was expected to be associated, and left New Orleans on Saturday evening, 
being November 18, for Cincinnati, where I arrived on Monday morning, the 20th, with¬ 
out having been present at any meeting of the returning-board, without having ever seen 
any of the documents which were to be presented to them containing returns of the elec¬ 
tions or other accompanying papers, and without in any way having participated in any of 
their proceedings beyond what I have already stated. So that in answer to the question 
as to ‘ what connection ’ I had ‘ with any real or pretended frauds or other wrongs com¬ 
mitted in the conduct and returns of the election in the State of Louisiana in 1876, ’ as 
stated in the resolution of investigation, it is apparent that there was no place for any 
such connection, for I was not present in the State or at the place where anything of the 
sort was possible and knew nothing in reference to the matter. 

11 During that time, as I have already stated, I saw a great many persons of both po¬ 
litical parties, citizens of New Orleans, and of course at this time I am not able to say 
positively whom I saw and whom I did not see. I am quite sure, so far as I can be sure 
of anything of the sort, that I did not see during my stay in New Orleans Mr. James E. 
Anderson, for when I afterward saw him it was for the first time, as it appeared to me 
from his appearance. I did not recognize the fact at that time that I had ever seen him 
before. I had heard of one Anderson as being a supervisor of registration for the elec¬ 
tion in East Feliciana Parish, in connection with the fact stated in New Orleans at the 
time that one of the questions that would arise before the board in reference to the re¬ 
turns of that election would be whether the protest ought to have accompanied the re¬ 
turns, or whether it was valid, although placed upon the returns subsequently, it being 
stated that the excuse for not putting it upon the return at the time was that it could 
not be safely done by the officer for fear of his life. 

“ I refer now to the fact that I do not believe I saw Mr. Anderson in New Orleans 
during that time, for the reason that in a letter which he seems to have produced before 
the committee of the House of Representatives, addressed to Weber, dated November 
20, 1876, and contained in page 15 of his printed testimony as printed for the use of the 
Senate, he uses my name as if at that time he had had some communication with me or 
some knowledge of me in reference to the matter as to which he testified, for in that 
letter he says: 

“‘lam not satisfied, and have no more faith in Sherman, Matthews & Co. than I 
have in Pitt Kellogg. ’ 

‘ ‘ And in order to rebut the implication arising from his use of my name in that con¬ 
nection, I desire to say that at that time I had no knowledge of the man other than 
what I have just stated. I had never seen him; I had never had any communication 
with him, and had never made any communication intended for him, and knew nothing 
of any communication that he had with anybody else. 

“ Mr. Whyte. He swears he never met you until he met you in Cincinnati. 

“ The Witness. I believe that is the case. Now, the first time that I ever did see him, 
according to my memory, assisted by a memorandum, was the 23d day of March, 1877. 
I get that date not from my memory alone, for I would not be able to refer to the pre¬ 
cise date, but upon the envelope containing the paper known as the Nash agreement, the 
original of which is now in the hands of the committee of the House. I made a pencil 
memorandum of that day as being the day of its receipt, although I did not make it on 
the day when I received it. I did not make that memorandum until I received subse¬ 
quently a letter from Anderson of April 7, 1877, from New Orleans, in which was inclosed 
the other paper known as the Weber agreement. 

“ Mr. Davis, of Illinois. He puts the date he gave you that as the 22d. 

“ The Witness. I refer to that now because I do not wish to appear to contradict bini 
unnecessarily and where I am not wholly sure that I am accurate. 

“The Chairman. You fix it at the 23d. 

“ The Witness. The 23d is the memorandum in pencil on the back of this envelope, 
but having made it not at the time but subsequently to the time when I received the 
letter of April 7, I may have made an error in my then recollection of the day. 

“ Mr. Anderson, in his testimony, on page 26, undertakes to give the substance of what 
passed in our interview on that occasion, and I quote from it as follows. He says: 

“ ‘ I went into a general history of the election in Louisiana. I told him what part 
I had taken, of the manner in which the election in East Feliciana had been conducted 
and in the State; told him they had thrown out my parish on a forged protest; that they 
had made me promises which they had not fulfilled and had no intention of fulfilling; 
in fact, told him the whole story of the whole thing right through; went into all the 
details, with the exception that I omitted any mention of Mr. Sherman’s name,’ 


STANLEY MATTHEWS. 


675 


11 That statement is entirely false. He did not go into the ‘ general history of the 
election in Louisiana.’ He did not tell me ‘what part’ he ‘had taken; of the man¬ 
ner in which the election in East Feliciana had been conducted and in the State.’ He 
did not tell me ‘ they had thrown out ’ his ‘ parish on a forged protest. ’ He did not 
tell me ‘ that they had made promises which they had not fulfilled and had no inten¬ 
tion of fulfilling. ’ He did not tell me what he calls ‘ the whole story of the whole 
thing right through,’ or go into any of the details of the matters to which he refers. On 
the contrary, he introduced himself to me in my office, gave me his name, and said that 
he had been the supervisor of registration in East Feliciana Parish in the Presiden¬ 
tial election; that he was a young man who had been in Louisiana for some years, had 
been active and zealous in the Republican cause during all the period, had labored in 
season and out of season, by day and by night; had assisted not only in New Orleans but 
throughout in different parts of the State in organizing the Republican party; that he 
had rendered what he believed to be valuable, efficient, but so far as he described them 
entirely honest and honorable services in the promotion of the cause of his party; that 
he had done this at great sacrifice of time, of money, of health, and at times at great peril 
of his life from his political opponents; that it was a dangerous service, and so far as he 
was concerned had been an unrequited service; that, to be sure, he had at that time a 
subordinate position as a clerk in the custom-house at New Orleans, the amount of the 
salary of which he did not mention, but he spoke of it as being insufficient to meet the 
necessities of his family; that he had in addition now to his other misfortunes to have 
incurred the enmity and hostility of the leaders of the Republican party organization in 
New Orleans, mentioning the names particularly of Kellogg and Packard with others, 
and that altogether his life in New Orleans had become intolerable, although if he could 
get a better and improved condition of things there in respect to salary he would be will¬ 
ing to remain, but that he thought under the circumstances he was entitled to something 
better elsewhere. 

“He narrated this at considerable length and with great apparent earnestness and 
emotion, exhibiting great feeling and with the appearance of tears, so much so that I 
was, soon after his conversation commenced, very much enlisted in his interest, possibly 
the more so because he was appealing to me as against the men whom he said he had 
benefited there and to whom he naturally would have the right to look, the managers of 
his own political organization, and suggesting that the cause of their hostility to him 
was on account also of their hostility to the Republican national administration, to the 
President and his policy. I said to him that I sympathized with him, that I felt sorry 
for him, that I would be glad to serve him in any way that was proper, and if I could do 
so that I would endeavor to obtain for him some suitable employment in the Govern¬ 
ment, first a better place in New Orleans if it could be had, and, if not, then some other 
place, he suggesting that he would like to have some position abroad as consul on account 
of the health of his wife. 

“ In this matter I gave him no pledge; I brought neither myself nor any one else 
under any obligation further than the general expression of my good-will, my desire to 
serve him, and my intention to try to do so, and there was not in the whole course of 
the conversation the remotest hint that he had been engaged in any unlawful or dishon¬ 
orable service in behalf of the party, and that he expected me to help reward him for it, 
nor did he claim that anybody else had made any promises to him in that respect which 
he had a right to have fulfilled or which he had a right to call upon me to help him in 
the fulfillment of. It was, so far as the conversation had proceeded up to that time, the 
ordinary case of an application on behalf of a person who was in great need of employ¬ 
ment and who thought he was entitled to it as a matter of recognition for his general 
service in behalf of his party. 

‘ ‘ He appeared to be very gratefully affected by the interest which I seemed to mani¬ 
fest in him, and was profuse in his expressions of pleasure and gratitude that I had re¬ 
ceived him so differently from the treatment that he had received from those to whom 
he had a better right, as he thought, to look, and he had gotten up to leave with the 
satisfaction which he had derived from what I had said to him, when he put his hand in 
his-pbcket and took out a paper and said there was a paper which he thought under the 
circumstances I ought to have, and gave me the original paper which is called the Nash 
agreement. What is found on page 24 of the testimony is, so far as I remember, a cor¬ 
rect copy of it. 

“By Mr. Edmunds: 

“Q. What do you mean by ‘original paper’; do you mean genuine paper?— A. I 
mean merely the original of which this print is a copy, which I furnished. 

“By Mr. Davis: 

“Q. That paper is now in the hands of the Potter committee?— A. Yes, sir. I deliv¬ 
ered that paper, together with the other documents called the Weber agreement, into 


676 


SENATE ELECTION CASES. 


the hands of General Cox, to be produced before the committee of the House on the ex¬ 
amination of Mr. Anderson, together with some original letters which I had from Mr. 
Anderson, all of which he has produced and which are referred to in the printed testi¬ 
mony. 

“ By Mr. EDMUNDS: 

“ Q. In that connection, if I do not interfere with your statement, I should like to 
ask whether you delivered to General Cox, a member of the House committee, the iden¬ 
tical papers that came to you from Anderson?—A. Yes, sir; and I intended to state in 
reference to that, because Mr. Anderson in his testimony denounces the Weber agree¬ 
ment produced by General Cox as a counterfeit, that it is the precise and identical and 
only paper of the kind delivered to me by him and conveyed through the mail from New 
Orleans in a letter dated April 7, 1877. The Nash paper I read when he handed it to 
me. I read it casually and hastily, but with sufficient attention to observe its character, 
and I asked what it meant. He thereupon stated to me that it was not what it appeared 
to be; that he had no design in it to obtain the position of naval officer at New Orleans; 
that it was perfectly understood that that was so; that he had no idea that Mr. Nash could 
do it, or that it could be clone even if Mr. Nash was willing to do it, and that he had no 
evidence to suppress showing that the parish of East Feliciana was fairly carried by the 
Democratic party at the election held in November, 1876, thereby electing the entire 
State ticket and Congressmen, and that there was no object on his part or design on his 
part or on Nash’s part to suppress any evidence. And on my asking him what it was 
meant for then, he said it was executed simply for the purpose that he might have a hold 
on Mr. Nash. There may have been something said in that connection about other and 
similar papers. If there was, the papers were not described, and I have no recollection 
of what was said; nor, indeed, have I any recollection that anything was said as to the 
existence of any other similar paper. My belief is that there was nothing said, because 
(and that is the reason of my belief) when I received the subsequent letter, dated April 
7, containing the Weber agreement, it was a surprise to me as a thing that I had not 
expected to get. 

“ Q. Is that in print ?—A. The letter itself is in the printed testimony at page 100. 

“ Q. That is the letter to which you refer?—A. Yes, sir. In the interval before the 
receipt of that letter I had written the letters contained on page 27 or on different pages 
of the same leaf. 

“ Q. Have you now stated all that took place between you and Anderson on the 22d or 
23d of March?—A. Yes, sir, further than to say to him at that time that I would give 
him a letter of introduction to General Harlan when I ascertained that he had arrived 
in New Orleans, which I did subsequently on the 29th of March, as appears by the let¬ 
ter on page 27. 

“I had received a letter after Anderson’s leaving me at Cincinnati and going to New 
Orleans, in which he had inquired what he should say to Nash as to where the Nash 
agreement was, and in my note to him giving him a note of introduction I told him to 
say to Nash, if inquired of, that I had the agreement, and I desired Nash should know it. 

“ By the Chairman: 

“ Q. You are now speaking of the letter dated March 27, which is found on page 104 
of the printed document?—A. Yes, sir. In that he asks me in reference to Nash: ‘Shall 
I inform him that it is in your possession ?’ I replied to him on the 29th: ‘ You should 
say to Nash, if inquired of, that I have the agreement.’ 

“ The next important step in the matter was the receipt by me of the letter now re¬ 
ferred to of April 7, 1877, in which he informed me of what he claimed to be a combina¬ 
tion on the part of Packard and others to accomplish some purpose in respect of the title 
of the President, outlining their hostility to him, stating that they were trying to induce 
him to go with them, all of which appears by the letter itself. He refers in that letter 
to what he calls ‘ the Pitkin et al. agreement, ’ as to which I know nothing more than is 
contained in that statement, and had never heard of it before. 

“By Mr. Edmunds: 

“Q. Have you ever heard it since until now?—A. Nor since. The Weber agreement 
is the one of which I have already spoken that he refers to, and which he speaks of as 
‘the last piece of documentary evidence in existence.’ And then adds: ‘ I will now have 
to trust entirely to you, as the ill-feeling borne me by the Republican leaders has been 
intensified by my refusal to aid them in their infamous scheme. ’ The paper referred to 
as the Weber agreement is the one contained on page 12 of the printed testimony. 

“ When I received that paper and read it I made the memorandum in pencil to which 
I referred on the back of the envelope which had been delivered to me in our conversa¬ 
tion, which contained the Nash agreement. At the time I received this pape r, and from 
that time until after Mr. Anderson commen ced his testimony before the House committee, 


STANLEY MATTHEWS. 


677 


T supposed it to be a genuine document so far as the signatures were concerned, and that, 
it point of fact, it had been signed and acknowledged and sworn to both by Anderson 
and Weber, and I had no suspicion to the contrary until- 

“By the Chairman: 

k Q. You supposed, when you received it, that it was a genuine document?—A. That 
it was a genuine document; that is, that the signatures of Weber and Anderson wer6 
both in their own handwriting and placed there by themselves. 

“ By Mr. Edmunds: 

“ Q. Bo you know in that connection at what time Weber died and of what disease?— 
A. I do not. I only know by report. 

“Q. Of course, that is what I meant.—A. He was killed, as it was reported, subse¬ 
quently to this. 

“ Q. Subsequently to the date of your receipt of the paper?—A. After that; I do not 
know precisely when. 

“By Mr. Whyte: 

“Q. Subsequent to the date of the paper?—A. Yes; whether he was dead when I 
received the paper or not I do not remember. I do not know what date I have heard 
ascribed as the date of his death. 

“After Anderson had commenced his testimony before the House committee, and my 
attention was attracted by it, and it was published in the newspapers, my suspicions were 
excited in regard to this paper and its signatures, and I compared them with other sig¬ 
natures said to be genuine ones of Weber, and it was apparent to any one from that 
inspection that the handwritings were not written by the same person, and I think a 
suggestion of that kind leaked out in the newspapers at the time; and it was after that 
that the paper, having been obtained from me by General Cox, was produced before the 
committee of the House and exhibited to Mr. Anderson, when he denied that it was the 
same paper which he had delivered to me. I now repeat and reiterate that if that paper 
which General Cox produced before the House committee as obtained from me was not 
the same paper which Mr. Anderson sent to me by mail, then 1 never received any paper 
from him of that kind, because the paper was the identical paper and the only paper 
which I did receive from him, without alteration in any respect. 

‘‘ By the Chairman: > 

‘ 1 Q. Under cover of the 7th of April ?—A. Under cover of the 7th of April, and accom¬ 
panied by the letter on page 100 of this testimony. It is important to me, that my own 
conduct should be rightly estimated by the committee and the Senate, that I should state 
what my impressions were in regard to the character and objects of the two papers. 

‘ * The impressions produced upon my mind by the consideration of these papers, and 
the inferences that I drew from them, as near as I can analyze what the state of my mind 
was at the time and during the whole progress of the matter, were about these: In the 
first place, I supposed from the nature of the papers, as well as from the explanation 
which Mr. Anderson had attempted of the Nash agreement, that the object of their exe¬ 
cution and preservation up to that time when they were delivered into my hands was, to 
use a common and strong phrase, lor purposes of black-mail; that himself and Weber had 
expected to make use of them in some improper way, either with Republicans or Demo¬ 
crats, whichever he might find to be most available for such a purpose, if he could find 
any, as a lever with which to promote some personal schemes and benefits to themselves. 
I understood from the nature of the conversation between myself and Mr. Anderson in my 
office, the circumstances and manner of his delivery at that time of the Nash agreement, 
and his sending to me by the letter referred to, and from the contents of that letter itself, 
the Weber agreement, that his object in delivering those papers to me was to deprive him¬ 
self of the opportunity of making use of them according to their original intention, and to 
convince me that the purpose for which they were originally executed had been finally 
abandoned. There were several expressions made use of at the time of the delivery of the 
Nash agreement which suggested that idea and were intended to convey to my mind the 
belief that the paper was delivered to me for any purpose that I might see fit to use it for, 
to be entirely at my disposal, and that the two papers when they both came into my hands 
were the only copies that there were, that they were originals, and that there were no 
copies. In other words, that he was surrendering to me all the instruments by which he 
had ever intended any mischief in order that no mischief might be done by them, that I 
might be entirely satisfied of it, and that he had done this because he had found that I was 
ready and willing to help him in his condition by obtaining for him recognition and em¬ 
ployment. 

“ I believe that the papers were given to me in good faith for that purpose, in order 
that no mischief might be done, that they might not be employed for any evil purpose. 



678 


SENATE ELECTION CASES. 


A.dded to this, I had the impression and belief at that time, not that the papers were 
evidence of any fraud or wrong committed in the election, as to which I did not believe 
that any did exist, but that their publication would be regarded by many as strong, if 
not conclusive, evidence of such, and could have no useful purpose, but, on the contrary, 
would only tend to promote what I regarded as a mischievous and unfounded public 
scandal. Therefore I considered it a matter of some importance to what I believed to be 
public interests that the papers should be in the custody of a person who would not em¬ 
ploy them for any such purpose. 

“With those impressions on my mind, if I have been able to make myself clearly un¬ 
derstood by the “Committee, I continued to carry out the intention which I had expressed 
to Mr. Anderson in the interview which 1 had with him when I first saw him before I had 
any knowledge of the existence of either paper, and that was to help him to get a suitable 
public employment, and the letters which are contained in his testimony which passed 
between us were written in pursuance of that intention and for the purpose of accomplish¬ 
ing 'hat result; and in respect to those letters, they are, so tar as I know, all correct, with 
the exception of one where he has undertaken to furnish the original of a letter addressed 
to me, and where I have furnished the original as received by me, and they do not entirely 
correspond, although the difference is not perhaps substantial, but I will point it out. It 
is the letter of June 19, 1877, the correct and original of which furnished by me is con¬ 
tained on page 106, marked A L, but the copy of which produced by Mr. Anderson to the 
committee in his testimony is on page 34, and the committee, by comparing the two, will 
observe the differences. 

‘ ‘ Q. The letter that you received from Anderson, dated June 19, 1877, is found on page 
106?—A. Yes, sir. 

‘‘Q. And the letter which he describes as having sent you of that date is on page 34 ?— 
A. Yes, sir. 

“By Mr. Edmunds: 

‘ ‘ Q. And you mean to say you did not receive any two letters such as those ?—A. I 
did not. My explanation in my own mind of the difference is that the letter which he 
produced on page 34 is the draught of a letter which he intended to send me, and in copy¬ 
ing it he changed it so as to make the difference. The one he in fact sent is contained 
on page 106. 

‘ ‘ Q. And that is the only one you received ?—A. That is the only one of that date 
which I received. It would be impossible for me to follow up the whole course of the 
correspondence and all the matters in connection with it in any connected narrative now 
from recollection. Ti e matter, however, went on as indicated by the correspondence 
until I received a letter or telegram from General T. C. H. Smith, who was then the ap¬ 
pointment clerk in the Treasury Department. That letter is here. 

“By Mr. Whyte: 

“ Q. Is not that at the bottom of page 106?—A. I think not, but it may be, perhaps. 
I am not sure but I received either a letter or a telegram, and my answer, if this be the 
letter, is not here, but is contained in General Smith’s testimony before the House com¬ 
mittee. I remember the substance of my answer, which I think was by telegraph, and 
that was that neither I nor any other person was under any obligation to Mr. Anderson, 
and that if he was not willing to accept such a position as Mr. Smith was willing to offer 
and thought a suitable place for him, to drop him and the whole business. 

“By the Chairman: 

“Q. Have you a copy of that?—A. I can get it from the'House committee, but prob¬ 
ably I had better get General Smith’s whole testimony. 

“By Mr. Edmunds: 

‘‘Q. What are you now referring to? Is it your letter mentioned in General Smith’s 
note of June 25, 1877, ‘AM,’ on page 106 at the bottom?—A. No; I think not. I 
think the one I refer to must have been in answer to this probably, but that will appear 
when it is produced. 

‘ ‘ Subsequently to that I happened to meet Mr. Anderson near Washington. He refers 
himself to the interview. It was on the train going from here to Baltimore. I had not 
seen him while we were both remaining in the city. 

“By Mr. Hoar: 

“Q. When was that?—A. I do not remember the date, but it was subsequent to this 
correspondence with General Smith, and must have been nearly about that time. It 
must have been just prior to his writing this letter of June 19. 

“Q. Where were you then ?—A. I was just leaving Washington. 

“Q. At the time of the letters of June 19th and 22d ?—A. When I got that letter I 


STANLEY MATTHEWS. 


679 


was in Cincinnati. Just prior to his writing that letter, and at the date of the letter, I was 
in Washington, and I was leaving here and was on the cars when I saw Mr. Anderson. 
He was on the same train, and told me he was going over to Baltimore to enter upon the 
duties of some position in the custom-house there that General Smith had given him, and 
he was very much gratified that he had received it, and was very profuse in his expres¬ 
sions of thankfulness to me for having procured it for him, and I supposed that he was 
satisfied until that letter came. Subsequent to that I understood that he had obtained 
employment on a newspaper, the North American, at Philadelphia, and that an arrange¬ 
ment had been made between himself and General Smith by which his brother was to 
have a place, and did have a place, perhaps the same place that he had vacated in the 
custom-house at Baltimore, and he expressed himself as very much satisfied with that 
and pleased with the arrangement, and the matter I considered as having entirely passed 
beyond any connection of mine with it. 

‘ ‘ After that I saw him in Washington once or twice; I do not remember the occasions. 
He called at my house on more than one occasion, but it had no reference at that time 
to himself as to any position. He had, as he told me, no further desire for any office 
for himself; that he was well situated in the newspaper, and it was greatly better lor 
him, and he did not want anything further, and was satisfied with what had been done 
so far as I was concerned. But he commenced talking then to me about the appoint¬ 
ments to be made by the President in reference to New Orleans, the custom-house ap¬ 
pointments, the appointment of marshal, but particularly the custom-house appoint¬ 
ments; and I was called upon at or about the same time by Dr. Darrall, who had then 
just been unseated by the House of Representatives from the seat which he claimed from 
Louisiana, who also began to talk about the custom-house in New Orleans, and about 
being an applicant lor it himself, and I was made aware that it was Mr. Anderson’s de¬ 
sire that Dr. Darrall should be appointed, and that it was their joint desire that I should 
take some steps to secure Dr. Darrall’s appointment. 

“1 said most distinctly at the time and at all times to these gentlemen, either sepa¬ 
rately or apart, wherever they happened to talk to me on the subject, that I neither 
could nor would take any part in the matter whatever; that it was a matter in which I 
had no right to interfere, and in which I had no desire to interfere; that I had been ac¬ 
cused by the friends of Governor Packard of standing in the way as the only obstacle to 
his appointment as collector at New Orleans, and that so far from that I had expressly 
said that it was none of my business, and in order to satisfy the friends of Governor 
Packard, and at their desire, I Lad taken what seemed to me to be the unnecessary pains 
of going to the President to say that if he thought the public interest would be best 
served by the appointment of Governor Packard as collector of customs, I hoped that no 
personal consideration would interfere with the execution of his intentions in that re¬ 
spect, and certainly, so far as I was concerned, that I had no personal reasons for opposing 
his nomination or confirmation, and that consequently, being in that attitude and having 
at that time rather made up my mind that perhaps Governor Packard’s nomination would 
be a good thing to do, I declined to have anything further to do with the matter, and in 
that state, that condition of things, I happened one day—I do not remember the hour of 
the day—to meet Mr. Anderson in one of the public places of this Capitol, between the 
Senate Chamber and the entrance in the hall, evidently in a state of intoxication, the first 
time I had ever seen him in such a condition, and with a very abrupt and insolent ad¬ 
dress to me, wanted to know what the Administration were going to do about the ap¬ 
pointment of a collector of customs at New Orleans, and said he would give them just 
one week in which to make up their minds about the matter. I immediately, as soon 
as he had finished his notice, said to him that he was drunk and insulting, and that I 
should have no further communication with him, and forbade him to approach me or 
communicate with me in any way whatever. He afterwards called at my house, as I 
was informed by a servant, with his card, but I declined to see him, and have never seen 
him since, except publicly and in this room; and all statements made by him or by Dr. 
Darrall in reference to my having made any promises to use my influence or otherwise 
take any steps to influence the nomination of himself or anybody else as collector of 
customs at New Orleans are pure fabrications, without any foundation in truth; and so 
far as I now recall anything I have said, all that occurs to me as important in reference 
to this matter, with perhaps this exception, that I ought to say that on no occasion did 
Mr. Anderson ever, either expressly or by any implication, suggest that he had any 
promise from Mr. Sherman, or that he knew of any, offering him assistance in the way 
of public office or otherwise for anything that he did or omitted to do in reference to the 
election in Louisiana. I never heard of the so-called Sherman letter until it became 
matter of public notoriety through the newspaper press in connection with this matter; 
and so far as I am now advised, I submit the matter for further examination to the com¬ 
mittee. 


680 


SENATE ELECTION CASES. 


“ By Mr. Edmunds: 

“ Q. In any of these interviews with Mr. Anderson, did he ever say or in any manner 
intimate or hint that he had been a party to, or knew of, any misdoings in respect of 
misrepresenting the true result of the election down there?—A. Never on any occasion 
in any way whatever. On the contrary, all that was said or suggested necessarily car¬ 
ried just the contrary meaning to my mind. 

“ Q. I understand you to mean, then, in the statement which you have made, that 
whatever interest you took in the affair, or whatever you did or said about Anderson’s 
getting a place or anybody else getting a place, was not under any impression that you 
were helping him on account of any contrivance or misdeed that he had done or knew 
of, but on account of his having made you believe that he had done the honest and reg¬ 
ular work that members of all political parties who are honest feel that they have a right 
to do ?—A. That is what I mean, and that it was in his case a case of peculiar hard¬ 
ship, on the ground of which he made the appeal to me especially, because the persons 
to whom he would naturally look otherwise, by reason of their hostility to the Admin¬ 
istration, as he claimed, had also become hostile to him. 

“ By the Chaikman: 

“ Q. In handing you these papers purporting to be agreements, did he explain to yon 
definitely that there had been a purpose at one time, either in his mind or the mind of 
Mr. Nash or Mr. Weber, to use these papers improperly ?—A. The substance of what 
he said to me in delivering to me the Nash agreement was this: After rising to his feet 
to leave, after the substance of the conversation as I have related it had closed and I 
had expressed an intention to help him as far as I could, he put his hand in his pocket 
and took out the envelope containing the Nash agreement and said: ‘ Here is a paper 
that I think you ought to have: I give it to you without any conditions, to do with as 
you see proper. ’ I then opened the paper, read it through, observed its general charac¬ 
ter, and asked him what it meant, and he then proceeded with a statement, which I have 
already undertaken to give, that it did not mean what it appeared to mean; that there 
was no evidence to supress; that there was no fraud as to which there was any evidence; 
that he had no expectation of getting any such office, but that he had had the paper given 
in order (as I remember) to have a hold on him. That was all the intimation of any ill- 
legal purpose. And the other paper came to me inclosed with the letter of April 7, which 
contained all the information I had in relation to it. ” 

The hour of the meeting of the Senate having arrived, the committee adjourned to 
meet again on the 11th February. On that day— 

“The committee met pursuant to adjournment, all the members present. 

“Hon. Stanley Matthews’s examination continued. 

“The Witness. Mr. Chairman and gentlemen, I think it important that I should 
make more distinct and clear one matter. In my first interview with Mr. Anderson 
when he handed to me the Nash agreement, as I have already stated, he did not state 
what purpose that paper had been executed for, further than for the purpose as he stated 
of obtaining some hold on Nash; and took pains to explain the contents of the paper as 
not meaning what they would appear to mean; that in point of fact there was no evidence 
of any fraud that he had possession of, and none that he had agreed to suppress, and no 
expectation of relying as significant upon any promise made in the paper in reference to 
the office spoken of; and my distinct understanding, from all the circumstances, from 
his manner, from his conversation, and from the period of time during the conversation 
when this occurred, was that he delivered that paper to me in token of his surrender of 
the paper and of all the purposes for which the paper was originally intended to be used 
or for which it might be used; and what emphasizes that impression and conviction on 
my mind is that there had been no previous conversation between us in respect to the 
paper or any of the things to which the paper related, nothing to call it out, no expec¬ 
tation on my part that I should obtain it, no hint from him that there was any such paper 
until he produced it; and in doing so he said it was a paper which he thought I ought 
to have, as I supposed in return for the good-will which I had expressed toward him, 
the interest which I had manifested in his case, stating at the time that he delivered it 
to me to be treated in whatever way I chose. 

“ That impression was so strong that I supposed at the time that the object in deliv¬ 
ering the paper to me, as he afterward also did with the subsequent paper called the 
Weber agreement, was for the purpose that I might destroy them. I did not do so 
simply because I anticipated a possibility that on the whole it would be better that I 
should not, so that in case of the happening of any future contingency that I did not 
then contemplate it would be essential to my own protection in the matter that I should 
be able to produce the very papers which I had received; but I received them, the first 
one at that time and the other one subsequently , as evidence, by the act of his deliver¬ 
ing them to me, that he desired to be understood as having abandoned whatever design 
he may have originally entertained of using them in any way whatever. 


STANLEY MATTHEWS. 


681 


“By Mr. Edmunds: 

“ Q. If I understood you the other day, you said in that connection that he accom¬ 
panied that delivery with the statement that there was no such fact in existence to his 
knowledge as the paper appeared to import?—A. He did distinctly, and I understand 
him to reiterate that in the testimony whi di he gave before the House committee, and 
that impression was corroborated and strengthened by the contents of the letter of the 
7th of April, in which he referred to the alleged machinations as against the President 
by Mr. Packard and his friends, in which they sought to use him, and from the expres¬ 
sions contained in that letter I inferred that the whole matter was false; that is, that there 
was no foundation in truth or in fact for the things intended to be brought out by the use 
of him or of any of the instruments of evidence which he was supposed to have, where he 
says particularly in reference to one part of their plans, ‘ of course they commit perjury, 
but that is a small matter here ’; and that impression was not affected by the other ex¬ 
pression made use of in the same letter, where he speaks of this Weber agreement as being 
‘ the last piece of documentary evidence in existence. ’ I of course understood it had no 
probative force of its own, except supposing it to have been signed by the two parties as a 
confession that would be admissible as against them, but not containing any evidence in 
itself as against others of the facts that were recited in it. 

“In the note which I gave him of introduction to General Harlan on the 29th of 
March, I stated that the note would be presented ‘by Mr. J. E. Anderson, who may de¬ 
sire to communicate with you confidentially,’ and in my note to him, which was on the 
same sheet, ‘ you can talk to him as fully as to me. ’ So far as I now remember what 
was in my own mind at that time, my object in those expressions was simply to have 
Mr. Anderson converse with General Harlan in respect to himself and his own case and 
his own desires and his relations to this whole matter just exactly as he had done tome, 
so that General Harlan, being on the ground, might better judge as to the propriety of 
undertaking to assist in forwarding any application to be made by him for any promo¬ 
tion, which was the first thing he spoke of as desirable, in the custom-house office at 
New Orleans. There was no other matter that I remember of which I expected him to 
speak confidentially about, except the matters which I have testified to here, and which 
I remember as a part of the conversation. 

‘ ‘ There is one other matter which I desire to make a further explanation about. On 
the 1st of June it appears that he telegraphed me from Washington in a very peremp¬ 
tory style about arranging this affair ‘ or you can all face the music.” 

“ By Mr. Whyte: 

“ Q. That dispatch on page 105 is dated May 1, but I presume that is a mistake?—A. 
I am not able now to remember what is the correct date. I remember, however, the 
fact of there being a discrepancy between the two. 

“ Q. It must be June 1, from the letters?—A. I think so. On page 32 it is June. He 
apologized for that by a letter written the next day, which will probably fix the date ot 
that. That letter is on page 106. He writes a letter on the 2d of June in which he 
apologizes for that dispatch, but subsequently to that, on the 19th of June, after he had 
experienced a disappointment in the character of the position that was given him in the 
Baltimore custom-house, he writes the letter of that date set out on page 106, in which 
he says he proposes ‘to wait here,’ that is, at Washington, ‘ until Saturday, and if’ his 
case was not settled by that day, to ‘ take such steps as the occasion might require. ’ It 
was subsequent to that, I believe, though I have it not here, that the correspondence 
between General Smith and myself took place, in which I stated to General Smith, the 
appointment clerk of the Treasury Department, that neither I nor any one else was under 
any obligation to Mr. Anderson, and if he did not see fit to accept such position as Mr. 
Smith thought was suitable to him, to drop him. 

‘ ‘ What I desire more distinctly to have understood is the reasons that actuated me in 
continuing the correspondence with him and continuing to manifest my interest in him 
after this conduct on his part toward myself, which in respect to that dispatch was in¬ 
sulting. My first reason was my anxiety, considering his disappointment which he had 
expressed in reference to the treatment he had received from others, and his disappoint¬ 
ment in not succeeding through me in getting what he thought he ought to have, to not 
give him any excuse in his own mind for believing that I had not acted in entire good 
faith in carrying out the original expressions of my desire communicated to him in my 
first conversation to do something for him. I had said that to him under the circum¬ 
stances which I have stated. I excused his own conduct toward myself as perhaps nat¬ 
ural to a man who had an intense desire to accomplish his object, who perhaps was very 
needy, as I supposed he was, and who might suppose that I, like others whom he had 
charged, was only giving him words of promise without seeking to do anything to make 
them good, and I was anxious and sensitive that he should have no excuse to charge me 
with any bad faith. 


SENATE ELECTION CASES 


682 

“My other reason was my desire that the papers which were in my custody under the 
circumstances which I have stated, meaning by ‘the papers’ the Nash agreement and 
the Anderson-Weber agreement, should not be made public. I confess that I thought 
it was best that they should not be. I saw no reason for making them public in refer¬ 
ence to any public interest involved. I did not believe it would do any good. I could 
not imagine any good that they would subserve, with my opinion as to their character, 
and I did believe that they might be made the instruments of mischief and of harm by 
propagating and to some extent confirming in the popular mind a belief in what I be¬ 
lieved to be a false and injurious scandal in reference to the whole matter to which they 
related, and the two considerations together induced me to tolerate with him up to the 
point which I have described the conduct which the correspondence manifests as dis¬ 
played by him. 

‘ ‘ I believe these are the matters to which alone I care now to make any additions. 

“The committee-room was then cleared for deliberation, after which the doors were 
reopened, and on Mr. Matthews appearing, the following resolution, adopted by the com¬ 
mittee during its deliberation, was read to him: 

“ ‘j Resolved, That Mr. Matthews may and ought to be examined in the same manner and 
to the same extent as if Anderson had testified before this committee to the same matters 
stated in his testimony before the House committee. ’ 

“By Mr. Whyte: 

“ Q. Senator Matthews, in pursuance of the resolution which has been read to you, I 
should like to ask you whether at the meeting at New Orleans, which you attended in 
pursuance of the request of President Grant, anything was said about protests in regard 
to the election in East and West Feliciana?—A. Do you mean the interview that I re¬ 
ferred to as having been held at the custom-house with General Anderson and Governor 
Wells? 

“Q. That is the interview.—A. There was no conversation on that subject at that 
time nor at any time between myself and those two gentlemen, members of the return¬ 
ing board, or between them and others in my presence at any time. 

“ Q. I do not ask as between them and yourself, but between yourself and any other 
persons ?—A. Nor between myself and any other persons. 

‘ ‘ Q. Did you know anything about the failure to make protests by these supervisors 
in regard to the returns from their parishes at the time' the returns were regularly made? 

‘ ‘ Mr. Edmunds. I wish to suggest that that inquiry appears to imply that there was 
a failure to file protests, about which I know nothing and I believe the committee know 
nothing. 

‘ ‘ The Chairman. Mr. Whyte will modify the question, I suppose. 

‘ ‘ Mr. W hyte. The word ‘ failure ’ probably I ought not to use. I supposed everybody 
remembered the fact that the protests were made in New Orleans, and not made in the 
parishes. 

“ Mr. Edmunds. I do not remember any such fact. I do not know anything about it. 

‘ ‘ Mr. Whyte. The protests are in this testimony and show that they were made in 
New Orleans. They were part of the document which Mr. Sherman presented to the 
Senate. 

“Mr. Edmunds. I only make the suggestion because I know no such fact, know noth¬ 
ing about it. I only wanted to avoid the committee being committed to an implication 
which the question seemed to make. It may be a correct implication or it may not. 

“Mr. Whyte. I would only say that the protest to which I refer in regard to East 
Feliciana is dated at New Orleans, and sworn to before Judge Campbell on the 10th of 
November, 1876, and appears in Senate Miscellaneous Document No. 2, Forty-fourth 
Congress, second session, page 223. 

“ The Witness. It is also in this testimony of Anderson, on pages 5 and 6. 

“Mr. Whyte. It is. 

“The Chairman. The House has sent to us the entire testimony of Anderson; in 
other words, has sent us testimony which we did not ask for, and of course it is all 
printed in this volume. It may not be material in this connection, but it may become 
so hereafter, and therefore I call attention to the fact. 

“The Witness. May I go on now? 

“ The Chairman. Yes, sir. 

“ The question of Mr. Whyte was read to the witness, as follows: 

‘ ‘ ‘ Do you know anything about the failure to make protests by these supervisors in 
regard to the returns from their parishes at the time the returns were regularly made?’ 

A. During the few days I was in New Orleans, between the 13th and 19th of Novem¬ 
ber, 1876, I did hear as a matter of conversation in reference to one or the other, if not 
both of the parishes of East and West Feliciana, that it was reported that the protests 
required by law to be made by the officer in charge of the election, called, I believe, the 


STANLEY MATTHEWS. 


683 


supervisor of registration, was not made on the day of the election nor at the place of the 
election, hut was supplied subsequently, but at what time and place I do not remember 
to have heard; and I understood that the question would arise in reference to the valid¬ 
ity of those protests as affecting the returns of the election at those places in regard to 
the jurisdiction of the returning board to go into the question of those facts, which, un¬ 
der the law, were thought to give them power to invalidate the election itself—such as 
intimidation, force, fear, riots, &c. I say I heard it as a matter of conversation, but 
from whom, and where, I cannot state positively, except, as heretofore stated, I did not 
hear anything said on that subject in the interview at which either of the members of 
the returning board was present. 

‘ ‘ Mr. Edmunds. Mr. Chairman, I wish to submit for the consideration of the commit¬ 
tee, as a matter of fairness towards every member of it, that the answer of this witness 
has no tendency to establish the fact of the protests not having been made regularly and 
according to the laws of Louisiana, and that it can only be received so far as it may affect 
his personal conduct in relation to the transaction. I do not ask the committee to decide 
the question now; but, in order that it should not be misunderstood hereafter, I make 
this suggestion. 

“The Chairman. The suggestion will go in the record. 

‘ ‘ Q. (By Mr. Whyte. ) Senator Matthews, Anderson hasstated thatbetold you in con¬ 
versation, in March, 1877, that his parish of East Feliciana had been ‘thrown out on a 
forged protest.’ Did he make any such statement to you as that?—A. He did not tell 
me anything of the kind. 

“Q. Did he then tell you of any promises made to him by anybody in Louisiana in 
regard to any service that he had rendered in his capacity as a superviser of registration, 
and that those promises had not been kept?—A. He did not. 

“ Q. Did he say more to you than to appeal to your generosity to get him some position 
on account of his services to the Republican party, or did he explain to you that he had 
rendered peculiar services which ought to be rewarded?—A. His appeal to me was to my 
generosity and sense of justice to assist him in getting some employment in the Govern¬ 
ment, largely if not mainly on account of services which he claimed to have rendered to 
the Republican cause in Louisiana, the nature of which He related quite at length, giv¬ 
ing me instances of his assisting in the organization of the party in different parts of the 
State, in looking to the interests of the party, and mentioned that these services were 
peculiar in the sense that they had been efficient, and that they had been dangerous, for 
he referred to the fact that they had been rendered at great sacrifice of time and of what 
means he had, with the exposure of his person not only to ill-health but to peril of life 
from his political adversaries; but there was not in the whole of this account the most 
distant allusion that was not, according to his description of it, entirely honorable and 
such as an honest man might render if he felt the degree of interest which he claimed to 
have done in his party and its principles and its cause. 

“ Q. Did he explain to you after that the nature of the Nash-Anderson agreement, which 
you say he delivered to you, in that conversation?—A. Yes, in the way which I have 
already stated. 

“Q. Then did he tell you of the Weber-Anderson agreement in that same conversa¬ 
tion ?—A. My recollection is that he did not. 

“ Q. Did you tell him to go to New Orleans and wait for the commission known as the 
MacVeagh commission, which was contemplated at that time?—A. I understood him to 
say that he was on his way to New Orleans, or that he w r as going to New Orleans, and I stated 
to him that the first opportunity I should have to endeavor to do for him what he seemed 
to wish at that time would be when the commission arrived in New Orleans; that being 
personally acquainted with General Harlan, and as he desired an effort to be made to 
improve his condition in the custom-house, I would give him a letter of introduction to 
him when I heard of his arrival in New Orleans. 

“Q. Did he speak of any penitence in regard to the exaction of such an agreement 
from Nash as is disclosed by this paper?—A. That I inferred from the apologies which 
he made in reference to it in having me understand that it never was intended to mean 
what it appeared to mean on its face. 

“Q. Then how do you account for the language in his letter of March 27, to be found 
on page 104: 

“ ‘Nash will be here this week, and will demand possession of that agreement, after 
offering me a (possibly) clerkship. Of course I shall decline. Shall I inform him that 
it is in your possession ? ’ 

“What was the meaning of that?—A. I have no means of answering that. There was 
no statement made by Mr. Anderson to me of any understanding between him and Mr. 
Nash in respect to the possession of the agreement. The only explanations he made in 
regard to its nature were those which I have already given, and I cannot of course say 
what he meant by this. In reply to his question as to whether he should inform Nash 


684 


SENATE ELECTION CASES. 


that it was in my possession, I answered him that I desired him to inform Mr. Nash of 
that fact in my letter of introduction of March 29, in which I say, ‘ You should say to 
Nash, if inquired of, that I have the agreement, ’ as I desired that Mr. Nash should know 
that fact. 

“Q. Why did you wish Mr. Nash to know that?—A. In order that Mr. Nash might 
he relieved in his own mind from any such coercion as might be possibly implied from 
his knowledge of the existence of the paper and his ignorance of its whereabouts. In 
other words, to relieve him from that which Mr. Anderson described as the object of 
taking it—that is, Anderson’s hold upon him. 

‘ ‘ Q. What had Mr. Anderson to say to General Harlan confidentially, which is the 
language I think you use in your letter?—A. I say in my letter of March 29, introduc¬ 
ing Mr. Anderson to General Harlan: ‘This will be presented to you by Mr. J. E. An¬ 
derson, who may desire to communicate with you confidentially. ’ What I referred to 
was the same matters which he had related to me as the foundation for his own claims 
to my good-will, and particularly that portion which consisted in the description of the 
hostility which he said he had incurred from the leaders of the Republican organization 
in New Orleans, described as Packard, Kellogg, and others. 

‘ ‘ Q. Mr. Darrall says in his letter that he had talked with you about the Sherman 
letter; but I think you said you knew nothing about the Sherman letter ?—A. Nothing 
in the world. 

“Q. In his letter of April 7 Anderson says: ‘Inclosed find Weber agreement. This is 
the last piece of documentary evidence in existence. ’ I understood you to say that you 
knew nothing of that agreement prior to this letter ?—A. I did not, nor of the Pitkin 
agreement spoken of in the preceding sentence. 

“Q. On page 111 of the House testimony! find this indorsement apparently on an ap¬ 
plication of Anderson to be appointed under the State Department as consul: 

‘ ‘ ‘ For important reasons I specially request that this request be complied with. ’ 

‘ ‘ That is the request that he may be appointed to a foreign consulate, and then 
below it: 

“ ‘ Executive Mansion. Application for appointment United States consul at Callao, 
Peru. Senator Matthews requests that this appointment be made for important rea¬ 
sons. ’ 

“What ‘important reasons’ were there that a man like Anderson should be appointed 
to a consulate? 

“Mr. Hoab. On what page is that? 

“Mr. Whyte. I do not see it in the little volume which you have printed here; but 
it appears in the volume printed by the House. 

• ‘ The Chaibman. Then the House have not sent it to us. 

“Mr. Whyte. The House have sent all of Anderson’s testimony, but have not sent 
you these letters and papers. 

“ The Witness (after examining the document). The only reasons I had for wishing 
it were those that I have already explained as operating on my mind in furthering his 
wishes in respect to an appointment. 

“Q. (By Mr. Whyte.) You subsequently recommended him, did you not, to the col¬ 
lector at New Orleans for an appointment as deputy collector?—A. I did. 

“Q. And he did not succeed?—A. He did not. 

“ Q. On his way back from New Orleans to Washington he alleges that he stopped to see 
you at Cincinnati in May?—A. I remember Mr. Anderson being in my office subsequently 
to the first interview; but at what time, either in point of time as to the month or as 
to the day of the month, or at what period in the history of the whole matter, I do not 
now remember. 

“ Q. Anderson states that in that interview you remarked to him— 

“ * You go right back in the next train; I have just to-day had a letter from the Presi¬ 
dent in regard to your case, and I have written him such a letter as will secure your 
appointment to some position. ’ 

“Is there any truth in that statement?—A. There is not. 

“ Q. After he reached Washington he alleges he sent you the dispatch of June 1, con¬ 
taining these words: 

“ ‘The President claims to have received no letters. I want no more correspondence 
and no more nonsense. Come here and settle this affair, or you can all face the music. 
Care nothing about documents in your possession. Answer immediately. ’ 

“Did you receive that dispatch?—A. The telegram as set out on page 105 differs from 
the telegram as set out on page 32 in this printed testimony, but not substantially. The 
words ‘answer immediately’ occur in the copy on page 105; the words ‘telegraph meat 
once’ on page 32. The copy contained on page 105 is the one I received, and is the one 
furnished by me to General Cox, who produced it before the House committee. 

‘ ‘ Q. But the date I think is wrong ?—A. The date must be wrong. It is dated ‘ May 
1 ’ there, but it ought to be ‘June 1,’ undoubtedly. 


STANLEY MATTHEWS. 


685 


Q. The next day he sends you the letter, as I understand, on page 106, stating that 
he had sent that dispatch on the spur of the moment, which he thinks you might mis¬ 
construe?—A. Yes, sir. 

“Q. And then remarks, ‘do not understand me as threatening you.’ Now, in that 
same letter he says that he has ‘ thought of a plan by which the President can get rid of 
me without embarrassing himself; that is, to give the appointment I ask to a gentleman 
whom I shall designate.’ Where was the necessity of the President getting rid of a man 
like Anderson?—A. I have no more knowledge on that point than you—than Mr. Ander¬ 
son’s own statement. 

11 Q- Then why was the arrangement made to give his brother a place in the Baltimore 
custom-house ?—A. All I can answer in regard to that is what I afterward ascertained, 
and that is that it was offered and given to Anderson, and that he tried it and became 
very much dissatisfied immediately with it, as he expressed himself in his letter of 
June 19, on page 106, where he describes what the duties of the office were, and then 
threw it up, refused to keep it, but succeeded, as I understood, in obtaining from Gen¬ 
eral Smith the appointment to the same place, as I always understood, of his own 
brother. 

“ Q. I call your attention to the fact that in this letter of the 19th he says that place 
has been offered him and he has declined it?—A. I know he does say so, but he told me, as 
I have already stated, when I met him on the train going from Washington to Baltimore, 
that he was going over there to enter on the duties of it, and was then very much pleased 
with the idea of having the employment. The next I heard was that I received this 
letter of June 19, in which he expressed his disgust at the position of inspector of customs. 
I inferred from that that he had actually entered on the duties of the place, had found 
what was required of him, and found that they were duties that he was not disposed to 
perform, and then wrote me that letter in which he says he declined it. My informa¬ 
tion subsequently was that this arrangement was made which I have just related, that 
having obtained employment in the office of the North American he abandoned all de¬ 
sire to have any appointment of his own, and obtained from the appointment clerk, Gen¬ 
eral Smith, the appointment of his brother to this place in the Baltimore custom-house, 
which he himself was not willing to have or to keep, whichever it was. 

“ Q. The letter of General Smith seems to confirm the theory that he declined alto¬ 
gether to consider the place?—A. I notice that it does. Nevertheless, I still say that he 
told me that morning on the train going to Baltimore that he was going over there for 
the purpose of entering on the duties of that office, and I inferred from that statement 
that he had in fact done it. When I got that letter I presumed that he had probably, 
on the experience of a day or two, found it was not what he thought it was, and had given 
it up. It may be, however, that he never did for a day occupy the office. I do not know 
personally about it. 

“ Q. On the 11th of February, 1878, he alleges that he addressed you a letter from Phila¬ 
delphia. Without going into the whole letter—it is on page 107 of the printed testi¬ 
mony—there occurs in it this paragraph: 

“ ‘In May last I warned you of just such a state of affairs as has come to pass. Had 
you adopted my suggestions then (in two respects), it could have been avoided. It is not 
too late yet, if prompt measures are taken. 

“ ‘Am no applicant for nor would I accept any position under the administration, and 
only desire to avoid the scandal that is in prospective. ’ 

“What did he mean could have been avoided, do you know, in that letter?—A. I do 
not. My answer to that letter is contained in a letter printed on page 38 of this state¬ 
ment, though there is still some mistake about the date. It must be ‘February 12,’ 
although printed ‘February 2,’ if his letter be correctly dated February 11, for I say: 

“ ‘ I have your note of yesterday, and in reply beg to say that I do not recollect the 
suggestions heretofore made by you, to which you refer, and which you think if adopted 
might still prove advantageous to the public interest, and I would be glad to have you 
adopt them.’ 

‘ ‘ This is a misprint. It does not make any sense. 

“ I have, however, been subjected to so much misrepresentation in regard to every¬ 
thing I have undertaken to do that I do not think it would be wise for me to go to Phila¬ 
delphia or Baltimore for the purpose of meeting you. In case you should find it convenient 
to be in Washington, I shall be pleased to see you.’ 

“What he referred to I do not know and never did. 

“ Q. Why did you head that ‘ personal and confidential ’; was there anything special 
in that?—A. No, sir; nothing more than to have it so understood that I was not writing 
it for publication. I am satisfied there is a misprint in the letter in the words ‘and I 
would be glad to have you adopt them. ’ That phrase has no meaning there, and it must 
be some other term that was used; it must be either ‘ mention them’ or ‘repeat them.’ 
Probably ‘ repeat ’ is the word. 


SENATE ELECTION CASES. 


686 

“ The Chairman. ‘Repeat’ is probably the word intended there, but you say you 
have no recollection of it ?—A. Yes, sir. 

“ The Chairman. The date is explained in the next sentence, because it says the let¬ 
ter is postmarked ‘ Washington, February 12, Congress ’ ?—A. Yes, sir; the date must be 
February 12. 

“Q. (By Mr. Whyte.) You wrote to Secretary Evarts on the 14th of May, as these 
papers seem to show, from Cincinnati a letter recommending Anderson for a consulship. 
The letter is on page 30 of the printed testimony furnished to the committee, Exhibit O. 
This letter was written after you had received the Nash agreement and the Weber agree¬ 
ment?—A. Yes, sir. 

“ Q. In this letter you say you had had a private conversation with the Secretary, and 
repeat that Mr. Anderson has ‘ been compelled to act a very difficult part, ’ and has ‘ very 
strong claims upon the administration in the public interests. ’ Did you think that that 
was a proper man to represent this Government abroad whom you knew to have exacted 
these two papers for the purpose of black-mailing the parties ?—A. In the abstract I should 
say no. Under the circumstances I thought it was better to have even such a man put 
into a position such as might be found for him than to have had the scandal of a publi¬ 
cation of these papers. That was my opinion at that time. 

‘ ‘ The other members of the committee having declined to ask any further questions, 

“The Chairman. Do you wish to make any further explanation or statement? 

“Mr. Matthews. No, sir. 

‘ ‘ The committee then deliberated upon the question whether further testimony should 
be taken or other witnesses called, and no member of the committee proposing to sum¬ 
mon any witness, the chairman was requested to make the following statement to Mr. 
Matthews: 

“ ‘Mr. Matthews, the committee have decided that they do not desire to call any wit¬ 
nesses at present. Do you wish to submit any further testimony, or do you desire the 
committee to summon any witnesses? ’ 

“Mr. Matthews. I do not.” 

Thereupon it was unanimously agreed that no further testimony should be taken, all 
of which will more fuMy appear from the printed minutes and proceedings of the com¬ 
mittee herewith reported. 

The committe confine themselves to the foregoing narrative of the facts, and, after full 
consideration, they find unanimously the statements of Mr. Matthews to be true, and 
that he had no connection with any real or supposed frauds in the election in Louisiana, 
and that he has not been guilty of any corrupt conduct in any of the matters referred to 
in the testimony, while we cannot but regard his action in respect to James E. Ander¬ 
son’s effort to obtain an appointment to office, under the circumstances, as wrong and 
injurious to the public interest. 

Proceedings of and before the select committee of the Senate appointed under the resolution of 

June 5, 1878. 

Tuesday, June 11, 1878. 

The committee appointed in pursuance of the following resolution adopted by the 
Senate on the 5th instant, met: 

‘ ‘ Resolved , That a select committee of seven Senators be appointed to inquire into and 
consider all things touching the matter stated and referred to by the Senator from Ohio 
[Mr. Matthews], and the events connected therewith, and particularly what connection, 
if any, that Senator had with any real or pretended frauds or other wrongs committed 
in the conduct and returns of the election in the State of Louisiana in 1876, and with 
any promises of protection or reward, if any, made by any one to one James E. Ander¬ 
son, or others, in consideration of, or connection with, any official conduct by said An¬ 
derson or others in relation to said election or the returns thereof; and into all the circum¬ 
stances of any recommendation by the said Senator of the said Anderson for appointment 
to office; and that said committee have power to send for persons and papers, to employ 
a clerk and stenographer, and have leave to sit during the recess.” 

Present: Messrs. Allison, Ingalls, Hoar, Davis of Illinois, Whyte, and Jones of Florida. 

After consultation it was determined to summon James E. Anderson as a witness for 
Thursday next. 

On motion, the committee adjourned to meet on Thursday next at noon. 

Thursday, June 13, 1878. 

The committee met at 12 o’clock m., pursuant to adjournment. 

Present: Messrs. Allison, Hoar, Davis, Whyte, and Jones. 

James E. Anderson, who had been summoned to attend as a witness, also appeared. 

The Acting Chairman (Mr. Allison). The witness, Mr. Anderson, is here; but I 


STANLEY MATTHEWS. 


687 


have this moment received a note from Mr. Morrison, of the House of Representatives, 
which I will read: 


Mr. Senator Allison, 

Chairman , &c 


House of Representatives, 
Washington, D. C., June 13, 1878. 


Mrs. Jenks is about to be put on the stand, and we would prefer, if entirely agreeable 
to the Senate committee, that Mr. Anderson should be present during her examination, 
this is important to the House committee. At any other time take him. 

W. R. MORRISON, 

Acting Chairman. 


I submit that to the committee. 

Mr. Hoar. Mr. Chairman, I move that Mr. Anderson be excused until the House 
committee shall consider him at liberty to attend here. 

Mr. Davis. 1 move that the chairman request Mr. Morrison to notify us when he will 
be ready to excuse Mr. Anderson from attendance on the House committee. 

The Witness. I suggest that that would depend in a great measure on the length of 
time it will take Mrs. Jenks to testify. I will state to the committee that as soon as 
Mrs. Jenks is examined I shall be ready to appear here at any hour. 

The Acting Chairman. Is there objection? [A pause.] It is the sense of the com¬ 
mittee, as I understand, that Mr. Anderson is excused, and he will report to us when 
Mr. Morrison is through with him. 

Mr. Hoar. I suggest, Mr. Chairman, that we deem ourselves as still in session, to be 
notified by the chairman when the witness is ready to be examined. 

The Acting Chairman. That is the understanding. 


Friday, June 21, 1878. 

The committee met pursuant to call. 

Present: Messrs. Allison (acting chairman), Hoar, Ingalls, Davis, Whyte, and Jones. 
Hon. Stanley Matthews was present by invitation. 

James E. Anderson, who had been summoned as a witness, appeared. 

The Acting Chairman. Will you be sworn ? 

Mr. Anderson . I will state to the committee before I take the oath that I desire to 
be represented here by counsel. 

The Acting Chairman. You desire to be represented by counsel? 

Mr. Anderson. I desire to be represented by counsel. 

The Acting Chairman. A witness! 

Mr. Anderson. A witness. I desire to be represented by counsel. 

Mr. Hoar. Mr. Chairman, I suppose he does not desire to have counsel present before 
we determine the question whether he shall be sworn. 

Mr. Anderson. I should like to have the question settled before I am sworn as to 
whether I can have counsel or not. 

Mr. Davis. That is a matter we can dispose of hereafter. [To the acting chairman. ] 
You can swear him and tell him we can discuss this matter afterward. We cannot dispose 
of this question now, probably. 

The Acting Chairman. Have you arranged for your counsel, if you have counsel ? 
Mr. Anderson. I will by to-morrow. 

Mr. Ingalls. Mr. Chairman, I hope there will be no delay about swearing the wit¬ 
ness. 

Mr. Davis. Oh, no, sir. 

Mr. Ingalls. This is a question for the committee to discuss. 

The Acting Chairman. You will be sworn, Mr. Anderson. 

The oath was administered. 

The Witness. Now I renew my request. 

The Acting Chairman. That we shall be obliged to consider. 

Mr. Davis. With closed doors, of course. 

The Acting Chairman. I think we had better settle the question now. 

The Witness. Can you excuse me for ten minutes? 

The Acting Chairman. No, we cannot excuse you just at this moment. 

The room was therefore cleared of all but members of the committee. After some time 
spent in deliberation the doors were reopened. 

The Acting Chairman. Mr. Anderson, the committee have decided that you are not 
entitled to counsel. 

The Witness. I simply desire to say that I have no statement to make and no ques 
tions to answer. 

The Acting Chairman. We will examine you when we are ready to do so. 


688 


SENATE ELECTION CASES. 


Mr. Hoar. I move that the room be cleared. 

The Acting Chairman. Do I understand you to decline to answer questions? 

The Witness. I do, emphatically. 

The Acting Chairman. The committee have decided that you ought to answer such 
questions as they desire to put to you. We are charged with an examination. All we 
want is the facts. I will he glad to have you state now to the committee your age, oc¬ 
cupation, and business. 

The Witness. I will state to the committee that I have no desire to throw any obstacle 
in their way, and it is my object and intention to aid them in everything in this inves¬ 
tigation, but I see no reason, no good reason, why I should not be allowed counsel in 
this matter. I am here absolutely friendless. I believe Mr. Matthews is here to repre¬ 
sent himself, and I think somebody should be here to represent me; and unless I am 
allowed counsel, as I said, I have no questions to answer and shall absolutely decline to 
answer anything that may be asked of me. 

The Acting Chairman. The committee have understood- 

The Witness. That is all I have to say in regard to the matter. 

By Mr. Ingalls: 

Q. Are you acting in this matter under the advice of counsel?—A. I am not. I am 
acting under my own advice. I have asked nobody’s counsel. I have no counsel here 
at all. 

By Mr. Davis: 

Q. You are a witness. You are not prosecuted.—A. I understand that. I under¬ 
stand the question, sir. 

Q. No court in the world ever allowed a witness counsel.—A. I believe the object of 
the committee is to get at the truth of this matter. If they are simply desirous of getting 
at the truth of it, I see no good reason why they should object to my having counsel 
present, at least somebody who will represent me in the matter. 

The Acting Chairman. Every gentleman of this committee is a member of the legal 
profession. We are charged with a duty simply of investigation, and we intend to dis¬ 
charge that duty impartially. 

Mr. Davis. And protect witnesses. 

The Acting Chairman. And protect witnesses and everybody. 

The Witness. Therefore I see no good reason why you should object to my having 
counsel present. I am perfectly willing, if Mr. Matthews is not present himself to 
direct this examination, to answer all questions; but if he is present and has the priv¬ 
ilege of directing my examination, I claim that I have the same privilege of having a 
gentleman here who will look after my interests in the matter. 

The Acting Chairman. Mr. Matthews may be a witness. You can then ask him 
any questions you may desire, if he should ask you questions. 

The Witness. Mr. Matthews is a lawyer and is capable of conducting his own case. 
I am not. 

By the Acting Chairman: 

Q. You decline to state your age, business, and occupation?—A. Under the circum¬ 
stances I do. 

Q. I will ask you another question. When did you make the acquaintance of Sena¬ 
tor Matthews?—A. I decline to answer. 

Q. Have you ever placed in Mr. Matthews’s custody any papers of any character; and, 
if so, what papers ?—A. I decline to answer. 

By Mr. Davis: 

Q. When did you first see Mr. Matthews?—A. I decline to answer. 

Q. Have you talked with any counsel on this subject at all ?—A. I have not. 

Q. Have you talked with any individual who gave you this advice?—A. I have not, 
except that I asked a gentleman to-day if I was not entitled to counsel before the com¬ 
mittee. 

By the Acting Chairman: 

Q. Who was that?—A. I spoke to two gentlemen, Mr. Parish and Mr. Springer, of the 
House committee. 

By Mr. Davis: 

Q. What did they say to you?—A. Mr. Springer said he thought the committee 
would not refuse to allow me counsel. 

Q. What did Mr. Parish say?—A. Mr. Parish said the same thing. 

Mr. Hoar. I move that the chairman be requested to inform the witness that the 


STANLEY MATTHEWS. 689 

questions which are put to him are put by the authority of the committee by the differ¬ 
ent members. 

The Acting Chairman (to the witness). You have heard the suggestion of Mr. Hoar, 
a member of the committee. I have put these questions at the suggestion of the com¬ 
mittee and every member of the committee. 

The Witness. I understand that; it is a matter of no difference by whose authority 
they are put. I simply under the circumstances decline to answer. 

Mr. Davis. I will ask you a question, unless the chairman rules it out. How do you 
need counsel except that when Mr. Matthews testifies you may want to cross-examine 
him? That is a different question altogether, whether counsel shall be allowed then.— 
A. Certainly. I think my counsel, if I have one, should hear my testimony as well as 
Mr. Matthews. 

The Acting Chairman. We have reporters taking every word you say in short-hand, 
and it will undoubtedly be published in the newspapers. 

The Witness. If the newspapers are taking it in short-hand and publishing it every 
morning, I see no objection to my having counsel. It is simply the addition of one 
more gentleman to be present. 

The Acting Chairman. This is a question we cannot argue with you. We have 
decided it. 

By Mr. Ingalls: 

Q. I understand your desire to be to employ counsel at your own expense?—A. Yes, 
fir; if I shall get counsel. I do not presume anybody will do it without expense; at 
least I have not been fortunate enough so tar to get anybody who would. 

Mr. Hoar. I move that the room be cleared for consultation. 

The Witness. I will state again that I have no desire to throw any obstacle in your 
way, and I simply make that request. 

The Acting Chairman. But you are throwing an absolute obstacle in the way. 

The Witness. I think it is only justice to myself to allow that. 

Mr. Davis. You are a witness to tell the truth. 

The Witness. I propose to tell the truth. 

Mr. Davis. To tell the truth in regard to Mr. Matthews, nothing else. We are con¬ 
fining it to that purpose, just to tell the truth, and if every witness in a trial should be 
allowed counsel, either before a court or a committee, there would be no end. 

The Witness. I am not brought here simply as a witness, but I am put on trial 
myself. 

Mr. Davis. No. 

The Acting Chairman. Not that. 

Mr. Davis. So far as we are concerned you are only a witness. 

By Mr. Whyte: 

Q. One single question. You then set at defiance, Mr. Anderson, the committee of the 
Senate, simply because you are not permitted to have counsel here at your own sugges¬ 
tion?—A. That is drawing it rather strongly. I simply say that I decline to answer any 
questions because I do not think I am allowed the privilege I claim as an American cit- 
zen. I will say further that if Mr. Matthews will say he will go before the Potter com- 
mittee of the House I will testify here. 

The Acting Chairman. We will not hear that. 

Mr. Whyte. We cannot have any terms about that. I only want to know if I un¬ 
derstand you that unless you are permitted to have counsel against the wishes of the 
committee you decline to testify, and set at defiance the Senate of the United States ? 

By Mr. Ingalls: 

Q. One point, Mr. Anderson. I understood you to be about to say that if Mr. Mat¬ 
thews would go before the Potter committee you would willingly testify here. —A. I 
will. 

Q. Did you have that conversation with Mr. Springer this morning and Mr. Parish?— 
A. I did not. 

Q. Has that proposition been made by you to any other person?—A. It has not been, 
directly or indirectly. 

Q. Has it been suggested to you?—A. I believe I spoke to some newspaper corre¬ 
spondent a few minutes ago. I said if Mr. Matthews would be willing to go before that 
committee I would be willing to testify over here. 

Q. You say that conversation was with a newspaper correspondent ?—A. Some news¬ 
paper correspondent. 

Q. This morning ?—A. A few minutes ago. I simply made that suggestion some time 
during the day. I made it of my own volition, not at his or anybody else’s. I simply 
stated my own opinion. 

S. Doc. 11-14 



690 


SENATE ELECTION CASES. 


By the Acting Chairman : 

Q. I will ask a question now, Mr. Anderson. When did you make up your mind not 
to testify before this committee unless you were represented by counsel ?—A. I thought 
of it last night coming over here. 

Q. Was that the first time you had that impression?—A. That was the first time. 

Q. Why did you leave the city, after the committee on the other side had discharged 
you, without notifying this committee?—A. I called on you with my attorney twice, 
sent in my card, and you refused to admit us. My wife was sick, and I had other busi¬ 
ness to look after in this world besides hanging round Washington. 

Q. You have never sent me your card.—A. My attorney did. 

Q. Who is your attorney?—A. Mr. Sypher, of Philadelphia. 

Q. I have never received any card from Mr. Sypher.—A. I was present twice when he 
sent in his card to the committee-room on appropriations. 

By Mr. Ingalls: 

Q. Is he the gentleman whom you desire to have appear for you?—A. I have no 
knowledge whom I shall. 

Q. You spoke of him as being your attorney.—A. Mr. Sypher is not in the city. He 
was my attorney before the House committee. 

Q. Were you represented before the House committee by attorney who was present 
before the committee?—A. Yes, sir. 

By the Acting Chairman: 

Q. And put questions for you ?—A. No questions; but he represented my interests. 

Q. By leave of the committee?—A. By leave of the committee. 

By Mr. Davis: 

Q. Did you ask the House committee to allow you an attorney?—A. Not specially. 

By Mr. Ingalls: 

Q. Did they know that he was there as your attorney?—A. Yes, sir. 

By Mr. Hoar: 

Q. What is Mr. Sypher’s first name?—A. J. E. 

By Mr. Davis: 

Q. Did he put any questions to you ?—A. None at all 

By Mr. Ingalls: 

Q. Did he advise you what to answer or refuse to answer?—A. Not at all. Mr. Sypher 
knew this whole question a year or more ago, and was simply there to look after my 
interests. 

By the Acting Chairman: 

Q. What are your interests in this matter ?—A. My interests are considerable. I have 
been laboring under the impression that I was liable at any time, the last year or two, 
to be indicted for perjury in Louisiana in connection with these returns. I went to Mr. 
Sypher in connection with that matter. 

Q. Do you think you are in danger of that here in Washington?—A. Not if I prove 
that I did not forge returns. That has been charged against me. 

By Mr. Davis: 

Q. Did you ask the committee of the House for the privilege of having an attorney ?— 
A. Not directly. 

Q. How did you do it?—A. I believe I spoke to Mr. Gibson, of the New York Sun, and 
told him I should like to be represented by counsel some time ago, and my recollection 
is that he said he would have it arranged. 

By the Acting Chairman: 

Q. And you think it was arranged ?—A. Yes. 

By Mr. Davis: 

Q. You simply went in when Mr. Sypher was present witu you, and he asked no Ques¬ 
tions?— A. None at all. 

Q. And did not ask leave to ask any?—A. None at all. 

The committee-room was cleared for deliberation; and after some time spent in consul¬ 
tation, Mr. Matthews was invited to attend, and he accordingly appeared. 

The Acting Chairman. You have heard, Mr. Matthews, what Mr. Anderson has said. 
Have you any suggestion to make to the committee in reference to going on without Mr 
Anderson’s testimony? 


STANLEY MATTHEWS. 


691 


Mr. Davis. In other words, you know that the committee decided that the csae, 
whatever it was, should he made out, and then you should be put on the stand. You 
have seen how this ends for the present. Have you any suggestion to make ? Until 
the Senate meets we have no way of compelling his attendance. 

Mr. Matthews. I dislike very much to take the responsibility of making any sugges¬ 
tions to the committee on the subject. I am ready here to-day, and shall be at any 
luture time that the convenience of the committee shall fix, for the purpose of assisting 
the committee and facilitating it in any way within my power in the objects and pur¬ 
poses for which it was originated and authorized. 

The only course, other than that of waiting until the committee can have the power of 
the Senate to compel the attendance of the witness, is to obtain from the committee of 
the other House the statements which he has already made under oath before it, and 
which constituted the ground on the basis of which I asked the Senate for the appoint¬ 
ment of this committee. In case the committee think that that is sufficient for the pur¬ 
pose of the investigation with which they are charged, and obtain that testimony, I am 
ready to go on as if it had been delivered again here. But whether the committee ought 
to take that course I think is a question which the committee ought to decide for them¬ 
selves. I do not wish to be considered as giving any opinion or advice or expressing any 
wish in regard to that matter. 

The Acting Chairman. I think we can now relieve you from attendance, Mr. Mat¬ 
thews. 

Mr. Matthews thereupon retired; and the doors were thrown open to the public gen¬ 
erally. 

The Acting Chairman. Mr. Reporter, will you state what took place a moment ago 
when Mr. Matthews was called in. 

The stenographer read the statement made by Mr. Matthews. 

The Acting Chairman. The reporter has stated all that took place. Stand up, Mr. 
Anderson. [James E. Anderson rose.] The committee have decided that we will re¬ 
quire the testimony of Mr. Anderson; and I now wish to ask you, Mr. Anderson, if you 
are willing to answer such questions as may be propounded to you by the committee or 
any member of it ? 

Mr. Anderson. I am not. 

Q. You still persist ?—A. I still persist. 

Q. In refusing to answer any question pertaining to the matter before this commit¬ 
tee ? 

Mr. Anderson. I do. 

Q. And you therefore set the committee at defiance? 

Mr. Whyte. Mr. Chairman, in the absence of the Senate, we have no power to pun¬ 
ish Mr. Anderson for the contempt in refusing to answer our questions. Under these 
circumstances, I move that this committee adjourn, subject to the call of the chairman. 

The motion was agreed to. 


Tuesday, December 10, 1878. 

The committee met at 10J o’clock a. m., pursuant to call. 

Present: Messrs. Edmunds, Allison, Ingalls, Hoar, Davis, and Whyte. 

On motion of Mr. Allison, John W. Anderson was appointed clerk. 

Mr. Edmunds asked to be excused from service as chairman of the committee, in view 
of his other duties; and his request was granted. 

On motion of Mr. Davis, Mr. Allison was thereupon elected chairman. 

On motion of Mr. Edmunds, it was 

Ordered , That there be reported to the Senate the following: 

‘ 1 Resolved , That the House of Representatives be respectfully requested to transmit to 
the Senate a copy of the testimony of one James E. Anderson relating to the Hon. Stan¬ 
ley Matthews, a member of the Senate from the State of Ohio, understood to have been 
taken before one of the committees of the House of Representatives. ’ ’ 

Mr. Edmunds submitted a motion that James E. Anderson be reported to the Senate 
as in contempt of its authority for refusing to testify before this committee, and that the 
Senate be requested to take the proper proceedings to secure his attendance. 

The motion was not agreed to: there being three ayes: Messrs. Edmunds, Davis, and 
Whyte. The noes were: Messrs. Allison (chairman), Hoar, and Ingalls. 

On motion of Mr. Whyte, the committee adjourned to meet at the call of the chair¬ 
man. 

[The rest of the proceedings of the committee are embodied in the report.] 


G92 


SENATE ELECTION CASES, 


[Forty-sixth Congress—First and second sessions.] 

JOHN J. INGALLS, 

Senator from Kansas from March 4, 1873, till March 3, 1S9L. 


March 19,1879, the Yice-President laid before the Senate a memorial of oertain members of the legis¬ 
lature relative to the election of Mr. Ingalls to his second term of office, beginning March 4,1879. 
The memorial was referred to the Committee on Privileges and Elections. March 27, certain letters 
transmitting a report of a committee of the house of representatives of Kansas, which had investi¬ 
gated said election, was referred to the committee. Certain other papers relative to the election 
were at other times referred to the committee. June 21, the committee were authorized to make an 
investigation of the election. February 17, 1880, the committee reported the testimony taken and 
the following resolution: “ Resolved , That the testimony taken by the committee proves that bribery 
and other corrupt means were employed by persons favoring the election of Hon. John J. Ingalls to 
the Senate, to obtain for him the votes of members of the legislature of Kansas in the Senatorial elec¬ 
tion in that State. But it is not proved by the testimony that enough votes were secured by such 
means to determine the result of the election in his favor. Nor is it shown that Senator Ingalls 
authorized acts of bribery to secure his election.” Views of the minority concurred in the part of 
the report exonerating Mr. Ingalls, but held that “ when the report goes further and finds that per¬ 
sons favoring Mr. Ingalls’s election were guilty of such practices, it should in justice state what was 
clearly and unquestionably proved, that such means were employed in opposition to his election.” 
No further action was taken by the Senate. Mr. Ingalls was allowed reimbursement of the neces¬ 
sary expenses incurred in defense of his title to his seat. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journals, 46th Cong., and the report of the committee (without the testimony) from 
Senate Reports, 46th Cong., 2d sess.. No. 277. 

Special references to the debates of each day are inserted below. 

Saturday, February 22, 1879. 

The Vice-President laid before the Senate the credentials of John J. Ingalls, elected a 
Senator by the legislature of Kansas for the term of six years commencing March 4, 1879; 
which were read. 


[First session of the Forty-sixth Congress. ] 

Tuesday, March 18, 1879. 

The credentials of John J. Ingalls having been heretofore presented, the oaths pre¬ 
scribed by law were administered to him, and he took his seat in the Senate. 

Wednesday, March 19,1879. 

The Vice-President laid before the Senate a memorial of certain members of the legis¬ 
lature of Kansas in relation to the election of John J. Ingalls as a Senator from that 
State; which was referred to the Committee on Privileges and Elections. 

Thursday, March 27, 1879. 

The Vice-President laid before the Senate a letter of F. S. Stumbaugh and L. F. Egg- 
ers, transmitting a copy of the report of the special committee of the house of representa¬ 
tives of Kansas charged with the investigation of the election of John J. Ingalls to the 
United States Senate; which was referred to the Committee on Privileges and Elections. 

Thursday, April 24, 1879. 

The President pro tempore laid before the Senate additional papers signed by F. S. 
Stumbaugh and L. F. Eggers, in relation to the election of John J. Ingalls to the Senate 
as a Senator from the State of Kansas; which were referred to the Committee on Privi¬ 
leges and Elections. 

Friday, June 20, 1879. 

Mr. Saulsbury, from the Committee on Privileges and Elections, reported the follow¬ 
ing resolution for consideration; which was ordered to be printed: 

‘ 1 Resolved, That the Committee on Privileges and Elections, to which has been referred 
memorials in relation to the election of Hon. J. J. Ingalls a Senator by the legislature of 
the State of Kansas, be, and said committee is hereby, authorized and instructed to 
investigate the statements and charges contained in said memorials; and for that purpose 


JOHN J. INGALLS. 


693 


said committee is empowered to send for persons and papers, administer oaths, employ a 
stenographer, clerk, and sergeant-at-arms, and to do all such acts as are necessary and 
proper in the premises. And said committee may appoint a subcommittee of its mem¬ 
bers to take testimony in Kansas or elsewhere in the case, which shall report the testi¬ 
mony taken to the committee in December next; and such subcommittee shall have the 
same authority to administer oaths and to do other necessary acts as are herein conferred 
upon the full committee; and the said committee, and the subcommittee which it may 
appoint, may sit during the recess of the Senate for the purpose of making the investiga¬ 
tion hereby authorized. ’ ’ 

Saturday, June 21, 1879. 

The Senate proceeded to consider the resolution (given above) yesterday reported by 
Mr. Saulsbury from the Committee on Privileges and Elections; and 

Resolved, That the Senate agree thereto. 

Tuesday, June 24, 1879. 

Mr. Bailey, from the Committee on Privileges and Elections, reported the following 
resolution; which was considered by unanimous consent, and agreed to: 

“ Resolved, That the expenses of the investigation ordered by the Senate to be made 
by the Committee on Privileges and Elections in relation to certain matters connected 
with the election of Hon. J. J. Ingalls, a Senator from the State of Kansas, be paid out 
of the 1 miscellaneous items 1 of the contingent fund of the Senate, to be disbursed upon 
vouchers approved by the chairman of the committee or the chairman of the subcom¬ 
mittee that may be designated by said committee to take testimony in the case ’ * 


[Second session of the Forty-sixth Congress.] 

Monday, December 15, 1879. 

Mr. Saulsbury, from the Committee on Privileges and Elections, reported the follow¬ 
ing resolution; which was considered by unanimous consent, and agreed to: 

‘ ‘ Resolved , That the Committee on Privileges and Elections be authorized to have 
printed for its use the testimony taken in Kansas relative to the charges contained in 
the memorials relative to the election of John J. Ingalls as Senator from the State of 
Kansas, and such other testimony as may be taken in the said case.” 

Thursday, December 18, 1879. 

Mr. Saulsbury, from the Committee on Privileges and Elections, reported the follow¬ 
ing resolution; which was considered by unanimous consent, and agreed to: 

* ‘ Whereas J. V. Admire, E. B. Purcell, George T. Anthony, Len. T. Smith, and Levi 
Wilson, citizens and residents of the State of Kansas, were duly served with subpoenas 
in the months of September and October, 1879, issued by the subcommittee of the Sen¬ 
ate Committee on Privileges and Elections, then sitting in Topeka, in said State of Kan¬ 
sas, commanding each of them to appear before said subcommittee and then and thera 
testify in reference to the subject-matters then under consideration by said subcommit¬ 
tee, to wit, charges relating to the election of John J. Ingalls a Senator from said State 
of Kansas; and 

‘ ‘ Whereas said Admire, Purcell, Anthony, Smith, and Wilson refused to appear and 
testify before said subcommittee as required by said subpoenas: Therefore, 

“ Resolved, That an attachment issue forthwith directed to the Sergeant-at-Arms of 
the Senate commanding him to bring said J. V. Admire, E. B. Purcell, George T. An¬ 
thony, Len. T. Smith, and Levi Wilson forthwith to the bar of the Senate to answer for 
contempt of a process of this body.” 

Thursday, January 8, 1880. 

The Sergeant-at-Arms appeared at the bar of the Senate having in custody Leonard 
T. Smith, Levi Wilson, and E. B. Purcell, arrested by order of the Senate and brought 
to its bar to answer for a contempt of a process of the Senate. 

Whereupon 

The Vice-President laid before the Senate the return of the writ of attachment issued 
to the Sergeant-at-Arms commanding him to bring J. Y. Admire, George T. Anthony, 
Leonard T. Smith, Levi Wilson, and E. B. Purcell to answer for a contempt of a process 
of the Senate. 

The return having been made, 

Leonard T. Smith, one of the witnesses, advanced and made statement of his reasons 
for failure to answer to the summons of the Senate. 

On motion by Mr. McMillan that the witness be discharged; 


694 


SENATE ELECTION CASES. 


On motion by Mr. Garland to amend the motion as follows, viz: “That the witness, 
having purged himself of contempt, be discharged from the rule,” 

After debate, it was determined in the affirmative. 

Mr. Saulsbury submitted the following resolution as an amendment to the motion of 
Mr. McMillan as amended: 

“Whereas Leonard T. Smith, now in custody of the Sergeant-at-Arms on an attach¬ 
ment for contempt for refusing obedience to a summons to appear before a committee of 
the Senate, has purged himself of contempt, and expressed his willingness to appear 
before the Committee on Privileges and Elections and answer such proper questions as 
may be put to him: Therefore, 

“ Resolved , That said Leonard T. Smith be discharged from arrest and that he appear 
before said Committee on Privileges and Elections and testify under the subpoena served 
upon him.” 

It was determined in the negative. 

The question recurring on the motion of Mr. McMillan, as amended, it was deter¬ 
mined in the affirmative. 

Levi Wilson, another of the witnesses, having made statement of his reasons for fail¬ 
ure to answer the summons of the Senate, 

On motion by Mr. Saulsbury that the witness be discharged from the rule, it was de¬ 
termined in the affirmative. 

E. B. Purcell, another of the witnesses, having made statement of his reasons for 
failure to answer to the summons of the Senate, - 

On motion by Mr. Saulsbury that the witness be discharged from the rule, it was de¬ 
termined in the affirmative. 

On motion by Mr. Saulsbury, 

Ordered , That the Sergeant-at-Arms have further time to make return concerning the 
failure of J. Y. Admire and George T. Anthony, the other witnesses named in the writ 
of attachment of December 18,1879, to answer for a contempt of a process of the Senate. 

On motion by Mr. Davis, of Illinois, the Senate proceeded to the consideration of ex¬ 
ecutive business. 

[The debate is found on pages 234-241 of the Congressional Record, vol. x, part 1.] 

Tuesday, January 20, 1880. 

The Sergeant-at-Arms appeared at the bar of the Senate, having in custody J. Y. Ad¬ 
mire, to answer for contempt in refusing obedience to a summons of the Senate. 

Whereupon 

The Vice-President laid before the Senate the return of the writ of attachment issued 
to the Sergeant-at-Arms December 18, 1879, commanding him to bring J. Y. Admire, 
G. T. Anthony, L. T. Smith, Levi Wilson, and E. B. Purcell to answer for a contempt 
of a process of the Senate. 

The return was read. 

The witness having made statement of his reasons for failure to answer to the sum¬ 
mons of the Senate, 

On motion by Mr. Saulsbury that the witness be discharged from the rule, it was de¬ 
termined in the affirmative. 

On motion by Mr. Saulsbury, 

Ordered, That George T. Anthony, the other witness named in the writ of attachment 
of December 18, 1879, be discharged as from contempt without appearing before the 
Senate. 

On motion by Mr. Davis, of West Virginia, the Senate proceeded to the consideration 
of executive business. 

[The debate is found on page 415 of the Congressional Record, vol. x, part 1.] 

Tuesday, February 17, 1880. 

Mr. Saulsbury. from the Committee on Privileges and Elections, to whom was referred 
the memorials in relation to the election of John J. Ingalls, a Senator from the State of 
Kansas, submitted a report (No. 277) thereon, accompanied by the following resolution; 
which was considered by unanimous consent, and agreed to: 

‘ ‘ Resolved , That the testimony taken by the committee proves that bribery and other 
corrupt means were employed by persons favoring the election of Hon. John J. Ingalls 
in the Senatorial election to the Senate to obtain for him the votes of members of the 
legislature of Kansas in that State. But it is not proved by the testimony that enough 
votes were secured by such means to determine the result of the election in his favor, 
nor is it shown that Senator Ingalls authorized acts of bribery to secure his election. ’ ’ 

Mr. Cameron, of Wisconsin, asked and obtained leave to submit the views of a minor¬ 
ity of the Committee on Privileges and Elections; which were ordered to be printed to 
accompany the foregoing report. 


JOHN J. INGALLS. 


695 


On motion by Mr. Saulsbury, 

Ordered , That the testimony taken by the Committee on Privileges and Elections in 
the investigation of the election of John J. Ingalls to the United States Senate from the 
State of Kansas be printed, and that the committee be discharged from the farther con¬ 
sideration of the memorials in relation thereto. 

REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Saulsbury (chairman), Hill of Georgia, Keman, 
Bailey, Pryor, Vance, Cameron of Wisconsin, Hoar, and Logan.] 

In the Senate of the United States. 

February 17, 1880.—Ordered to be printed. 

Mr. Saulsbury, from the Committee on Privileges and Elections, submitted the fol¬ 
lowing report: 

The Committee on Privileges and Elections, to whom were referred memorials relating 
to the election of Hon. John J. Ingalls a Senator from the State of Kansas by the legis¬ 
lature of that State, have had the same under consideration and submit the following 
report: 

The committee, under the authority of a resolution adopted by the Senate, appointed 
a subcommittee of its members with instructions to investigate the charges and state¬ 
ments contained in said memorials. In discharge of the duty assigned them the mem¬ 
bers of the subcommittee met during the recess of the Senate in the city of Topeka, in 
said State, and examined a large number of witnesses, whose testimony, together with the 
testimony of witnesses examined before the whole committee during the present session, 
is herewith submitted to the Senate. 

The views entertained by the committee render it unnecessary to refer more particu¬ 
larly to the testimony, which will be found to sustain the conclusions of the committee 
expressed in the following resolution: 

Resolved , That the testimony taken by the committee proves that bribery and other 
corrupt means were employed by persons favoring the election of Hon. John J. Ingalls 
to the Senate to obtain for him the votes of members of the legislature of Kansas in the 
Senatorial election in that State. But it is not proved by the testimony that enough 
votes were secured by such means to determine the result of the election in his favor. 
Nor is it shown that Senator Ingalls authorized acts of bribery to secure his election. 

VIEWS OF THE MINORITY. 

The undersigned, a minority of the Committee on Privileges and Elections, who were 
directed to investigate certain statements and charges concerning the recent election of 
a Senator in the State of Kansas, respectfully submit our views as follows: 

We concur in part of the report. We exonerate Mr. Ingalls from any complicity with 
improper practices. We also find that the result of the election was not accomplished 
by such practices. We think that when the report goes further and finds that persons 
favoring Mr. Ingalls’s election were guilty of such practices, it should in justice state 
what was clearly and unquestionably proved, that such means were employed in oppo¬ 
sition to his election. 

ANGUS CAMERON. 

JOHN A. LOGAN. 

GEO. F. HOAR. 


[Third session of the Forty-sixth Congress.] 

Friday, January 21, 1881. 

Mr. Plumb submitted the following resolution; which was referred to the Committee 
to Audit and Control the Contingent Expenses of the Senate: 

“ Resolved , That there be paid to J. V. Admire, L. T. Smith, E. B. Purcell, and George 
T. Anthony, out of the contingent fund of the United States Senate, the mileage for at¬ 
tending as witnesses from the State of Kansas in the investigation of the election of Hon. 
J. J. Ingalls the same as the other witnesses received.” 

[The debate is found on pages 814, 815 of the Congressional Record, vol. xi, part 1.] 

Friday, January 28, 1881. 

On motion by Mr. Hill, of Georgia, 

Ordered . That the Committee to Audit and Control the Contingent Expenses ol the 


696 


SENATE ELECTION CASES. 


Senate be discharged from the further consideration of the resolution submitted by Mr. 
Plumb January 21, 1881, directing the payment of certain witnesses in the investigation 
of the election of the Hon. J. J. Ingalls, and that it be referred to the Committee on Privi¬ 
leges and Elections. 

REIMBURSEMENT OF MR. INGALLS’S EXPENSES. 

Friday, March 31, 1882. 

Mr. Hoar, from the Committee on Privileges and Elections, reported the following res¬ 
olution; which was read the first and second times by unanimous consent: 

“ Resolved, That there be paid out of the contingent fund of the Senate the sum of 
$8,195 to John J. Ingalls, a Senator from the State of Kansas, in reimbursement of ex¬ 
penses necessarily incurred by him in defense of his title to his seat.” 

The Senate proceeded, by unanimous consent, to consider the said resolution as in Com 
njittee of the Whole; and no amendment being made, it was reported to the Senate. 

Ordered, That it be engrossed and read a third time. 

The said resolution was read a third time by unanimous consent. 

Resolved, That the Se^te agree thereto. 


LAPHAM AND MILLER. 


697 


[Special session of Senate, October, 1881, and first session of the Forty-seventh Congress.] 

ELBRIDGE G. LAPHAM AND WARNER MILLER, 
of New York. 


October 11,1881, the day on which Messrs. Lapham and Miller took their seats, a memorial was 
presented remonstrating against their admission until certain allegations affecting their elections 
had been investigated. October 21, the memorial was referred to the Committee on Privileges and 
Elections. December 12, the committee reported back the memorial and asked that it lie on the 
table, and that the committee be discharged from its further consideration. It was so ordered De¬ 
cember 13. The statement of Mr. Hill, in the nature of an oral report, given below, will show the 
nature of the allegations of the memorial, and the reasons for the action of the committee. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journal, 47th Cong., 1st sess., and the remarks of Mr. Hill from the Congressional 
Record, vol. xiii,part 1, pages 70,71. 

There were no debates. 


[Special session of Senate, October, 1881.] 

Monday, October 10, 1881. 

Mr. Edmunds presented the credentials of Elbridge G. Lapham, elected a Senator by 
the legislature of New York to fill the vacancy occasioned by the resignation of the Hon. 
Roscoe Conkling; which were read. 

Mr. Edmunds presented the credentials of Warner Miller, elected a Senator by the 
legislature of New York to fill the vacancy occasioned by the resignation of the Hon. 
Thomas C. Platt; which were read. 

Tuesday, October 11, 1881. 

On motion by Mr. Edmunds that the oath prescribed by law be now administered to 
Elbridge G. Lapham and Warner Miller, Senators-elect from the State of New York; 

Pending which, 

Mr. McPherson presented a memorial of certain members of the legislature of New 
York, remonstrating against the admission of Mr. Lapham and Mr. Miller to seats in 
the Senate until certain allegations affecting their elections have been investigated. 

Ordered , That it lie on the table. 

The question recurring upon the motion of Mr. Edmunds that the oath prescribed by 
law be now administered to the Senators-elect from the State of New York, it was deter¬ 
mined in the affirmative. 

Mr. Lapham and Mr. Miller then appeared, and the oath prescribed by law having 
been administered to them by the President pro tempore, they took their seats in the Sen¬ 
ate. 

Friday, October 21, 1881. 

Mr. McPherson presented a memorial of Miner Gallop and E. H. Pinney, of New 
York, remonstrating against the admission of Warner Miller and Elbridge G. Lapham to 
seats in the Senate until certain allegations affecting their election shall have been in¬ 
vestigated; which was referred to the Committee on Privileges and Elections; and, 

On motion by Mr. McPherson, 

Ordered, That the memorial of certain members of the legislature of New York relating 
to the same subject, heretofore presented, be referred to the Committee on Privileges and 
Elections. 


[First session of the Forty-seventh Congress.] 

Thursday, December 8, 1881. 

On motion by Mr. Hoar, 

Ordered, That the petitionsof the citizens and membersof the legislature of New York 
concerning the elections of Senators Miller and Lapham be taken from the files of the 
Senate and referred to the Committee on Privileges and Elections. 

Monday, December 12,1881. 

Mr. Hill, of Georgia, from the Committee on Privileges and Elections, to whom was 
referred the memorial of certain members of the legislature of the State of New York 



698 


SENATE ELECTION CASES. 


affecting tlie right of the present Senators from that State to occupy seats on the floor of 
the Senate, reported it back, with the recommendation that the committee be discharged 
from the further consideration thereof; which was agreed to.* 


[Remarks of Mr. Hill, of Georgia, in the nature of an oral report, delivered December 12,1881, and 
found on pages 70, 71 of the Congressional Record, vol. xiii, part 1.] 

“I am instructed by the Committee on Privileges and Elections to report back to the 
Senate certain memorials from members of the legislature of New York affecting the 
right of the present Senators from that State to occupy seats in this Chamber, and to ask 
that the memorials lie on the table and the committee be discharged from their further 
consideration. 

‘ ‘ In deference to the memorialists, and at the special request of some of them, it is proper 
that I should state briefly and generally the reasons which authorize this conclusion. 

“ The memorials set forth five reasons as grounds why these gentlemen should not be 
allowed to sit here. The first alleges that the legislature did not proceed in separate 
bodies to vote upon the question until the third Tuesday after notice of the vacancy was com¬ 
municated by the governor. The facts are such as to create some controversy as to whether 
they did proceed on the second Tuesday or the third Tuesday after the notice; but, in 
any view, the committee are unanimously of the opinion that the legislature was not de¬ 
prived of its constitutional right to elect Senators to this body. 

“ The second allegation is that at one of the joint sessions of the general assembly a 
quorum of tlufr State senators was not present. It is not alleged that there was not a 
quorum present of each body on the days the respective elections took place, but it is al¬ 
leged or claimed that under the act of 1866 the failure of either body to be present with 
a quorum on any day deprives the legislature of the right to elect. The committee differ 
with the memorialists in that view. We think that one body of the legislature could not 
deprive the legislature of the right to elect by such absence, if unquestionably on the 
day of the election a quorum of each body of the legislature was present and voting. We 
think the reason alleged in this ground is not sufficient to invalidate the election. 

“ The third ground alleged is that there was not a majority of the whole legislature 
actually voting for the members chosen. In our opinion that is not necessary. There 
was a quorum of each house present in the joint assembly; there was a majority of that 
quorum actually voting for the members chosen. In our opinion that was a valid elec¬ 
tion. 

“ It is alleged specifically in the memorial that the Stockton case is a precedent to the 
contrary. On examination it will be found that the Stockton case is not a precedent to 
the contrary. Mr. Stockton, of New Jersey, in the celebrated case so well known, was 
chosen, not by a majority, but he was chosen by a plurality vote, the legislature in joint 
session having declared before the election that a plurality should elect. The Sena¬ 
tors now occupying the seats in question, from New York, were not chosen by a plural¬ 
ity vote; they were each chosen by a majority, a quorum of each body being present, and 
a majority of the joint assembly voting. I will state that if the cases from New York were 
like the case from New Jersey, I do not think at this day any gentleman would regard the 
Stockton case as a precedent. Unquestionably the body that elects has a right to pre¬ 
scribe that a plurality may elect, and I think the report made by Senator Trumbull on 
that occasion is not only correct, but conclusive of the law of the case. The committee, 
therefore, are of the opinion that that ground is not sufficient to invalidate the election. 

“ The fourth ground relates to Hon. W. Miller, and alleges that he is guilty of certain 
conduct in violation of section 1781 and section 1782 of the Revised Statutes which dis¬ 
qualify a member from holding any office of honor, trust, or profit under the United 
States Government. It is sufficient to say that the Senator from New York has never 
been convicted of a violation of those sections of the Revised Statutes, and a simple in¬ 
spection of the sections shows that it is conviction that disqualifies, and not allegations 
by outsiders or third persons who do not prosecute. Therefore the committee overrule 
that ground, and think it insufficient, conceding the facts alleged to be true for argu¬ 
ment; we do not know anything about them. 

‘ ‘ The last ground is one of fact. Before I have alluded to what are called legal grounds 
or allegations that by legal operation the election is void. The last ground alleges that 
there were rumors of bribery in procuring the election of these gentlemen. The allega¬ 
tion of mere rumors of bribery is not sufficient, unaccompanied with evidence, to require 
investigation at the hands of the Senate or of its committees. It is alleged in this me¬ 
morial that one State senator of New York is under indictment in that State for offering 
a bribe to a member of the house to vote in the Senatorial election. It is due to the Sen¬ 
ators holding the seats that the committee should say that that indictment is not for a 


*It appears from the Congressional Record, vol. xiii, part 1, page 76, that the motion that the com¬ 
mittee be discharged was agreed to December 13,1881. 



LAPHAM AND MILLER. 


699 


bribe offered to vote for either one of the present Senators. It is due also to state 
that while we find by reports that have been sent to us and investigations had that there 
were a great many scandals in connection with the Senatorial election in New York dur¬ 
ing the late session of the legislature, most of these scandals occurred before the two gen¬ 
tlemen now holding seats became even candidates before that body. 

“Therefore, sir, the committee, without going further into details, hold that the re¬ 
spective grounds alleged and all of them together are not sufficient to authorize fur¬ 
ther investigation, and do not make a case invalidating the election of the Senators from 
New York. We believe from all that is before us that the el actions were valid and ought 
to be so declared. We ask, therefore, that the committee be discharged from the fur¬ 
ther consideration of the subject.’’ 


700 


SENATE ELECTION CASES, 


[Forty-ninth Congress—First Session.] 

HENRY B. PAYNE, 
of Ohio . 


March 4, 1885, Henry B. Payne qualified and took his seat in the Senate as a Senator from the State 
of Ohio. April 26, 1886, the report of a special committee of the house of representatives of Ohio, ap¬ 
pointed to investigate charges of bribery against four of its members, together with the evidence 
taken by that committee, was presented in the Senate, and on May 11 referred to the Committee on Privi¬ 
leges and Elections. May 20, a memorial of the Republican State central committee of Ohio, charging 
that Mr. Payne’s election was secured by bribery and fraud, and urging that the Senate investigate 
these charges, was referred to the same committee, and on the 25th of May memorials were received 
from the two branches of the legislature of Ohio to the same effect. A similar memorial from a con¬ 
vention of Republican editors of Ohio was presented July 13, together with a petition of citizens of 
Ohio on the same subject. All these petitions and memorials were referred to the Committee on Privi¬ 
leges and Elections as presented. While the case was pending in committee, Messrs. Little and But- 
terworth, members of Congress from Ohio, appeared before the committee and offered to produce cer¬ 
tain additional evidence of bribery. July 15, three reports were submitted by the members of the 
committee. Two of these, signed respectively by four and three of the Senators composing the com¬ 
mittee, reached the conclusion that there was not sufficient evidence offered to warrant the Senate in 
proceeding with an investigation, while the third, signed by two of the committee, held that an inves¬ 
tigation should be made. 

It was not questioned by any member of the committee that to deprive a member of his seat it must 
be shown by legal evidence that he was personally guilty of the corrupt practices charged or that 
the corruption took place with his sanction and encouragement, or else that a sufficient number of 
votes was changed by the fraud or corruption charged to aft'ect the result and to secure an election 
which otherwise would not have been obtained. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from the Journal of the Senate, 1st sess. 49th Cong., and the report of the Committee, Sen. Rep. 
No. 1490, 1st sess. 49th Cong. The reports of thecomxnittee of the Ohio legislature, with the testimony 
on which they were founded, are to be found in Sen. Mis. Doc. 106, 1st sess. 49th Cong. The reports 
are printed below. 


[Special session of the Senate, March 4, 1885.] 

March 4, 1885. 

The credentials of the following named Senators having been heretofore presented 
to the Senate, the oath prescribed by law was administered to them by the Vice- 
President, and they took their seats in the Senate. 

[Among those named] 

Henry B. Payne, from the State of Ohio. 

[First session, Forty-ninth Congress.] 

Tuesday, April 27 , 1886 . 

The president pro tempore laid before the Senate a letter of the clerk of the house 
of representatives of the legislature of Ohio, transmitting a report of a special com¬ 
mittee of said house of representatives appointed to investigate certain charges 
touching the election of Hon. Henry B. Payne to the United States Senate; which, 
together with the accompanying papers, was ordered to be printed and referred to 
the Committee on Privileges and Elections. 

[At the same time Mr. Payne made a personal statement, which will be found at 
page 3861, Congressional Record, first session, Forty-ninth Congress.] 

Tuesday, May 4, 1886. 

Mr. Hoar presented a letter of the secretary of the investigating committee of the 
house of representatives of the legislature of Ohio, calling attention to certain mat¬ 
ter interpolated in the report of the investigation by said committee touching the 
election of Hon. H. B. Payne to the United States Senate and printed by order of 
the Senate; which was referred to the Committee on Privileges and Elections; and 
Ordered , That the further distribution of the said report be discontinued, and that 
the same be reprinted under the direction of the Committee on Privileges and 
Elections. 

[The letter is printed at page 4118, Congressional Record, first session, Forty- 
ninth Congress.] J 


HENRY B. PAYNE. 


701 


Tuesday, May 11, 1886. 

Mr. Iloar presented a memorial of the Republican central committee of Ohio, 
praying an investigation into the charges touching the election of Hon. Henry B. 
Payne to the Senate; referred to the Committee on Privileges and Elections. 

Thursday, May 20, 1886. 

The President pro tempore laid before the Senate a resolution of the house of repre¬ 
sentatives ot the legislature of Ohio, in relation to the election of the Hon. Henry B. 
Payne to a seat in the Senate; which was referred to the Committee on Privileges 
and Elections and ordered to be printed. 

Tuesday, May 25, 1886. 

The President pro tempore laid before the Senate a memorial of the legislature of 
Ohio in favor ot an investigation by the Senate of the United States into the election 
of Hon. Henry B. Payne to that body; which was referred to the Committee on 
Privileges and Elections. 

Monday, June 7, 1886. 

Mr. Hoar submitted the following resolution, which was considered by unan¬ 
imous consent, and agreed to: 

.Resolved, That the Committee on Privileges and Elections, to whom were referred 
sundry memorials from the State of Ohio in regard to the recent election of a Senator 
in that State, be authorized to employ a stenographer, to be paid out of the con¬ 
tingent fund of the Senate. 


Tuesday, July 13, 1886. 

The President pro tempore laid before the Senate a memorial of the convention of 
Republican editors, held at Columbus, Ohio, July 8, 1886, praying an investigation 
into the charges touching the election of Hon. Henry B. Payne to the United States 
Senate, which was referred to the Committee on Privileges and Elections and ordered 
to be printed. 

[Printed as Sen. Mis. Doc. No. 141, 1st sess., 49th Cong.] 

The President pro tempore laid before the Senate two petitions of citizens of Ohio, 
praying an investigation into the charges touching the election of Hon. Henry B. 
Payne to the United States Senate; which was referred to the Committee on Priv¬ 
ileges and Elections. 

Thursday, July 15, 1886. 

Mr. Pugh, from the Committee on Privileges and Elections, to whom were referred 
several memorials praying an investigation into the election of Henry B. Payne as 
United States Senator from the State of Ohio, submitted a report (No. 1490) thereon. 

Mr. Evarts asked and obtained leave to submit the views of a minority of three 
members of the Committee on Privileges and Elections on the foregoing subject; 
which were ordered to be printed as Part 2 of the Report No. 1490. 

Mr. Hoar asked and obtained leave to submit the views of a minority of two of 
the members of the Committee on Privileges and Elections on the foregoing subject; 
which were ordered to be printed as Part 3 of the Report No. 1490, accompanied by 
the following resolution for consideration : 

Resolved, That the Committee on Privileges and Elections, or any subcommittee 
thereof, be authorized to investigate the charges affecting the title to the seat of 
Hon. Henry B. Payne, and to send for persons and papers, administer oaths, and 
employ a clerk and stenographer, and to sit during the recess of the Senate; and 
that the expenses of the investigation be paid out of the contingent fund of the 
Senate. 

REPORT OF THE COMMITTEE. 

In the Senate of the United States. 

July 15, 1886.—Ordered to be printed. 

Mr. Pugh, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

(1) On April 27, 1886, the Senate referred to your committee— 

“ The testimony taken from the select committee of the house of representatives of 
Ohio, and the report of said committee as to charges against the official integrity 
and character of certain members of said house of representatives in connection 
with the election of Hon. Henry B. Payne as United States Senator.” 

(2) On May 20, 1886, the Senate also referred to your committee the following copy 


702 


SENATE ELECTION CASES. 


of the resolutions of the house of representatives of the State of Ohio in respect to 
the election of the Hon. Henry B. Payne as a Senator from that State, viz: 

“ Whereas it is the precedent in the United States Senate that charges of bribery 
must be directly made to warrant a committee of said body in proceeding to investi¬ 
gate the title of any United States Senator to his seat: Therefore, 

“Be it resolved by the house of representatives of Ohio, That in the investigation made 
under house resolution No. 28 ample testimony was adduced to warrant the belief 
that the charges heretofore made by the Democratic press of Ohio are true, to wit, 
that the seat of Henry B. Payne in the United States Senate was purchased by the 
corrupt use of money; and 

“Further resolved, That the honor of Ohio demands, and this house of representa¬ 
tives requests, that the said title of Henry B. Payne to a seat in the United States 
Senate be rigidly investigated by said Senate.”. 

(3) The Senate also referred to your committee the following resolution of the 
Senate of Ohio: 

“ Whereas by common report, suggested and corroborated by the public press of 
the State without respect to party, and by a recent investigation of the house of 
representatives, the title of Henry B. Payne to a seat in the United States Senate is 
vitiated by corrupt practices and the corrupt use of money in procuriug his election; 
and 

“Whereas it is deemed expedient, in order to secure a thorough investigation of 
his said election as Senator by the United Senate, that the belief of the general 
assembly in this regard be formulated in a specific charge: Therefore, 

“ Be it resolved, That in the opinion of the general assembly, and it so charges, the 
election of Henry B. Payne as Senator of the United States from Ohio in January, 
1884, was procured and brought about by the corrupt use of money paid to or for the 
benefit of divers and sundry members of the sixty-sixth general assemby of Ohio, and 
by other corrupt means and practices, a more particular statement of which can not 
now be given. 

“Resolved, That the Senate -of the United States be, and the same is hereby, 
requested to make a full investigation into the facts of such election, so far as per¬ 
tains to corrupt means used in that behalf.” 

(4) The Senate also referred to your committee the following resolutions of the 
Republican State central committee of Ohio: 


“Republican State Committee Rooms, 

“ Columbus, Ohio, May 5, 1886. 

“Whereas it has been shown to our satisfaction by the testimony taken by the com¬ 
mittee of the Ohio house of representatives, under house resolution No. 28, and from 
other sources, so strongly as to induce us to believe and charge that the election of 
Henry B. Payne to the Senate of the United States was secured by bribery, fraud, 
and corruption; and 

“Whereas the testimony so taken has been by the house of representatives reported 
to the Senate of the United States, for such action as that body may see fit to take on 
account thereof; and 

“Whereas the facts so established reflect upon the good name of the State of Ohio, 
and affect in morals, as well as in law, the validity of the title of Mr. Payne to his 
seat in the Senate: Now, therefore, 

“Be it resolved by the Republican central committee of Ohio, That in the name of all 
honest people in the State of Ohio, and for the credit of the hitherto-unsullied name 
and reputation of our State, the Senate of the United States be, and hereby is, 
respectfully requested to prosecute such investigation into the matters suggested by 
said report and the charges herein preferred, and to take such action thereon as may 
be necessary to relieve our State from the disgrace which it now rests under, and to 
do equity and justice to all concerned; and 

“Resolved further, That the chairman of this committee is directed to forward an 
authenticated copy of this resolution to Hon. George F. Hoar, chairman of the Com¬ 
mittee on Privileges and Elections of the United States Senate. 

“ We hereby certify the foregoing to be a true copy of the preamble and resolution 
adopted by the Republican State central committee of Ohio at a regular meeting 
held in the city of Columbus, Ohio, this 5th day of May, 1886. 


“Joshua K. Brown, 

“Secretary .” 


“Jas. E. Lowry, 

“ Chairman. 


The testimony given before the select committee of the house of representatives 
of Ohio was taken under the authority of the following resolution, adonted bv the 
house January 13, 1886: ’ 

“Whereas the Cincinnati Commercial-Gazette of January 12, 1886, contains a 


HENRY B. PAYNE. 


703 


printed statement, on the authority of S. W. Donavin, alleging grave charges against 
the official integrity and characters of members of this house, namely, Hon. D. Baker, 
Hou. P. Hunt, Hon. W. A. Schultz, and Hon. Mr. Ziegler, so definite and precise in 
statement as to call for immediate action in order to vindicate the reputation of 
members of this house: Therefore, 

“Resolved , That a select committee of five be appointed to inquire into all the facts 
of the charges so alleged, and report their conclusions to this house at as early a date 
as possible; and in the prosecution of this inquiry said select committee are empow¬ 
ered to send for persons and papers and to examine witnesses under oath.” 

The extent and character of the investigation made by the select committee, under 
the above house resolution, is described by the select committee in their report as 
follows: 

“Although but four persons, and they members of the present house, are named in 
the resolution, and the committee is required by its terms to investigate and report 
concerning them only, it was found necessary to extend the inquiry beyond this limit, 
in order to gain something like a comprehensive view of the situation pertaining to 
said election. 

****### 

“Whenever our attention was called to anything which indicated the probable 
employment of improper means to gain support, we followed the clews presented, on 
the theory that we were not only authorized, but in duty bound, to pursue any matter 
that promised, even remotely, to show the use of such means in connection with 
the election, because the discovery of one important fact, although having no imme¬ 
diate bearing upon the charge against the person named in the resolution, might- 
lead to the discovery of facts having such bearing. And furthermore, and upon the 
same theory, our inquiries were not confined to the technical rules of legal proof, 
but the committee availed itself of any source of information—admitted hearsay 
statements, and even the opinions of witnesses. But we consider in making this 
report no facts should be stated which are not sustained by testimony upon which a 
legislative body might base further action.” 

# # # * # # * 

The conclusion reached by the select committee, after the examination of the fifty- 
five witnesses, is also stated in their report, as follows: 

“Although, as stated in the outset, the testimony developed nothing of an incul¬ 
pating character concerning the members of this house named in the resolution of 
inquiry, we believe that circumstances surrounding the election of Henry B. Payne 
as one of the Senators to represent the State of Ohio in the Congress of the United 
States, as presented by the testimony, are such as to warrant us in recommending 
that an authenticated copy of the testimony and report be transmitted to the Presi¬ 
dent of the United States Senate, for the information of the body of which Senator 
Payne is a member, and for such action as it may deem advisable.” 

Upon the presentation of the above report the house of representatives of Ohio 
adopted the following resolution, on the 16th of April, 1886: 

“ Resolved by the house of representatives of the sixty-seventh general assembly of the 
State of Ohio, That the clerk of the house be, and he is hereby, directed to transmit 
a copy, duly authenticated, of the testimony taken by the select committee appointed 
in pursuance of house resolution No. 28, and of the report of said committee, to the 
President of the United States Senate, to be by him presented to that body.” 

The testimony taken by the select committee is contained in Senate Miscellaneous 
Document No. 1.06. It is not denied that the investigation was had, and the testi¬ 
mony taken in secret session of the select committee with closed doors, and that the 
house of representatives refused to print the testimony. If any examination was 
made of the testimony by the members of the house, except those on the select com¬ 
mittee, no expression of any opinion, conclusion, or judgment thereon was made by 
the house, by resolution or otherwise, and it was resolved by the house, in accord¬ 
ance with the recommendations of the select committee, to transmit the testimony to 
the senate for its consideration and action without the formulation of any charge. 

On May 18, 1886, over a month after the adoption of the resolution directing the 
transmission of the testimony without any conclusions thereon, and requesting 
nothing but the consideration of the senate and such action as it thought proper, 
the same house of representatives, composed of the same members, after reciting that— 

“ Whereas it is the precedent in the United States Senate that charges of bribery 
must be directly made to warrant a committee of said body in proceeding to investigate the 
title of any United States Senator to his seat: 

“ Resolved, That in the investigation made under house resolutiouNo. 28 ample testi¬ 
mony was adduced to warrant the belief that the charges heretofore made by the Demo¬ 
cratic press of Ohio, that the seat of Henry B. Payne in the United States Senate was 
purchased by the corrupt use of money, are true." 

The select committee who had confronted and examined the fifty-five witnesses 


704 


SENATE ELECTION CASES. 


failed to discover that the testimony was “ ample” or strong enough to create the 
“ belief” that any such charges were true; and all the committee could say, and all 
the house could concur in saying, on the testimony when it was fresh in their recollection 
('if it had ever been road by any member), was, “ we believe that circumstances sur¬ 
rounding] the election of Henry B. Payne as United States Senator, as presented by the 
testimony , are such as to warrant us in transmitting to the Senate an authenticated copy 
of the testimony, without recommendation, or the expression of any opinion or belief 
as to what the testimony established. 

The charge made by the house for the first time on the 18th of May, 1886, nearly 
two years and a half after the election of Senator Payne, that his seat was purchased by 
the corrupt use of money, is founded expressly and solely on the testimony taken 
under house resolution No. 28. 

The resolution of the senate of Ohio adopted on May 14, 1886, states: 

“That in the opinion of the general assembly, and it [the general assembly] so 
charges, the election of Henry B. Payne as Senator of the United States from Ohio, 
in January, 1884, was procured and brought about by the corrupt use of money paid 
to or for the benefit of divers and sundry members of the sixty-sixth general assem¬ 
bly of Ohio, and by other cornet means and practices, a more particular statement 
of which can not now be given.” 

The above resolution was not a “joint,” but a “senate,” resolution, although it 
undertakes to express the opinion of the general assembly of Ohio four days prior 
to the passage by the house of its own resolution on the same subject. The resolu¬ 
tion of the Ohio senate is based expressly aud solely on “common report suggested 
and corroborated by the public press of the State without respect to party, and by 
a recent investigation of the house of representatives.” It nowhere appears that 
the testimony taken by the select committee of the House was ever reported to the 
Senate, or otherwise subjected to its examination. 

The Republican State central committee of Ohio, at a regular meeting held in the 
city of Columbus on the 5th day of May, 1886, preferred the charge “that the elec¬ 
tion of Henry B. Payne to the Senate of the United States was secured by bribery, 
fraud, and corruption,” and such charge is made on “the testimony taken by the 
committee of the Ohio house of representatives under house resolution No. 28, and 
from other sources .” 

Your committee are fully aware of the transcendent importance of throwing around 
the Senate of the United States the highest safeguards against seating or allowing 
any man to occupy a seat in that body whose title thereto was procured by bribery, 
fraud, or corruption. It is an undeniable public fact, causing general and serious 
apprehension among patriotic and thoughtful people, that in all representative gov¬ 
ernments founded on popular suffrage the indiscriminate and frequently the corrupt 
use of money by political parties, without exception, and their candidates, has 
become one of the most powerful and dangerous instrumentalities in elections. In 
the United States especially the power inseparable from great wealth in the hands 
of individuals and corporations has been, and we fear will always be, improperly 
and often corruptly exerted to produce successful results in elections. All parties 
invite, aud as a rule demand, the contribution of money to control elections, and its 
influence has been found to be so potential that its use is generally accepted by pub¬ 
lic opinion as being indispensable and permissible to insure the success of parties 
and their candidates. 

The charge in the case before us is made by the two houses of the general assem¬ 
bly of Ohio, acting separately, and by the Republican State central committee of 
Ohio, that Henry B. Payne obtained the seat lie now occupies in the Senate of the 
United States by the corrupt use of money, or, to be more specific, by bribery of 
members of the legislature. The gravity of the charge and the respectability and 
responsibility of those who make it are conceded, and your committee are deeply 
sensible of the obligation they are under to examine and decide the question referred 
to them as one of momeutous public importance. 

It is manifest that the charge as it comes to the Senate has its origin and support 
in the testimony taken by the Ohio house, under resolution No. 28, and forwarded to 
the Senate and printed in Mis. Doc. No. 106. 

It is equally manifest to a majority of your committee that no consideration of 
duty, law, justice, public policy, or propriety requires the Senate to authorize an 
examination into the title of a Senator to his seat upon the naked charge of the leg¬ 
islature of his State that his election was i>rocured by bribery of the members by 
whom he was elected, without informing the Senate of any fact or evidence or wit¬ 
ness to establish or create reasonable ground to support the charge. 

It would be unprecedented and inexplicable if any legislature were to make such 
a grave charge without any preliminary examination into its truth or justification, 
and your committee feel constrained to believe that it is absolutely certain that no 
such charge will ever be made by any legislature without an investigation and with¬ 
out evidence to verify the charge; and that it is equally certain that no legislature 


HENRY B. PAYNE. 


705 


would request the Senate to enter upon such examination without furnishing the 
facts and witnesses to create a reasonable belief that the charge could be established 
by legal evidence if the Senate were to order an investigation. The sitting member 
was seated on credentials under the seal of his State showing that he had been 
legally and regularly elected by the legislature of his State. These credentials were 
read in the hearing oi the Senate and remained on the files of the Senate sufficient 
time to allow those who now assail the validity of the election to make their charges 
and ask for an investigation by the Senate. 

The main tacts and circumstances to which so much importance has been attached 
to create belief and excite suspicion that money was corruptly used in the election, 
and that the Senate should make the investigation, were as public and well known 
when Senator Payne was seated as they are to-day. Why were two years and over 
allowed to pass without question or action by those who seem now to be so confident 
and persistent in charging foul play in the election of Senator Payne? The legisla¬ 
ture of Ohio exercised its constitutional power of electing Henry B. Payne to the 
Senate of the United States. The legislature that elected him had unquestioned 
jurisdiction of that subject, and when the evidence of that election in the manner 
prescribed by the law and the Constitution is presented in the credentials under the 
seal of the State every presumption in favor of the validity of the election must be 
indulged by the Senate. 

But it may be, and has been, urged that the two houses, acting separately, of 
another legislature of Ohio, send us resolutions, passed in due form, in which the 
specific charge is made that the members of the legislature that elected Mr. Payne, 
or some of them, were bribed with money by his friends, and that his election was 
procured by the corrupt use of money. It must be conceded that the two houses of 
the sixty-seventh general assembly of Ohio had no power or authority over the 
election or the title of Henry B. Payne as United States Senator. The two houses 
having no jurisdiction over the subject, it is manifest that as a matter of right or 
authority they had no more claim upon the consideration of the Senate as to the 
charge contained in their resolutions than the State Republican central committee. 
The only difference is in the number and position of the members of the several 
bodies who present the charge and request an investigation. The sixty-sixth gen¬ 
eral assembly of Ohio had power and jurisdiction to confer upon Henry B. Payne 
his title as a United States Senator. The only power that exists anyw here to try 
the validity of that title and to annul it is vested in the Senate of the United States. 
Would the Senate order an investigation of the title of a Senator to his seat on a 
charge made by any body of men, w hatever might be their dignity or respectability, 
wholly unsupported and unaccompanied by any fact, evidence, or reason to make 
out the charge or to create a reasonable belief that the charge can be established 
and the sitting member deprived of his seat by an investigation? 

A majority of your committee are constrained to believe that if such naked, unsup¬ 
ported charges by one man or any number of men could involve the Senate and any 
Senator in a trial of his right to his seat, such a precedent and practice would 
become an agency of persecution by the political and personal enemies of any Sen¬ 
ator, and seriously impair the independence and standing of the Senate. No expec¬ 
tation was entertained by those w r ho make the chargee in the present case that they 
w r ould receive a moment’s consideration if presented without being accompanied by 
the testimony upon which the charge is founded. Then the question is, has enough 
proof been adduced to justify the Senate in going into a trial of the right of Senator 
Payne to his seat? 

In the case before your committee an investigation w r as ordered as to charges 
against four members of the Ohio house of representatives, and although the author¬ 
ity of the select committee was limited to the four inculpated members, yet the 
select committee enlarged the scope of its examination and explored the whole held 
of inquiry the Senate is now requested to enter for the discovery of evidence of 
which your committee has no information upon which they can act, as having any 
real existence or legality, to make out reasonable ground for belief that the charge 
can be sustained by authorizing another investigation. 

Your committee are of the opinion that to deprive a sitting member of the Senate 
of his seat, the Senate must be satisfied by legal evidence that he was 'personally 
guilty of bribery, or that he was personally connected with the bribery or the cor- 
rupt use of money to procure his election, or that he had personal knowledge of such 
corrupt use of money and personally sanctioned or encouraged such use thereof to 
insure his election. The legal effect of such personal guilt of the sitting member on 
his election your committee do not decide, some members being of opinion that 
whether it extended to the corruption of the majority of the nominating caucus or 
the majority of the legislature of the State which secured his election is immaterial 
on the trial of the validity of his title or on the question of his expulsion, as the 
single personal act of bribery or other corrupt use of money by the sitting member 
as stated, to procure his election, would be sufficient in the opinion of some of us to 

S. Doc. 11-45 



706 


SENATE ELECTION CASES. 


invalidate the title he claims to have acquired, and would justify his expulsion from 
the Senate. 

Your committee are also of the opinion that, if the evidence fails to show that the 
sitting member was guilty of the bribery of any member of the caucus or the legis¬ 
lature, or had any personal knowledge or agency in the bribery, or the corrupt use 
of money to secure his election, then the Senate must be satisfied by legal evidence 
that a sufficient number of the members of the legislature were bribed by the friends 
of the sitting member to secure the votes of enough members of the legislature to 
insure his election, and that without the votes thus corruptly obtained the sitting 
member would not have been declared elected. 

It is conceded that the Democrats had a majority in the sixty-sixth general assem¬ 
bly of Ohio of thirty-six members, and that Henry B. Payne was the only Democrat 
voted for by the members of the legislature when he was elected to the Senate. 

The charge was preferred against Henry B. Payne by the senate and house acting 
separately in the sixty-seventh legislature of Ohio, which was a different legislature 
from that which elected Henry B. Payne, and was composed at the time the charges 
were made of a majority of Republicans in each house. 

It is also conceded that prior to the day when the law required the sixty-sixth 
general assembly of Ohio to vote for the election of a United States Senator a caucus 
of the Democratic members of the legislature was held to nominate some person for 
whom the Democratic members were to vote in the general assembly, and that in 
such caucus Henry B. Payne received 46 votes, Durbin Ward received 17, and George 
H. Pendleton received 15 votes; and that, Mr. Payne having received over a majority 
of the 79 Democrats in the caucus, he was declared nominated. The charge is that 
money was corruptly used by being paid to or for the use of divers members of the 
caucus to secure their votes, in the caucus , for Mr. Payne’s nomination. 

When your committee met to consider the matter referred to them, the first act of 
the committee was to comply fully with the first request of the Ohio house, and that 
was to make an examination of all the testimony taken by the select committee of 
the Ohio house of representatives under its resolution No. 28, the report of that select 
committee being all that was then before your committee. After several days’ exam¬ 
ination of the testimony the chairman of your committee, at our next meeting, made 
his report as copied in the minority report, which is, in effect that after careful 
reading of the testimony contained in Mis. Doc. No. 106, no evidence, opinion, or 
statement whatever was found personally inculpating Henry B. Payne in anyway in 
any bribery or the corrupt use of money in his election to the Senate. Neither did 
such examination show that enough had been found in the testimony to justify the 
charge that the election of Mr. Payne was procured by the corrupt use of money, or 
that there was anything in the testimony taken under the Ohio house resolution No. 
28 to justify your committee in reporting in favor of a further investigation by the 
Senate. On the contrary, it was agreed that the testimony was insufficient to sup¬ 
port the charge, and insufficient to justify the committee in reporting to the Senate 
that the title of Senator Payne to his seat ought to be investigated. This action met 
the entire demand first made by the Ohio house of representatives. About the time 
that your committee considered its labors terminated the supplemental resolutions 
of the two houses of the Ohio legislature and of the Republican State central com¬ 
mittee made their appearance in the Senate and were referred to your committee, 
and soon after this last reference a request was made by the Hon. Mr. Little, an able 
and distinguished lawyer and representative of Ohio in Congress, that he be per¬ 
mitted to appear in person before your committee in behalf of the State Republican 
central committee to make known to your committee by argument and evidence 
that the title of Senator Payne to his seat in the Senate ought to be investigated. 
Permission was granted and full time allowed for the hearing of Mr. Little. Then 
came another request, from the Hon. Mr. Butterworth, another able and distinguished 
lawyer and representative from Ohio in Congress, that he be permitted to appear 
before your committee for the same purpose, which was granted, and full time given 
for the hearing of Mr. Butterworth. These distinguished Representatives explored 
all the sources of information that promised any supply of fact, argument, or specu¬ 
lation, whether the evidence was legal or mere rumor or hearsay, found in the report 
of the special committee or elsewhere, to convince your committee that another inves¬ 
tigation of the right of Senator Payne to his seat should be authorized by the Sen¬ 
ate. 

The able and plausible arguments of Mr. Little and Mr. Butterworth were founded 
confessedly and almost entirely upon the evidence taken by the select committee of 
the Ohio house of representatives, which had been pronounced by the select com¬ 
mittee itself as wholly insufficient to establish in the least degree" any charge that 
had been made against the four members of the Ohio house named by the corre¬ 
spondent of the Cincinnati Commercial-Gazette, and which your committee had also 
decided was insufficient to support the charges preferred by the two houses of the 
Ohio legislature on that testimony, notwithstanding the confident opinion expressed 


HENRY B. PAYNE. 


707 


in their supplemental resolution that the testimony taken by their select committee 
was ample” to establish the charge as to how Senator Payne’s election was pro¬ 
cured. 

A majority of your committee report that the testimony taken by the select com¬ 
mittee under resolution No. 28 was not supplemented or strengthened by any ad¬ 
ditional legal evidence, and no new information, not contained in Mis. Doc. No. 106, 
was brought to the attention of your committee that any court would not hold to be 
merely cumulative and speculative and of like character with that taken by the 
select committee of the Ohio house, and insufficient by itself, or in connection with 
the other testimony, and all treated as true, just as it might be shown to be if another 
investigation were ordered by the Senate, to justify your committee in reporting in 
tavor ot directing a trial by the Senate of the right of Mr. Payne to his seat. 

\our committee, having made a protracted and exhaustive examination of the mat¬ 
ters referred to them, report: 

First. That Henry B. Payne has not been charged with having anything to do 
personally, or with having any personal knowledge of, connection with, or partici¬ 
pation in, any act, or anything that may have been done, or charged as having been 
done, that was wrong, criminal, immoral, or reprehensible in his election; that no 
member ol your committee, and no witness, Representative, or other person, has 
expressed the opinion or intimated any belief or suspicion that Henry B. Payne is or 
was connected in the remotest degree, by act or knowledge, with anything that was 
or may have been wrong, or criminal, or immoral in his election. 

Second. A majority of your committee report that on the whole case as presented 
to them they recommend that the Senate make no further investigation of the charge 
involving the right of Henry B. Payne to his seat. 

Your committee ask to be discharged from further consideration of the matters 
referred to them, and that the whole subject be indefinitely postposed. 

JAMES L. PUGH. 

ELI SAULSBURY. 

Z. B. YANCE. 

J. B. EUSTIS. 

VIEWS OF MR. TELLER, MR. EVART8, AND MR. LOGAN. 

Upon undisputed facts it appears that of the general assembly of Ohio, as in ses¬ 
sion and constituted in January, 1884, each house contained a majority of members 
of the Democratie party; that at a joint caucus of that party held on Tuesday, Jan¬ 
uary 8, upon the first ballot, votes were cast—for Mr. Booth, 1 vote; for Mr. Pendle¬ 
ton, 15 votes; for Mr. Ward, 17 votes; and for Mr. Payne, 46 votes; thus showing 
a majority in the caucus of 13 for Mr. Payne over the united vote of all the other 
candidates. In regular conduct of the election of Senator by the legislature Mr. 
Payne was elected, and his credentials were received by the Senate of the United 
States at the session of March, 1885, and Mr. Payne since then has held, and now 
holds, a seat as Senator from Ohio in this body. No action was taken by or before 
the legislature which elected Mr. Payne calling in question the validity of his elec¬ 
tion or the conduct of the same in the canvass, the caucus, or the legislature itself. 

A new legislature, as in session and constituted in January in the present year, 
showed a majority of the general assembly of the Republican party, and on the 13th 
day of January the house of representatives adopted the following resolution: 

“Whereas the Cincinnati Commercial-Gazette of January 12,1886, contains a printed 
statement, on the authority of S. K. Donavin, alleging grave charges against the 
official integrity and characters of members of this house, namely, Hon. D. Baker, 
Hon. P. Hunt, Hon. W. A. Schultz, and Hon. Mr. Zeigler, so definite and precise in 
statements as to call for immediate action in order to vindicate the reputation of 
members of this house: Therefore, 

“Resolved, That a select comrnittee of five be appointed to inquire into all the facts 
of the charges so alleged, and report their conclusions to this house at as early a date 
as possible; and in the prosecution of this inquiry said select committee are empow¬ 
ered to send for persons and papers and to examine witnesses under oath.” 

The select committee commenced the taking of testimony under this inquiry on 
the 20th January, and concluded the same on the 6th April last. Two reports were 
made to the house, one presented by a majority of three, and the other by the minor¬ 
ity of two. On April 16 the house adopted the following resolution: 

“Resolved by the house of representatives of the sixty-seventh general assembly of the 
State of Ohio, That the clerk of the house be, and he is hereby, directed to transmit 
a copy, duly authenticated, of the testimony taken by the select committee appointed 
in pursuance of house resolution No. 28, and the report of said committee, to the 
President of the United States Senate, to be by him presented to that body.” 


708 


SENATE ELECTION CASES. 


The President pro tempore of the Senate laid before the Senate the testimony and 
reports, and the same were referred to the Committee on Privileges and Elections. 

The majority report of the committee of the Ohio house presented as their “ con¬ 
clusion ” the following statement: 

“Although, as stated in the outset, the testimony developed nothing of an incul¬ 
pating character concerning the members of this house named in the resolution of 
inquiry, we believe that circumstances surrounding the election of Henry B. Payne 
as one of the Senators to represent the State of Ohio in the Congress of the United 
States, as presented by the testimony, are such as to warrant us in recommending 
that an authenticated copy of the testimony and report be transmitted to the Presi¬ 
dent of the United States Senate for the information of the body of which Senator 
Payne is a member, and for such action as it may deem advisable.” 

The minority report presented as their conclusion the following statement: 

“The minority of your committee, therefore, find, in conclusion, that there has • 
been no testimony going to show that any unusual or improper methods were resorted 
to by any person with any member of the Sixty-sixtli general assembly to induce 
them to support, or that any member was unduly influenced to support, Hon. Henry 
B. Payne for either his nomination or election to the United States Senate.” 

It appears that when the select committee of the Ohio house of representatives 
was entering upon the inquiry before them the following correspondence took place 
between Mr. Payne and Mr. Cowgill, the chairman of the select committee, and that 
Mr. Payne was never advised by the committee that “ any testimony tending to 
inculpate him in any degree with any questionable transaction” had been received, 
or any opportunity was afforded him of appearing before the committee: 

“ United States Senate, 
Washington, D. C., January 22, 1SS6. 

“non. Thomas A. Cowgill, 

“ Chairman, Columbus, Ohio : 

“ Sir: As one branch of the general assembly has appointed a special committee, 
of which you are the chairman, to investigate the conduct of the Democratic caucus 
which in January, 1884, nominated a candidate for United States Senator, and as the 
matter is thus raised to the plane of respectability and placed in charge of intelli¬ 
gent and honorable gentlemen, I propose to give it appropriate attention. For 
myself, I invite and challenge the most thorough and rigid scrutiny. My private 
correspondence and books of account will be cheerfully submitted to your inspection 
if you desire it. I only insist, in case any testimony is given which in the slightest 
degree inculpates me, I may be afforded an opportunity of appcaring before the com¬ 
mittee. 

“ I am, very respectfully, your obedient servant, 

“ H. B. PAYNE.” 


“ Columbus, Ohio, January 25,1SS6. 

“ Hon. H. B. Payne, 

“United States Senate, Washington, D. C.: 

“Sir: I acknowledge the receipt of your favor of the 22d instant, wherein you 
note the fact that a special committee of the Ohio house of representatives has been 
appointed to investigate the conduct of the Democratic caucus which in January, 
1884, nominated a candidate for United States Senator, and you also declare that you 
propose to give the investigation appropriate attention. 

“ In reply, I have to say that the resolution to which you refer recites the fact that 
allegations of bribery, published on authority of S. K. Donavin, are of so grave and 
positive character as to call for immediate action in order to vindicate the reputation 
of members of the present general assembly. It directs the special committee to 
1 inquire into all the facts of the alleged bribery, and report their conclusions thereon 
to the house.’ 


“ If in the prosecution of this inquiry any testimony tending to inculpate you in 
any degree with any questionable transaction be received, I assure you that your 
request to appear before the committee in such event will be most cordially and fully 
acceded to. 

“ Very respectfully, 

“THOMAS A. COWGILL, 

Chairman, 


Instead of attempting a selection or summary of the testimony transmitted to the 
Senate by the Ohio house of representatives, for the illustration or support of our 
views and conclusions as to the proper disposition of the matter referred to the Com¬ 
mittee on Privileges and Elections, we have thought it eminently just to accept as 



HENRY B. PAYNE. 


709 


the basis of our observations the two careful and intelligent presentations of the 
testimony to the Ohio house of representatives by the majority and minority reports 
of the select committee. 

^ our committee were addressed by two honorable members of the house of repre¬ 
sentatives troin Ohio, Mr. Little and Mr. Butterwortli, in exposition and enforcement 
ot the testimony and of the just rules and principles which should govern your 
committee in their disposition of the matter before them. Subsequently, and while 
the committee was deliberating upon the case as submitted to them, those honorable 
gentlemen placed before your committee certain suggestions in the nature of corrob¬ 
orative or cumulative evidence, which we append, with the majority and minority 
reports to which we have referred, to accompany our report. These supplementary 
suggestions we have justly given this prominence to, as indicating in nature, if not 
in substance, what might be shown in testimony if an investigation should be entered 
upon by the Senate. 

The only constitutional rights, powers, and duties which can sustain, or properly 
induce, an investigation such as is presented for the consideration of the Senate by 
the honorable house of representatives of the State of Ohio, arise from two separate 
and independent clauses of the Constitution: 

By the iirst clause of section 5 of Article I of the Constitution, each House of 
Congress is made “the judge of the elections, returns and qualifications of its own 
members.” 

By the second clause of the same section each House may, “with the concurrence 
of two-thirds, expel a member.” 

As these two ends alone limit the basis.and object of any investigation proposed, 
either for invalidating the election of a Senator or expelling from the Senate a duly 
elected and qualified member of it, a scrutiny of the grounds, in fact, upon which 
such action is demanded, in any case arising, from the Senate, requires an ascertain¬ 
ment whether the scope of the proposition and the testimony presented, or reasona¬ 
bly assured, would justify the ultimate action of the Senate under one or the other 
of these clauses of the Constitution. We do not understand that the house of repre¬ 
sentatives of Ohio presents any case upon the testimony taken or imagined to be 
accessible to any investigation by the Senate, or upon any allegation of the existence 
of facts suspected, though not probable, as would affect Mr. Payne with such per¬ 
sonal delinquency or turpitude as would invite or tolerate his expulsion from the 
Senate for his participation in the transaction which resulted in his election. 
The examination of the testimony suggests no support- for such an imputation/ 
and the course of the select committee in not giving Mr. Payne an opportunity 
to be heard before them precludes any intimation that such a notion was enter¬ 
tained for a moment by that committee or the Ohio house of representatives. 

We do hot understand that any member of the Committee on Privileges and Elec¬ 
tions has harbored or expressed the idea that the testimony taken, or suggested as 
accessible or possible, touches the subject of this personal inculpation of Mr. Payne. 
We shall, therefore, confine our further discussion of the matter, as presented for 
the investigation or action of the Senate, to the question arising upon the validity 
of Mr. Payne's election, and the declaration of his seat in the Senate vacant for such 
cause. 

It is, no doubt, supposable that an election may bo vitiated by fraud, corruption, 
and bribery without the member unseated being accused even of personal participa¬ 
tion in the fraud, corruption, or bribery by which his election was compassed. ‘If 
the election is thus vitiated, the member’s seat cannot be saved by his personal 
exculpation and vindication. The integrity of the election, and not of the member, 
is in question under this clause of the Constitution. 

But, on the same reason, the investigation, which now deals with the election as 
vitiated, and not the member as innocent, must reach the proof that the fraud, cor¬ 
ruption, or bribery embraces enough in number of the voting electors to have changed, 
by these methods, the result of the election. If these corrupted votes gave the inno¬ 
cent member his seat, the deprivation of these corrupted votes vacates his seat, how¬ 
ever innocent he is. But, if the uneorrupted votes were adequate to his election, 
and he is purged from complicity in the fraud, corruption, or bribery, his seat is not 
exposed to any question of validity in the election. 

Upon a reference to the testimony presented by the Ohio house of representatives, 
and sifted and emphasized by the select committee’s majority and minority repoi ts, 
we are able to ascertain the number of members of the general assembly of Ohio that 
have been brought into inculpation, the degree and weight of evidence aff ecting each 
of them, and the conclusions of these two committees as to what had been proved, or 
could be expected to be proved, as bearing upon each of these members. 

As to four members, viz, Messrs. Baker, Hunt, Schultz, and Ziegler, being the mem¬ 
bers of the house of representatives of 1^86 upon charges against whom the general 
investigations were set on foot, we find the committee, by the majority report, declare 
that “the testimony developed nothing of an inculpating character concerning the 


710 


SENATE ELECTION CASES 


members of this house named in the resolution of inquiry.” The minority report 
express their conclusions to the same effect, as follows: 

“That there has been absolutely nothing found in any way compromising the four 
members charged, and they are wholly exonerated from the charges made, and stand 
to-day without the shadow of a suspicion attaching to them in regard to conduct 
unbecoming members of this house.” 

As to two members of the house, viz, Mr. Kahle and Mr. Hull, the majority report 
names them as “two instances in which attempted bribery in the Senatorial canvass 
was reported by members of the sixty-sixth general assembly,” and sets forth, as the 
report expresses it, “the testimony taken as to what those members reported ” “in 
brief.” Both Mr. Kahle and Mr. Hull were active and earnest supporters of Mr. Pen¬ 
dleton in the canvass, and so continued to the end, voting for Mr. Pendleton in the 
caucus and in the legislature. The evidence respecting these two members, as given 
or commented upon by the majority and minority reports, we refer to, conformably 
to our declared purpose, without attempting any observations of our own upon the 
testimony. For the immediate consideration now presented, it is sufficient to say 
that no diversion from Mr. Pendleton’s support to Mr. Payne’s was effected as to these 
two electors. 

The select committee names in the majority report two senators and two represent¬ 
atives, and speaks of them as follows: 

“Rumors as to suspected bribery with which were connected the names of Messrs. 
Mooney and Roche, members of the house, and Messrs. White and Ramey, members 
of the senate, of the sixty-sixth general assembly, all of whom voted in caucus for 
Henry B. Payne for United States Senator, were traced by the committee until devel¬ 
opments, which were regarded as important, were reached, as follows”— 
giving the testimony bearing upon each, as viewed by the majority of the commit¬ 
tee. The minority report takes up the case of each of these members, and comments 
upon the evidence which it adduces from the testimony, and declares as to each of 
them that the testimony justifies no imputation upon any one of them. We again, 
without any observations of our own on the evidence, refer to the majority and 
minority reports on this topic. 

It is proper that we should call the attention of the Senate to the very explicit, and 
candid statement of the majority report as to the reach and scope which were given 
to the investigation, and of the distinction drawn between the testimony at large and 
. the report itself, as the latter containing “no facts” “which are not sustained by 
testimony upon which a legislative body might base further action.” This report 
says: 

“Whenever our attention was called to anything which indicated the probable 
employment of improper means to gain support, we followed the clews presented, on 
the theory that we were not only authorized, but in duty bound, to pursue any mat¬ 
ter that promised, even remotely, to show the use of such means in connection with 
the election, because the discovery of one important fact, although having no imme¬ 
diate bearing upon the charge against the persons named in the resolution, might 
lead to the discovery of facts having such bearing. And furthermore, and upon the 
same theory, our inquiries were not confined to the technical rules of legal proof, 
but the committee availed itself of any source of information—admitted hearsay state¬ 
ments, and even the opinions of witnesses. But we consider that in making this 
report no facts should be stated which are not sustained by testimony upon which a 
legislative body might base further action.” 

The minority report thus speaks of the completeness of the investigation instituted 
by the committee: 

‘’’Your committee, in its anxiety that nothing, however trivial and remote, that 
might have, either directly or indirectly, any possible bearing on the matter under 
consideration, have exercised the greatest liberality possible in the taking of testi¬ 
mony, which has extended the scope of its inquiry far beyond the limits that could 
ba given the most liberal construction of the resolution.” 

As the result of this wide investigation it does not appear that the select commit¬ 
tee recommended any action by the legislature looking to a further investigation, or 
to the incrimination or punishment in the courts of law of any persons named in the 
report, nor that the legislature itself has proposed any action in such directions, or 
either of them. Indeed, the whole recommendation of the committee to the house 
of representatives is in these words: 

“That an authenticated copy of the testimony and report be transmitted to the 
President of the United States Senate for the information of the body of which Sena¬ 
tor Payne is a member, and for such action as it may deem advisable.” 

In pursuance of this recommendation the house of representativs communicated to 
the senate the testimony taken and the reports of the committee, which are before 
the Committee on Privileges and Elections. The only action taken by either house 
of the general assembly of Ohio since, that has been brought to the attention of the 


HENRY B. PAYNE. 


711 


Senate or of its committee, is shown in a resolution of the senate of Ohio and one of 
the house of representatives, as follows: 

n “ Senatorial election in Ohio. 

“ [Senate resolution—Mr. Hardacre—No. 58.] 

“ Whereas by common report, suggested and corroborated by the public press of the 
State without respect to party, and by a recent investigation of the house of repre¬ 
sentatives, the title of Henry B. Payne to a seat in the United States Senate is viti¬ 
ated by corrupt practices and the corrupt use of money in procuring his election; and 

“ M hereas it is deemed expedient, in order to secure a thorough investigation of his 
said election as Senator by the United States Senate, that the belief of the general 
assembly in this regard be formulated in a specific charge: Therefore, be it 

“ Resolved, That in the opinion of the general assembly, and it so charges, the elec¬ 
tion of Henry B. Payne as Senator of the United States from Ohio, in January, 1884, 
was procured and brought about by the corrupt use of money, paid to or for the 
bonefit of divers and sundry members of the sixty-sixth general assemby of Ohio, 
and by other corrupt means and practices, a more particular statement of which 
can not now be given. 

u Resolved, That the Senate of the United States be, and the same is hereby, 
requested to make a full investigation into the facts of such election so far as per¬ 
tains to corrupt means used in that behalf. 

“ Resolved , That the governor be, and is hereby, requested to forward a copy thereof 
to the President of the Senate of the United States. 

“I hereby certify that the foregoing is a true and corrupt copy of said resolution, 
as the same appears open the senate journal of Friday, May 14, 1886, after being 
changed from a “joint” to a “senate” resolution, and adopted by the senate. 

“C. N. V ALLAN DIG HAM, 

“ Cleric Ohio Senate 


“ [H. R. No. 89.—Mr. Bramback.] 

“ Whereas it is the precedent in the United States Senate that charges of bribery 
must be directly made to warrant a committee of said body in proceeding to inves¬ 
tigate the title of any United States Senator to his seat: Therefore, 

“Be it resolved by the house of representatives of Ohio , That in the investigation 
made under house resolution No. 28, ample testimony was adduced to warrant the 
belief that the charges heretofore made by the Democratic press of Ohio are true, 
to wit: That the seat of Henry B. Payne in the United States Senate was pur¬ 
chased by the corrupt use of money; and 

“Further resolved, That the honor of Ohio demands, and this house of representa¬ 
tives requests, that the said title of Henry B. Payne to a seat in the United States 
Senate be rigidly investigated by said Senate; and 

“Further resolved, That the governor of Ohio be requested to forward a copy of 
this resolution to the President of the United States Senate. 

“In House of Representatives. 

“Adopted May 18, 1886. 

“Attest: 

“DAVID LANNING, 

“ Clerk.” 

Upon the whole matter as presented, in evidence and argument, to the Committee 
on Privileges and Elections, we are of opinion that there is no evidence which pur¬ 
ports to prove that fraud, corruption, or bribery was employed in the election of Mr. 
Payne afi'eetiug the votes, given either in the caucus or in the legislature, whereby 
the election was carried by corrupt votes to the efiect of his election. Nor, in our 
opinion, is there any allegation that proof exists or would be forthcoming to the 
extent that would vitiate the election of Mr. Payne by reason of the necessary votes, 
in caucus or in the legislature, for his election, having been obtained by fraud, cor¬ 
ruption, or bribery. . 

We are of opinion, therefore, that under the first clause of the fifth section of Article 
I of the Constitution the testimony and other considerations placed before the Sen¬ 
ate do not warrant the Senate in instituting by itself an investigation looking to the 
unseating of Mr. Payne as a member of the Senate. 

We have, in our conclusions, made no distinction between the use of fraud, cor¬ 
ruption, or bribery in a caucus vote or in the legislative vote, for a Senator. 
Although a caucus,'or what proceeds in it, has no constitutional or legal relation to 
the election of a Senator, yet. by the habit of political parties, the stage of deter¬ 
mination as to who is to be elected Senator, and the influences, proper or iuinioper, 


712 


SENATE ELECTION CASES. 


that produce that determination, is that which precedes and is concluded in the 
caucus. So far as the question of personal delinquency or turpitude is concerned, 
no moral distinction should he taken between corrupt proceedings in caucus and 
those in the legislature. How far any such distinction would need to be insisted 
upon in any case, on the question of unseating a Senator, where he himself was 
not affected with any personal misconduct, or complicity with the misconduct of 
others, we have no occasion, in the immediate case or attitude of the subject, to 
consider or suggest. 

At the outset of our observations we stated the limits which properly should con¬ 
trol the action of the Senate under the applicable clauses of the Constitution, and 
by the same reason the ends which should be proposed in its investigations and to 
which they should be confined. It is obvious that the province and duty of a State 
in its investigations of fraud, corruption, and bribery in an election of Senator are 
much more extensive. A State is not confined at all to the question whether the 
actual election brought in question involves the Senator personally in misconduct, 
or whether enough votes for him were effected by fraud, corruption, or bribery 
that would require his seat to be vacated, although himself free from imputation. 

The State should execute its laws respecting the purity of Senatorial elections by 
the indictment and conviction of a single person who bribes or is bribed, whether the 
election is affected or not. The State should investigate as well to the end of better 
laws and surer execution of the laws. The State, too, is charged with the mainte¬ 
nance of “the honor of Ohio,” and its vindication rests with its own legislation, its 
own judiciary, and its own people; but it can not demand this vindication at the 
hands of the United States Senate, except as that may flow from investigations by 
that body within the limits of its constitutional powers and duties. 

That State has conducted and concluded its investigations into the election of Mr. 

. Payne, and has placed the result before the Senate of the United States. It has 
attempted no further investigations either by the plenary power of its legisture or 
through the functions of the courts of law. If, upon further examinations made 
by the State, through its legislature or its courts, a case should be presented for 
renewed consideration by the Senate, within th6 rules and principles we have stated 
as governing the action of the Senate, the further action of the Senate will be gov¬ 
erned by what may then appear. As the whole matter now stands before the com¬ 
mittee, we concur in its judgment that an investigation should not be instituted by 
the Senate, and the committee be discharged from the further consideration of the 
subject, and for the reasons which we have thus given. 

H. M. TELLER. 
WM. M. EVARTS. 

JOHN A. LOGAN. 

[The report of the select committee appointed by the house of representatives of 
the sixty-seventh general assembly of Ohio to investigate the charges of bribery in 
connection with the election of Mr. Payne and the views of the minority of that 
committee, together with a letter from Senator Thurman and the letter of Messrs. 
Little and Butterworth offering evidence, which follow in the report, are omitted. 
These documents may be found in Senate Reports, 1st sess., 49th Cong., vol. 11, No. 
1490, pp. 16-o2. The letter of Messrs. Little and Butterworth is printed below, 
p. 619.] 


VIEWS OF MU. TIOAR AND MR. FRYE. 

The undersigned cannot concur with the report of the majority. 

The senate and house of representatives of the State of Ohio, and the Republican 
State committee, representing the political party which for much the larger portion 
of the last thirty years has contained a majority of the voters of that State, have 
each addressed a memorial to the Senate charging that the election of the sitting 
member was procured by bribery and corruption, and praying the Senate to cause an 
investigation into said charges. Two gentlemen of high character and position, 
Messrs. Little and Butterworth, both now members of the other House from the 
State of Ohio, the former lately attorney-general of that State, appeared before the 
committee, declared their personal belief in the truth of the charge, asserted that in 
their opinion the belief is entertained by a large majority of the people of Ohio of 
both political parties, and asked to be permitted to lay before the committee evi¬ 
dence to support it. Besides Messrs. Little and Rutterworth eight of the Ohio dele¬ 
gation in the House add their earnest request to the same effect, affirm that the 
investigation is demanded by a large majority in number and influence of the press 
of the State, say that additional testimony is in the possession of Messrs. Little and 
Butterworth, and express their belief that “ if opportunity is offered, the charges of 
the Ohio senate will be sustained by testimony to your full satisfaction.” 


HENRY B. PAYNE. 


713 


Before the memorials above referred to were presented, there had been presented 
to the Senate ior its inlormation the evidence taken by a committee of the house of 
representatives ot Ohio, who were directed to investigate charges of corruption in 
said election against tour members of the present house of representatives of Ohio, 
being the only members of the legislature who made the election against whom alle¬ 
gations ot bribery were made who have been continued in the public service, and 
the conclusions ot the committee upon said evidence. Messrs. Little and Butterworth 
aiM> produced certain .affidavits and letters stating confessions of persons implicated, 
and pointing out other sources where evidence would probably be obtained if law¬ 
ful authority should be given by the Senate to procure it. 

e think this presents a case where it is the duty of the Senate to permit the pe- 
titioners to present their evidence and to authorize the issue of proper process to 
aid them m procuring the attendance of witnesses. 

1 he Constitution declares that “each house shall be the judge of the elections, 
returns and qualifications of its own members.” The Senate is the only court 
which has, or under the Constitution possibly can have, jurisdiction of this question. 
There can be no trial, inquiry, or adjudication anywhere else to which this inquiry is 
not totally foreign and immaterial.” The courts in Ohio may exercise jurisdiction 
ol the offense ot bribery of or by an individual. But the question whether the re¬ 
sult of an election of Senator was thereby changed can never be before those courts. 
Either house of the legislature may inquire as to the personal turpitude of its own 
members. But the action which may result from such investigation must be pre¬ 
cisely the same, whether other persons also were or were not corrupted, and whether 
the choice of Senator were or were not affected. 

As the Senate is the only court that can properly try this question, so the change is 
made, ii not in the only way it can be made, yet certainly in the way beyond all others 
in which it can be made with most authority. The legislature of Ohio is the represent¬ 
ative of the dignity, interest, and honor of the State. It appoints the Senators of 
the United States, and if a vacancy in the office exist, it must fill it. It is supported 
in this charge by the committee who are, under our political customs, the organ of 
more than half the voters of the State concerned. 

For the Senate to refuse to listen to this complaint, so made, would, it seems to us, 
be, and be everywhere taken to be, a declaration that it is indifferent to the question 
whether its seats are to be in the future the subject of bargain and sale, or may be 
presented by a few millionaires as a compliment to a friend. No more fatal blow 
can be struck at the Senate or at the purity and permanence of republican govern¬ 
ment itself than the establishment of this precedent. 

But the case does not rest alone upon the charge and character of the parties who 
make it, and w ho ask to be permitted to produce evidence in its support. If it did, 
it, in our judgment, would be enough. It is surely a strange answ r er to be given by 
a court to a suitor to say that it has already considered the question and decided 
the case before it is presented. 

But the petitioners adduce strong reasons to show probable cause that they can 
establish their case. The testimony taken by the committee in Ohio has been referred 
to us. Our attention has also been called to evidence pointing to a large mass of 
additional testimony. The committee of the Ohio house has power only to inquire 
into the conduct of four members of that body. They report that— 

“A number of clews furnished were not followed, because we were convinced that 
they could lead only to points at which further pursuit would become necessary, but 
which could not be passed without authority to reach beyond the limits of the State 
for witnesses, and much anonymous information was ignored by the committee chiefly 
for the same reason.” 

We have examined the evidence taken by that committee. It does not support the 
charges as to the four members implicated; it does not connect Mr. Payne with the 
transactions; it does not show that the result was changed or effected by corrupt 
means. But it does sliow r that Mr. Payne’s name was not publicly suggested as a 
candidate for Senator until after the State election; that it was not very prominently 
suggested until shortly before his election in January; that many persons who had 
been supposed to favor Pendleton voted for Payne; that there was a widespread be¬ 
lief that corrupt means were used to procure the result; that one member was offered 
a large sum of money by another member to vote for Payne; that there w r ere hear¬ 
say statements charging corruption as to several others; that two members of the 
legislature received large sums of money about the time of the election, of which 
they, being called as witnesses, gave no satisfactory account; that the prominent man¬ 
agers of Mr. Payne’s canvass, viz, Paige, McLean, Huntington, and Oliver H. Payne, 
did not testify before the committee. There was no evidence tending to show the 
bribery of any particular member, except as above stated. 

When we say it was not shown that the result was changed or effected by corrupt 
means, we are speaking of direct testimony. But the consideration should not be 
forgotten that where persons familiar with the whole case would be quite sure to 


714 


SENATE ELECTION CASES. 


know whether such means were needful to change the result, or whether their can¬ 
didates would be elected without it, if they are found expending largo sums of money 
corruptly- the fact alone affords strong reason for the inference that the result was 
thereby controlled. But the result of the investigation in Ohio seems to the under¬ 
signed absolutely unimportant. That committee, while they took a wider range of 
inquiry than the matter committed to them, neither had, nor conceived they had, 
any power to inquire into Mr. Payne’s title to his seat. They issued no process ex¬ 
tending beyond the limits of Ohio. They report no conclusion, except as to the four 
members. When witnesses refused to answer, they did not press them. They w r ent 
beyond the scope of the resolution appointing them only, as they say, “ to gain some¬ 
thing like a comprehensive view of the situation.” 

The Ohio senate of 1883-’84 contained 33 members. Of these 22 were Democrats 
and 11 Republicans. The house contained 105 members, of which 60 were Demo¬ 
crats and 45 Republicans. The members entitled to vote on joint ballot were 138 in 
all, 82 Democrats and 56 Republicans. Eighty-two persons were entitled to vote in 
the Democratic caucus, of whom 42 were a majority. Seventy-nine persons actually 
attended that caucus, of which 40 were a majority. Is there fair reason for institut¬ 
ing an inquiry whether the result of the election was procured by bribery? VVe 
think that the character of the persons making the charge is of itself sufficient to 
require the Senate to listen to it. But they produce a great body of evidence all 
pointing in the same direction. 

We are not now to consider whether the case is proved, or even whether there be 
a prima facie case. There has as yet been no evidence laid before us addressed to 
either oi these considerations. That can not be done without the issue of process 
for the attendance of witnesses. Messrs. Little and Butterworth now offer, on their 
personal responsibility, to establish to the satisfaction of the Senate, largely by wit¬ 
nesses who were not within the reach of the Ohio committee, and partly by evi¬ 
dence which strengthens, supplements, and confirms that which was before that 
committee, the following among other propositions: 

First. That of the Democratic members elected to the sixty-sixth general assem¬ 
bly more than three-fourths were positively pledged to Mr. Pendleton and General 
Ward, and more than a majority pledged to Mr. Pendleton. This they offer to prove 
by Mr. Pendleton himself, by Col. W. A. Taylor, and others. 

Second. That in these pledges these members represented the opinion and desire 
of their constituents. 

Third. That Mr. Payne was nowhere spoken of or known as a candidate during 
the popular election, or until a very short time before the appointment of Senator. 

Fourth. That just before the legislative caucus, where the nomination was made, 
which was one week before the election, large sums of money were placed by Mr. 
Payne’s son and other near friends of his at the control of the active managers of 
his canvass in Columbus. This they allege can be shown by the books of one or 
more banks. 

Fifth. Mr. Payne’s near friends declared that his election has cost very large sums. 

A gentleman whose name is offered to be given will testify that David R. Paige 
declared to him that he had handled $65,000. 

Oliver B. Payne stated to the same person that it had cost him $100,000 to elect 
his father. 

Sixth. That the members of the legislature who changed from Pendleton to Payne 
did so after secret and confidential interviews with the agents who had the disburse¬ 
ment of these moneys. 

Seventh. That members of the legislature who so suddenly changed their attitude 
can be proved to have, at about the time of the change, acquired large sums of 
money, of which they give no satisfactory account. 

Eighth. Respectable Ohio Democrats affirm that just before the caucus the room 
of Mr. Payne’s manager, Paige, “was like a banking house;” that the “evidence of 
large sums of money there was abundant and conclusivethat Paige’s clerk declared 
in the presence of a gentleman of integrity that “ he had never seen so much monev 
handled in his life.” 

Ninth. That the public belief that the choice of Senator was procured by the cor¬ 
rupt use of money prevails almost universally in Ohio among persons of both par¬ 
ties, which finds very general expression in the press. 

Tenth. That there is specific proof leading with great force to the conclusion that 
each of ten members will be shown to have changed their votes corruptly, and 
thereby that the result was changed. 

The Senate has also recently referred to the committee certain resolutions adopted 
by a convention of the Republican editors of Ohio, held at Columbus, July 8, 1886, 
praying the Senate to investigate these charges. The newspaper reports of the con¬ 
vention show that the governor of the State was present at the convention, and de¬ 
clared his concurrence in said prayer. There have also been communicated to us 
extracts from the Democratic newspapers of Ohio, showing that a majority of those 


HENRY B. PAYNE. 715 

papers have declared their opinion that the election was procnred by corruption. 

Copies ot these extracts are appended. 

\\ hat is the effect upon an election of Senator of bribery of voters in a caucus of 
the legislators who are to make the choice is a question upon which we prefer not 
to form an opinion until the evidence is before us. The members of a caucus ordinarily 
deem themselves bound in honor to vote in the election for the person whom it nom¬ 
inates, by the vote of a majority, on condition that such person belong to their party, 
and is fit tor the office in point of character and ability. Bribery, therefore, which 
changes the result in the caucus, would ordinarily determine the election. 

If B, C, and D have promised to vote as A shall vote, if A be corrupted four votes are 
gained by the process, although B, C, and D be innocent. In looking, therefore, to 
see whether an election by the legislature was procured or effected by bribery, it may 
be very important to discover whether that bribery procured the nomination of a 
caucus whose action a majority of the legislature were bound in honor to support. 
Seventy-nine persons attended the Senatorial caucus and voted on the first ballot. 
Of these Mr. Payne had the votes of 46, Ward 17, Pendleton 15, Booth 1. If 6 only 
of Mr. Payne’s votes in the caucus were procured by bribery, the result of the elec¬ 
tion of Senator was clearly brought about by that means Now, Messrs. Little and 
Butter worth tender specific proof, part of which was before the Ohio committee and 
part here offered for the first time, directly and very strongly tending to create the 
belief as to each of 10 of the members of the Ohio legislature that his vote for Mr. 
Payne was purchased, and that proper process and inquiry will establish the fact by 
competent and sufficient evidence. 

One member, after the caucus, deposited $2,500 in two amounts, and being charged 
that it was the price of his vote, did not persist in a denial. 

Another, who changed to Payne, just before the caucus stated to a colleague that 
he was offered $5,000 to vote for Payne, and intended to accept it, and tried to 
induce his colleague to do the same. That person’s wife just afterwards deposited 
$2,500 in a bank in Toledo, took a certificate therefor, which she transferred to her 
husband. 

Another who is claimed to have changed suddenly from Pendleton to Payne is 
found making, soon after, expenditures amounting to $1,600 with his own money on 
land, the title to which was taken in the name of his father, who paid $2,000 for it 
about the same time. The father and son lived together in the same house. The 
son testified that he did not know where the father got the money to pay the $2,000. 
The father refused to state where he got his $2,000, and said he did not know where 
the sou got the $1,600, and if he did he would not tell. The same member also made 
other large payments of money about the same time. 

Another, who had to borrow money when he went to Columbus, and changed sud¬ 
denly from Pendleton to Payne, was shown just after the election to be in possession 
of money to jmrchase property, refurnish his house, etc. He was denounced by 
another member as having sold his vote. He turned exceedingly sick, made no 
denial, and was taken away. Two others, elected as antimonopolists, became sup¬ 
porters of Mr. Payne and were heard discussing together the amount of money each 
had received. Another, who had before been for another candidate, but voted for 
Mr. Payne, received from Oliver B. Payne $3,500, which he said was a loan. 
Another, according to affidavits produced by Mr. Little, was declared by a fellow 
member to be claiming $3,500 for his vote. Another, who had been very earnest in 
support of Pendleton, visited the room of Mr. Payne’s managers, where the large 
sums of money are alleged to have been seen, and immediately afterwards voted for 
Mr. Payne. 

The committee received this communication from Messrs. Little and Butterworth 
in addition to the statements made by them at the hearing: 

“Hon. George F. Hoar, 

“Chairman of the Committee on Privileges and Elections, United States Senate: 

“Dear Sir: Since our appearance before your committee the last time, we have 
received information, deemed by us important, bearing upon the question of investi¬ 
gation, and desire to indicate its general character. 

“First. We have information, regarded as trustworthy, that a member of the 
sixty-sixth general assembly, one of the sudden converts to Payne, with meager 
means and without financial credit prior to January, 1884, was able to and did 
deposit in bank to his own credit shortly after the election, to wit, February 13, 
1884, $1,350, besides showing other signs of prosperity not accountable for in ordi¬ 
nary ways. 

“Second. We can show by witnesses, whose credibility will not be questioned, 
that just prior to the meeting of the caucus at which Mr. Payne was nominated he 
(witness) was, in the interest of Payne, summoned by telegraph to Columbus. He 
went, and was asked by Payne’s managers what sum of money would be required 
to withdraw the vote of the representative of his (witness’s) county from Pendle- 


716 


SENATE ELECTION CASES. 


ton and give it to Payne. The question was squarely and seriously addressed to 
witness: ‘How much money does he (the representative) want?' 

“Third. We h ave from reliable sources additional information of a convincing 
nature pointing to bribery, consisting of conversation, statements, and admissions of 
implicated members and others, which we are not at liberty to state more explicitly 
in this communication, owing to the conditions under which the information is 
imparted, hut which, with the other matters referred to, we can verbally communi¬ 
cate to you in more particular form if desired. 

“In the line of matter heretofore submitted w r e deem it worth while to give this 
additional instance: 

“Fourth. We quote from a letter in our possession from a reponsible person in 
Ohio, omitting names: 

‘ “ Our representative,-, had been elected as a Pendleton man, and had agreed 

-to support Pendleton. A few days before the caucus it was whispered that 

‘- had been seen,’ and that he would vote for Payne. A telegram was at once 

sent from here to-(the member) by leading Democrats, warning him against 

such a course, and-and others at once went to Columbus and saw the member. 

He hooted at the idea that he would vote for Payne. -assured Pendleton that the 

member would support him.-then came home feeling confident that the mem¬ 

ber would not disappoint him.’” 

“ This member was interviewed in the presence of a friend of Mr. Pendleton, and as¬ 
serted his devotion to him, hut was suspected and watched. As the hour of the 
caucus approached it was noticed that he was not present. The friend of Mr. Pen¬ 
dleton went to his room for him. We quote further: 

1 “ He found him in company with one of the men who handled the ‘ boodle/ and 

he was much embarrassed by-’s presence. But he went to the caucus with 

-, and on the way again asserted his allegiance to Pendleton. If I remember 

correctly,-said they had printed ballots for both candidates, an«l that he gave 

-(the member) a Pendleton ticket. But when the vote was taken,-(Pen¬ 
dleton’s friend) observed that-(the member) wrote something on a piece of 

legal cap and then tore it off. He afterwards discovered that-(the member) 

put in the hat the same piece of paper; and then-(Pendleton’s friend) went to 

-’s (the member’s) desk and tore off a piece of the legal cap large enough to in¬ 
clude the small piece torn oft' by-(the member). I think - (Pendleton’s 

friend) was one of the tellers. At any rate, he got the ballot which fitted the piece 

of legal cap, and which-had voted, and found that Payne’s name was on the 

ballot.”’ 

“This member was thereupon charged by the Democratic county paper of his 
county with betrayal, etc. 

“We do not question that the facts can be shown substantially as indicated with 
repect to the member referred to. 

“Should this information not be used, names and means of identity placed on 
record would or might lead to annoyances for no purpose. They are, therefore, not 
here given. 

“ Your committee, we will venture to add in conclusion, will not overlook the fact 
that our showing, made in the face of a most persistent and powerful opposition, of 
unlimited means and expedients, has been one for an investigation, and not final 
action following an investigation. 

“Very respectfully, 

“JOHN LITTLE, 

“ BENJ. BUTTERWORTH ” 

It is said that much of this is hearsay and that taken together it is insufficient to 
establish a case which will overcome the presumption arising from the certificate of 
election. We are not now dealing with that question. The Senate is to determine 
whether there is probable cause for an inquiry. Any man who lays a claim to any 
property, real or personal, may institute his process at pleasure, and compel the 
courts to hear and try the cause. Even a criminal accusation requires only the 
oath of the accuser, who is justified, if he have probable cause. 

It will not be questioned that in every one of these cases there is abundant prob¬ 
able cause which would justify a complaint and compel a grand jury or magistrate 
to issue process and make an investigation. Is the Senate to deny to the people of 
a great State, speaking through their legislature and their representative citizens, 
the only opportunity for a hearing of this momentous case which can exist under 
the Constitution ? We have not prejudged the case, nor do we mean to prejudge it. 
We sincerely trust that the investigation, which is as much demanded for the honor 
of the sitting member as for that of the Senate or the State of Ohio, may result in 
vindicating his title to his seat and the good name of the legislature that elected 
him. 

But we can not consent to he accomplices in denying justice to either. We do 
not believe the American people will be satisfied that the Senate should refuse to 





















HENRY B. PAYNE. 


717 


hear this case either on the ground that some other tribunal has tried some other 
case, or on the ground that it has already been decided without hearing or evidence, 
or on the ground that a bribe paid for a vote in a legislative caucus is not under¬ 
stood by both parties to include a vote in the legislature for the candidate of that 
caucus. 

How can a question of bribery ever be raised or ever be investigated if the argu¬ 
ments against this investigation prevail? You do not suppose that the men who 
bribe or the men who are bribed will volunteer to furnish evidence against them¬ 
selves? \ou do not expect that impartial and unimpeachable witnesses will be 
present at the transaction. Ordinarily, of course, if a claim like this be brought 
to the attention ol the Senate from a respectable quarter that a title to a seat here 
was obtained by corrupt means the Senator concerned will hasten to demand an 
investigation. But that is wholly within his own discretion, and does not affecttlie 
due mode ot procedure by the Senate. From the nature of the case the process of 
the Senate must compel the persons who conducted the canvass and the persons who 
made the election to appear and disclose what they know; and until that process 
issue you must act upon such information only as is enough to cause inquiry in the 
ordinary affairs of life. 

Ike question now is not whether the case is proved—it is only whether it shall be 
inquired into. That has never yet been done. It can not be done until the Senate 
issues its x>rocess. No unwilling witness has ever yet been compelled to testify; no 
process lias gone out which could cross State lines. The Senate is now to determine, 
as the law of the present case and as the precedent for all future cases, as to the 
great crime ot bribery—a crime which poisons the waters of republican liberty in 
the fountain—that the circumstances which here appear are not enough to demand 
its attention. 

It will hardly be doubted that cases of purchase of seats in the Senate will mul¬ 
tiply rapidly under the decision proposed by the majority of the committee. The 
first great precedent to constitute the rule under this branch of law is to be this: 

Held, by the Senate of the United States, that a charge made by the legislature oi 
a State, and by the committee of the political party to which the larger number of 
its citizens belong, and by ten of its representatives in Congress, that an election of 
Senator was procured by bribery, accompanied by the offer to prove the fact, does 
not deserve the attention of the Senate, and this, although it also appear— 

That there is a general and widespread public belief in the truth of the charge; 
that there was a sudden and unexpected and unaccounted-for change to the sitting 
member from another candidate, to whom a majority of the electing body had 
been previously pledged; that large sums of money were brought to the place of 
election just before the choice by the managers of the canvass for the person elected; 
that there is evidence tending to show the bribery of several members, and the 
acquisition by others, who so changed their support, of considerable sums of money, 
immediately after such change, affect at least 10 members of said legislature; that 
a change by corrupt means of the votes of 6 persons would have changed the result 
in a legislative caucus, and thereby bound and committed the vote in the legisla¬ 
ture of 82 persons, who were a large majority of such legislature; 

Provided it also appear that one branch of a subsequent legislature of the same 
State have, in investigating charges against four of their members, incidentally 
inquired into charges against other persons, so far as they could without compelling 
unwilling witnesses to answer, without use of process extending beyond their State, 
and “ without following out many clews, which they did not follow because they 
were convinced that they would lead only to points of which further pursuit would 
become necessary .” 

We recommend the adoption of the accompanying resolution: 

Resolved, That the Committee on Privileges and Elections, or any subcommittee 
thereof, be authorized to investigate the charges affecting the title to the seat of the 
Hon. Henry B. Payne, and to send for persons and papers, administer oaths, and 
employ a clerk and stenographer, and to sit during the recess of the Senate; and 
that the exjienses of the investigation be paid out of the contingent fund of the 
Senate. 

GEORGE F. HOAR. 

WM. P. FRYE. 

[Appended to the report of Messrs. IToar and Frye were the statements of Messrs. 
Little and Butterwortli before the committee, as well as certain comments of Demo¬ 
cratic newspapers and leading Democrats on this case. They are omitted here, but 
may be found in Senate Reports, 1st sess., 49th Cong., vol. li, Rep. 1490, pp. 40-48.] 

Wednesday, July 21, 1886. 

The President pro iempore laid before the Senate resolutions of the Franklin 
County, Ohio, Republican central committee, praying an investigation into the 
charges in relation to the election of Henry B. Payne to the United States Senate. 

Ordered, That they lie on the table. 


718 


SENATE ELECTION CASES. 


On motion of Mr. Pugh, 

The Senate proceeded to consider the report of the Committee on Privileges and 
Elections on the memorials asking an investigation into the charges affecting the 
election of Henry B. Payne to the Senate. 

[The debate will he found onpp. 7251 to 7272, Cong. Record, 1st. sess., 49th Cong.] 

Thursday, July 22, 1886. 

On motion of Mr. Pugh, 

The Senate resumed the consideration of the report of the Committee on Privileges 
and Elections on the memorials asking an investigation into the charges affecting 
the election of Henry B. Payne to the Senate. 


[For the debate see pp. 7308 to 7329, Cong. Record, 1st sess. 49th Cong.] 

Friday, July 23, 1886. 

On motion of Mr. Pugh, the Senate resumed the consideration of the report of the 
Committee on Privileges and Elections on the memorials asking an investigation 
into the charges affecting the election of Henry B. Payne to the Senate; and the 
question being on agreeing to the resolution submitted by Mr. Hoar as a substitute 
for the recommendations of the committee, viz: 

Resolved, That the Committee on Privileges and Elections, or any subcommittee 
thereof, be authorized to investigate the charges affecting the title to the seat of the 
Hon. Henry B. Payne, and to send for persons and papers, administer oaths, and 
employ a clerk and stenographer, and to sit during the recess of the Senate; and 
that the expenses of the investigation be paid out of the contingent fund of the 
Senate, 

(Yeas 17 

It was determined in the negative, ^ ]^ a y S . 44 

On motion of Mr. Harris, 

The yeas and nays being desired by one-fifth of the Senators present, 

Those who voted in the affirmative are, 

Messrs. Blair, Conger, Dawes, Edmunds, Frye, Hale, Harrison, Hawley, Hoar, 
McMillan, Mahone, Manderson, Mitchell of Oregon, Palmer, Platt, Sherman, Wilson 
of Iowa. 

Those who voted in the negative are, 

Messrs. Beck, Berry, Blackburn, Brown, Butler, Call, Camden, Cameron, Chace, 
Cockrell, Coke, Colquitt, Cullom, Eustis, Evarts, Gibson, Gorman, Gray, Hampton, 
Harris, Hearst, Ingalls, Jones of Arkansas, Jones of Nevada, Kenna, Logan, Maxey, 
Miller, Plumb, Pugh, Ransom, Riddleberger, Saulsbury, Sawyer, Sewell, Stanford, 
Teller, Yance, Van Wyck, Vest, Voorhees, Walthall, Whitthorne, Wilson of Mary¬ 
land. 

So the resolution was not agreed to. On the question to agree to the recommen¬ 
dations of the committee in its report that the Senate make no further investigation 
of the charge involving the right of Henry B. Payne to his seat; that the committee 
be discharged from the further consideration of the matters referred to them; and 
that the whole subject be indefinitely postponed, 

It was determined in the affirmative, j . ^ 

On motion of Mr. Hoar, 

The yeas and nays being desired by one-fifth of the Senators present, 

Those who voted in the affirmative are, 

Messrs. Beck, Berry, Blackburn, Brown, Butler, Call, Camden, Cameron, Chace, 
Cockrell, Coke, Colquitt, Cullom, Eustis, Evarts, Gibson, Gorman, Gray, Hampton. 
Harris, Hearst, Ingalls, Jones of Arkansas, Jones of Nevada, Kenna, Logan, Maxey, 
Miller, Plumb, Pugh, Ransom, Riddleberger, Saulsbury, Sawyer, Sewell, Stanford, 
Teller, Vance, Van Wyck, Vest, Voorhees, Walthall, Whitthorne, Wilson of Mary¬ 
land. 

Those who voted in the negative are. 

Messrs. Blair, Conger, Dawes, Edmunds, Frye, Hale, Harrison, Hawley, Hoar, 
McMillan, Mahone, Manderson, Mitchell of Oregon, Palmer, Platt, Sherman, Wilson 
of Iowa. 

So the recommendations in the report were agreed to, and the subject postponed 
indefinitely. 

[See pp. 7350 to 7361, Cong. Record, 1st sess., 49th Cong.] 






DAVJLD TURPIE. 


719 


[Forty-ninth Congress—second session. Fiftieth Congress—first session.] 

DAVID TURPIE, of Indiana. 


February 10, 1887, the Vice-President presented a memorial of the legislature of Indiana contesting 
the validity of the election of David Turpie as Senator, and on the 16th Mr. Tnrpie’s credentials for 
the term beginning March 3, 1887, were presented. Both papers were referred to the Committee on 
Privileges and Elections, which, on May 14 was discharged from further consideration of them. 
December 5,1887, Mr. Turpie appeared anu was sworn and took his seat in the Senate. On the same day 
Mr. Turpie’s credentials, together with a memorial from a committee appointed by the joint convention 
of the legislature of Indiana and the papers in relation to the matter on the files of the Senate, were 
referred to the Committee on Privileges and Elections. May 14, 1888, the committee reported that 
the remonstrants offered to show that Alonzo Gr. Smith usurped the office of presiding officer of thesenate 
of Indiana, and was supported in the usurpation by the majority of that body; that after this usur¬ 
pation the senate, without debate or hearing, declared two duly-elected members not entitled to their 
seats, and seated in their stead two other persons not duly elected; and that the senate, under this 
presiding officer and with these two members in joint convention with the house, elected Mr. Turpie. 
and the votes of the two members wrongfully seated were necessary for his election. The committee 
held that these facts, if proved, would not justify a declaration that the sitting member was not entitled 
to his seat; that the presiding officer was recognized as such by the senate, and the senate recognized 
as the lawful senate by the house and by the governor, and that these facts required the Senate of the 
United States to consider it the lawful senate so far as concerned its right to take part in the election 
of a United States Senator; that as to the two members seated by the senate so organized, the judg¬ 
ment of the senate of Indiana was conclusive on the Senate of the United States, and that the latter 
body could not inquire into the motive of the former. The comuaittee therefore asked to be discharged 
from the further consideration of the case. May 15 the committee were discharged in accordance with 
their recommendation. 

The history of the case here given consists of a transcript of the proceedings in relation to it from 
the Journal of the Senate, 2d sess., 49th Cong, and 1st sess., 50th Cong., together with the report of the 
committee, Sen. Rep. bio. 1291, 1st sess., 50th Cong. 

[Second session, Forty-ninth Congress.] 

Thursday, February 10, 1887. 

Petitions, memorials, etc., were presented and referred as follows: 

By the President pro tempore: Resolutions of a joint convention of the legislature 
of Indiana, contesting the validity of the election of David Turpie as United States 
Senator from that State—to the Committee on Privileges and Elections and ordered 
to he printed. 

[The resolutions are printed in full on p. 1564, Cong. Record, 2d sess., 49th Cong.] 

Wednesday, February 16, 1887. 

The president pro tempore laid before the Senate a paper purporting to be the 
credentials of David Turpie, certifying to his election as a senator by the legisla¬ 
ture of Indiana for the term of six years commencing March 4, 1887; which was 
read. 

On motion by Mr. Hoar, 

Ordered , That it be referred to the Committee on Privileges and Elections. 

Tuesday, March 1,1887. 

On motion by Mr. Hoar, 

Ordered , That the Committee on Privileges and Elections be discharged from the 
further consideration of the credentials of Francis B. Stockbridge, a paper purport¬ 
ing to be the credentials of David Turpie, and a resolution of the joint convention 
of the legislature of Indiana contesting the validity of the election of David Turpie, 
as United States Senator from that State. 

In response to a question from Mr. Platt as to the effect of the foregoing order, Mr. Hoar made the 
following statement: 

Mr. Hoar. Under the rules of the Senate all papers committed to any committee 
are to be returned to the files of the Senate at the expiration of the Congress, and 
the function of the committee itself expires with the Congress. If the credentials 
of Mr. Turpie had been retained by the Committee on Privileges and Elections with¬ 
out action until noon on the 4th day of March, under the operation of that general 
rule precisely the thing would have happened then that has happened this morning; 
that is, the paper would have gone back to the files of the Senate and the committee 
would have been discharged from its consideration. The only alternative to that 
course would have been an assumption by the committee or by the Senate at the 
present session to deal with the credentials of a gentleman claiming to be a Senator- 


720 


SENATE ELECTION CASES. 


elect before the time had arrived for the beginning of his term, and before he had 
presented himself to be heard upon the subject. 

The Senate is a continuing body which was organized at the beginning of the 
Government in 1789, and that organization is to continue, as we fondly hope, until 
time shall be no more, certainly until the destruction of the American Constitution. 
It is therefore possible that it might be within the constitutional power of the Senate 
to determine in advance the right of a Senator to a seat upon this door, and it would 
be a violation of all constitutional iirecedent, and it would be, in my judgment, a 
violation of the sense of justice and propriety of the Senate and of the American 
people. 

The effect, therefore, of this report is simply to remand to the action of the Senate 
to be taken after the 4th of March without prejudice—without being in the least 
affected by any action now (on) any question which any person may see tit to raise, 
and that is all. No prejudice, for no prejudice against any person who may conceive 
himself entitled to a seat on this door hereafter will arise or lias arisen in conse¬ 
quence of the report of the committee or of the Senate in accepting it. (Congres¬ 
sional Record, second session Forty-ninth Congress, p. 2474.) 

Thursday, March 3,1887. 

Mr. Harrison presented a memorial of the members of the senate and house of 
representatives of the State of Indiana protesting against the alleged election of 
David Turpie as a Senator from that State. 

Ordered, That it lie on the table. 

[First session—Fiftieth Congress.] 

Tuesday, December 6, 1887. 

The credentials of the following-named Senators having been presented to the 
Senate, the oaths prescribed by law were administered to them by the President 
pro tempore , and they took their seats in the Senate: 

* * * * a * « 

Mr. David Turpie, from the State of Indiana. 

****##*• 

Mr. Hoar presented a memorial of the committee appointed by the joint conven¬ 
tion of the general assembly of the State of Indiana in relation to the election of 
Hon. David Turpie as United States Senator from that State; which, together with 
the papers touching said matter on the dies of the Senate, was referred to the Com¬ 
mittee on Privileges and Elections when appointed. 


Monday, May 14,1888. 

Mr. Hoar, from the Committee on Privileges and Elections, to whom were referred 
sundry resolutions, memorials, etc., in relation to the election of Hon. David Turpie 
as United States Senator from the State of Indiana, submitted a report (No. 1291), 
with the recommendation that the committee be discharged from the further consid¬ 
eration of the subject. 


Tuesday, May 15,1888. 

On motion by Mr. Hoar that the Committee on Privileges and Elections be dis¬ 
charged from the further consideration of the several resolutions and memorials con¬ 
cerning the election of Hon. David Turpie as United States Senator, 

After debate, 

It was determined in the affirmative. 

[The debate will be found on pp. 4145 to 4147 Cong. Record, 1st sess. 50th Cong.] 

REPORT OF THE COMMITTEE. 

In the Senate of the United States. 

May 14, 1888.—Ordered to be printed. 

Mr. Hoar, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

The Committee on Privileges and Elections, to whom were referred certain resolu¬ 
tions of the joint convention of the two houses of the State of Indiana concerning 
the election of Hon. David Turpie as United States Senator, and a memorial signed 
by F. Winter and 17 others, members of the legislature of said State, protesting & and 
remonstrating against the admission of Mr. Turpie as a member of the Senate of the 
United States from the State of Indiana, and a communication signed by F. Winter 
and John M. Griffiths in behalf of a committee appointed by the joint convention of 


DAVID TURPIE. 


721 


said assembly of said State for the purpose of presenting to the Senate of the United 
States the tacts attending the election of David Turpie as aforesaid, have considered 
the same and respectfully report: 

Mr. Turpie received a certificate of his election from the governor of Indiana, 
which constitutes a prima facie title to his seat, and has been admitted thereupon to 
take the oath. 

The two houses of the legislature of Indiana, having failed to concur in the 
appointment of a Senator, met in joint convention, and after sundry ballotings, in 
which no person had a majority of the votes cast, a ballot was had in which Mr. 
lurpie received 2 more votes than all others. A quorum of said joint convention 
and a quorum ot each house was present and voted. The proceedings were in all 
respects regular, and resulted in a valid election of Mr. Turpie, unless the facts 
which the remonstrants offer to prove constitute a valid objection. 

Ihey ofler to show, first, that, there being a vacancy in the office of lieutenant- 
governor, the Hon. Robert S. Robertson was duly elected to fill such vacancy, and 
thereby became entitled by the constitution and laws of Indiana to preside over the 
senate; but that, on the meeting of the senate on the 6th day of January, 1887, being 
the first day of the session of the legislature at which said alleged election of Mr. 
1 urpie took place, one Alonzo G. Smith usurped the office and function of such pre¬ 
siding officer, was supported and maintained in such usurpation by a majority of 
said body, excluded Mr. Robertson from said office and function, and continued so to 
preside and so to exclude Mr. Robertson during all the sessions of said senate, includ¬ 
ing its attendance on said joint convention, until after the said alleged election of 
Mr. Turpie. 

Second. That before said alleged election the senate wrongfully, and for the pur¬ 
pose of obtaining a majority for said Turpie in said joint convention, declared two 
members, who had been duly and lawfully elected members thereof, not entitled to 
their seats, and declared two other persons, who had not been duly and lawfully 
elected, to be entitled to such seats, and thereupon seated such persons, and that 
this was done without right, without evidence, and without hearing or debate; and 
that said persons so seated thereafter were present and voted for Mr. Turpie in said 
convention, and that without such votes said Turpie would not have received a 
majority. 

The committee are of opinion that the facts offered, if proved, will not warrant 
t he Senate in declaring the sitting member not entitled to his seat. There can bo no 
doubt that the body in question was the constitutional senate of Indiana. The jour¬ 
nals of both houses of the legislature of the State have been submitted to us. It 
appears that the body was recognized as the senate by the governor and by the house 
of representatives. Statutes, to which its constitutional assent was necessary, were 
enacted and have become part of the law of the State. 

It seems to us that, without entering upon the question whether there was a va¬ 
cancy in the office of lieutenant-governor which Mr. Robertson was duly elected to 
fill, the recognition of Mr. Smith by a majority of the senate as its lawful presiding 
officer, and the recognition of the senate as a lawfully-organized body by the other 
house as well as by all its own members who remained and took part in its legisla¬ 
tive proceedings, and by the executive department, require us to consider it as the 
lawful senate, lawfully organized so far as to be entitled to take part in the joint 
convention which elected a Senator of the United States. 

We also think that the j udgment of the senate of Indiana as to the title of Messrs. Bran- 
ah an and McDonald, the two members in question, to their seats is bindin g upon the Sen¬ 
ate of the United States. This body is made by the Constitution the judge of the elec¬ 
tions, qualifications, and returns of its members. The senate of Indiana is likewise 
the judge of the election, qualifications, and returns of its own members. We must 
determine all questions arising out of the proceeding of the electors. But who sus¬ 
tain the character of electors is to be determined by the legislative body of the State. 
We can not inquire into the motive which controlled its judgment. In rendering 
that judgment, whether it shall give a hearing to parties, permit debate, examine 
witnesses, act upon evidence or without evidence, are matters within its own discre¬ 
tion. If that discretion were exercised in the manner charged by the remonstrants, 
a majority of the committee think that a great public crime was committed, for which 
the offenders are responsible to the people of Indiana. But we can not try the ques¬ 
tion. 

A majority of the committee do not mean to be understood as now committing our¬ 
selves to an opinion upon the question whether the Senate can not refuse to admit 
to a seat a claimant who owes his election to a legislative body which is itself the 
result of fraud or crime, which has overcome the true will of the people, even if it 
have possessed itself of legislative authority, and of the technical evidence of a right¬ 
ful character, or whether the judgments of such a body as to the title to seats of its 
individual members are entitled to any respect whatever. If that question shall 
hereafter unhappily arise it will be dealt with on its own merits. The committee jw*k 
to be discharged from the further consideration of the several memorials. 

S. Doc. 11-±6 



722 


SENATE ELECTION CASES, 


[Fiftieth Congress—First session.] 

DANIEL B. LUOAS vs. CHARLES J. FAULKNER, 

of West Virginia. 

December 5, 1887, papers purporting to be the credentials of Daniel B. Lucas, appointed a Senator 
by the governor of West Virginia, and of Charles J. Faulkner, elected Senator by the legislature of 
West Virginia, in special session, and also the protest of Mr. Lucas against the administration of the 
oath to Mr. Faulkner, were presented to the Senate. Objection was made to the admission of the oath 
to Mr. Faulkner, and the question of his admission was postponed. December 12 the matter was 
referred to the Committee on Privileges and Elections, which reported on the 14th. 

The committee found the following facts: The legislature of West Virginia, whose duty it was to 
elect a Senator for the term beginning March 4, 1887, adjourned without making a choice. The gov¬ 
ernor was by the State constitution empowered to convene the legislature in special session to trans¬ 
act business mentioned in the call, and no other. March 5 the governor appointed Mr. Lucas in the 
recess of the legislature, and on the same day issued his proclamation convening the legislature in 
special session to consider and act upon eight subjects named in the call, no one of which was the 
election of a United States Senator. The legislature met and duly elected Mr. Faulkner, if it had 
power to do so. The committee held that the constitution required the legislature to fill the vacancy 
at its next meeting; that the body convened by the governor’s proclamation was the “legislature, 
and this its next meeting, and that the prohibition of the State constitution must be taken to apply 
to business transacted under that constitution and not to “ duties imposed upon [the legislature] by 
the supreme authority of the Constitution of the United States.” The committee further held that 
the fact that Mr. Faulkner held a judicial office at the time of his election, and that the State constitu¬ 
tion made him, “during his continuance therein, ineligible to any political office,” did not invalidate 
his election, because “no State can prescribe any qualification to the office of United States Senator 
in addition to those declared in the Constitution of the United States.” The committee therefore 
reported that Mr. Faulkner was entitled to the seat. The resolution reported by the committee was 
agreed to on the same day, the 14th, and Mr. Faulkner appeared, took the oath of office, and took his 
seat in the Senate. December 20 Mr Faulkner offered a resolution for the compensation of Mr. Lucas 
for all expenses, etc., as contestant, which was referred to the Committee on Privileges and Elections. 
That committee reported on the 12th of January, 1888, a resolution to pay Mr. Lucas $1,000 in full of 
all claims. This resolution was referred to the Committee to Audit and Control Contingent Expenses, 
which reported it without amendment on the 25th, and on the same day it was agreed to by the Sen¬ 
ate. 

The history of the case here given consists of a transcript of the Journal of the Senate (1st sess. 
50th Cong.) relating to this subject and the report of the committee. 

Monday, December 5, 1887. 

The President pro tempore laid before the Senate the credentials of Daniel B. Lucas, 
appointed a Senator by the governor of the State of West Virginia to fill the vacancy 
occasioned by the expiration of the term of Johnson M. Camden, March 4, 1887, the 
legislature of said State having adjourned sine die without having chosen a. Senator 
to fill said vacancy as prescribed by law; which were read. 

The President pro tempore laid before the Senate the credentials of Charles J. 
Faulkner, elected a Senator by the legislature of West Virginia, in special session, 
for the term of six years, commencing March 4, 1887; which were read. 

*#*#**# 

The President pro tempore laid before the Senate a protest of Daniel B. Lucas 
against the administration of the oath to Charles J. Faulkner, claiming to be elected 
Senator from the State of West Virginia. 

Ordered, That it lie on the table. 

[A copy of the credentials of Mr. Faulkner, which embody the proclamation of 
the governor convening the legislature in special session and a transcript of the pro¬ 
ceedings of the legislature in relation to the election, are printed on pp. 1 to 3 Cong. 
Record, 1st sess. 50th Cong. The protest of Mr. Lucas may be found ibid., p. 3, as 
well as Mr. Faulkner’s resignation of the office of judge of the thirteenth judicial 
circuit.] 

Mr. Charles J. Faulkner, whose credentials were this day presented, having 
appeared, 

Mr. Hoar objected to the administration of the oath to him at present; and 

The question of his admission was postponed to to-morrow. 

Monday, December 12, 1887. 

On motion by Mr. Hoar, 

Ordered, That the credentials of Mr. Faulkner as a Senator from the State of West 
Virginia, the memorial of Mr. Lucas, and all other papers on the files of the Senate 
relating to the title to the seat from the State of West Virginia, be referred to the 
Committee on Privileges and Elections. 


LUCAS YS. FAULKNER. 


723 


Wednesday, December 14, 1892. 

Mr. Hoar, from the Committee on Privileges and Elections, to whom were referred 
the credentials of Charles J. Faulkner, the credentials of Daniel B. Lucas, and the 
protest of Daniel B. Lucas against administering the oath to Charles J. Faulkner 
as Senator from the State of West Virginia, submitted a report (No. 1), accompanied 
by the following resolutions; which were considered by unanimous consent, and 
agreed to: 

Resolved , That Daniel B. Lucas is not entitled to a seat in the Senate from the 
State of West Virginia. 

Resolved, That Charles J. Faulkner has been duly elected Senator from the State 
of West Virginia for six years, commencing on the 4th day of March, 1887, and that 
he is entitled to a seat in the Senate as such Senator. 

Mr. Faulkner appeared, and the oath prescribed bylaw having been administered 
to him by the President pro tempore, he took his seat in tho Senate. 

REPORT OF THE COMMITTEE. 

[The committee consisted of Messrs. Hoar (chairman), Frye, Teller, Evarts, Spooner, 

Saulsbury, Vance, Pugh, Eustis.] 

In the Senate of the United States. 

December 14, 1887.—Ordered to be printed. 

Mr. Hoar, from the Committee on Privileges and Elections, to whom were referred 
the credentials of Charles J. Faulkner, the credentials of Daniel B. Lucas, and the 
protest of Daniel B. Lucas against administering the oath to Charles J. Faulkner as 
Senator from the State of West Virginia, submitted the following report: 

The Constitution of the United States, Article I, section 3, provides: 

“The Senate of the United States shall be composed of two Senators from each 
State, chosen by the legislature thereof, for six years; * * * if vacancies happen, 

by resignation or otherwise, during the recess of the legislature of any State, the 
executive thereof may make temporary appointments until the next meeting of the 
legislature, which shall then till such vacancies. 

“Sec. 4. The times, places, and manner of holding elections for Senators and 
Representatives shall be prescribed in each State by the legislature thereof; but the 
Congress may at any time, by law, make or alter such regulations, except as to the 
places of choosing Senators. ” 

The Revised Statutes of the United States, Title II, section 14, provide: 

“ The legislature of each State which is chosen next preceding the expiration of 
the time for which any Senator was elected to represent such State in Congress shall, 
on the second Tuesday after the meeting and organization thereof, proceed to elect 
a Senator in Congress.” 

Section 15 prescribes the manner of such election. Section 16 is as follows: 

“ Whenever, on the meeting of the legislature of any State, a vacancy exists in 
the representation of such State in the Senate, the legislature shall proceed, on the 
second Tuesday after the meeting and organization, to elect a person to till such 
vacancy, in the manner prescribed in the preceding section for the election of a 
Senator for a full term.” 

The Constitution further provides, Article I, section 5: 

“Each house shall be the judge of the elections, returns, and qualifications of its 
own members. ” 

Of course the opinion of any other tribunal can have no weigh as an authority in 
determining any question as to the validity of the election of a Senator. But it may 
be proper to note that the constitutional authority of Congress to prescribe the time 
and manner of electing Senators, although it may not exhaust the whole subject, but 
still leaves in force the regulations of a State, in regard do the same subject, not in 
conflict with its own, is expressly affirmed by tne Supreme Court of the United 
States in Ex parte Seibold, 100 U. S., 371. 

The constitution of West Virginia provides that— 

“ The legislature shall assemble at the seat of government biennially, and not 
oftener, unless convened by the governor. The first session of the legislature, after 
the adoption of this constitution, shall commence on the third Tuesday of November, 
1872; and the regular biennial session of the legislature shall commence on the sec¬ 
ond Wednesday of January, 1875, and every two years thereafter on the same day. 
(Article VI, section 7.)” 

Article VII, section 7, is as follows: 

“The governor may, on extraordinary occasions, convene, at his own instance, the 


724 


SENATE ELECTION CASES. 


legislature; but, when so convened, it shall enter upon no business except that stated 
in the proclamation by which it was called together.” . 

The term of Mr. Camden as a Senator from West Virginia expired on the 4th day 
of March, 1887. The regular biennial session of the legislature began on the second 
Wednesday of January in pursuance of the provisions of the constitution cited. 

At that session the legislature proceeded to ballot for a successor to Mr. Camden, 
but no person obtained a majority of the ballots and it adjourned without making a 
choice. Thereafter, on the 5tli day of March, the governor appointed Mr. Lucas, in 
the recess of the legislature, and issued to him a certificate declaring liis appoint¬ 
ment as Senator in the Senate of the United States “until the next meeting ot the 
legislature having authority to fill such vacancy.” Mr. Lucas accepted the appoint¬ 
ment. 

On the same 5th day of March the governor issued the following proclamation: 

“ PROCLAMATION. 

“ State of West Virginia, 

“Executive Department, 

“ Charleston , March 5, 1887. 

“I, E. W. Wilson, governor of the State of West Virginia, under and by virtue of 
section 7 of article VII of the constitution of said State, which provides that— 

111 The governor may, on extraordinary occasions, convene, at his own instance, the 
legislature; but, when so convened, it shall enter upon no business except that 
stated in the proclamation by which it was called together ; — 

“ Do issue this, my proclamation, to convene the legislature of said State, at the 
seat of government, at Charleston, on the third Wednesday in April, A. D. 1887, to 
consider and act upon the following subjects of legislative business, to wit: 

“ I. To make appropriations of public money to pay general charges upon the 
treasury. 

“ II. To make appropriations of public money to pay members of the legislature, 
and for salaries of the officers of the government, in pursuance of the forty-second 
section of the sixth article of the constitution. 

“ To protect the public treasury against unnecessary expenditures by— 

“ 1. Regulating the costs, charges, and proceedings in criminal cases before justices 
of the peace and circuit courts. 

“2. Providing for and limiting the allowances for the maintenance of lunatics in 
jail. 

“IV. To carry into effect section nine of article XI of the constitution, which pro¬ 
vides that— 

Railroads heretofore constructed, or that may hereafter be constructed, in this 
State, are hereby declared public highways, and shall be free to all persons for the 
transportation of their persons and property thereon, under such regulations as shall 
be prescribed by law, and the legislature shall, from time to time, pass laws applica¬ 
ble to all railroad corporations in the State, establishing reasonable maximum rates 
of charges for the transportation of passengers and freights, and providing for the 
correction of abuses, the prevention of unjust discriminations between through and 
local or way freights and passenger tariffs, and the protection of the just rights of 
the public, and shall enforce such laws by adequate penalties/ 

“And to provide for securing such relief to the people of this State as may be had 
from the act recently passed by Congress entitled ‘ An act to regulate commerce/ 

“V. To prohibit railroad companies from carrying or conveying public officers over 
their roads free of charge, or at a less charge than the usual rate for other persons, 
and to abolish, absolutely, the free-pass system. 

“VI. To prohibit railroad companies from carrying or conveying delegates to politi¬ 
cal conventions over their roads free of charge, or at a less charge than is made for 
all other such delegates to such conventions, and to define what shall constitute a 
political convention. 

“VII. To prohibit the use of money and all other improper, fraudulent, and corrupt 
means to secure nominations, by political parties, or election to public office. 

“VIII. To provide for the acceptance and confirmation of the reports of the joint 
boundary commission on the boundary lines between West Virginia and Pennsyl¬ 
vania.” 

The legislature met in special session, pursuant to said call, and duly elected Mr. 
Faulkner to fill the existing vacancy in the Senate of the United States, if it had 
authority so to do. 

The Constitution of the United States is the supreme authority, and all provisions 
of the constitution or statutes of any State are void and of no effect unless they can 
be so construed as not to conflict with its provisions. 

The Constitution of the United States expressly provides that the vacancy which 


LUCAS VS. FAULKNER, 


725 


happens during the recess of the legislature of any State shall he filled hy the legis¬ 
lature at its next meeting. The statute of the United States merely prescribes the 
time and manner in which, at such meeting, the constitutional mandate shall he 
obeyed. The only question, therefore, which can possibly arise, is whether the body 
which sat in pursuance of the call of the governor was a legislature in the constitu¬ 
tional sense. 

It is claimed by Mr. Lucas, that, as this body was not permitted to enter upon any 
legislative business, except such as related to the eight matters set forth in the call, 
it was not a legislature, but was a body deriving its power from the will of the execu- 
ti ve, and so was exerting a certain executive or quasi executive function, something 
like that which is exercised by the Senate in giving its assent to the nominations of 
public officers. 

But it seems to us that this view can not be supported. In the first place, the body 
is expressly declared by the constitution of West Virginia itself to be a legislature. 
In the next place, the function which it exercised in making enactments upon the 
eight great subjects mentioned in the call of the governor is clearly a legislative 
1 unction. Among them, under Articles I and II, is the making appropriations of 
public money; under Article III, the regulating of procedure in criminal cases; 
under Articles V, VI, and VII would exist the power to declare certain high crimes 
and misdemeanors; and under Article VIII, to give the assent of the State to the 
establishment and confirmation of its boundary lines. 

It is difficult to conceive of any definition of the word 11 legislature” which would 
not include a body capable of passing and actually passing such enactments as 
thcso. They can be binding on the people of the Commonwealth only as legislation. 
They would be subject to be construed and enforced by the courts of that State only 
in their character as laws. 

But it seems to the committee that the construction of the State constitution of 
West Virginia, upon which the above argument is based, is one which will not bear 
examination. When that constitution provided that the legislature so convened in 
extraordinary occasions u should enter upon no business except that stated in the 
proclamation by which it was called together,” the people must be presumed to 
have had in mind business to be transacted under authority of the State constitu¬ 
tion, and not to have intended to prohibit the performance of duties imposed upon 
it by the supreme authority of the Constitution of the United States. 

If the argument be sound that a legislative body which is prohibited from enter- 
ing upon certain classes of business, or which is confined to certain classes of busi¬ 
ness clearly legislative in their character, is no legislature in the constitutional 
sense, its logic would require us to declare that the legislature of every State whose 
bill of rights excludes it from large domains of legislation is no legislative body. 
If, under the same provision of the Constitution of the United States, the act of 
Congress had fixed a day for holding elections for Representatives to Congress, and 
the State constitution or laws should prohibit the assembling of the people for 
such elections on the day so fixed, it would, we suppose, be held clear that the act 
of the State would be void and the authority of the act of Congress would prevail. 

We can not see any difference between such prohibition of a State constitution 
applicable to the constitutional electors of Senators, who are members of the State 
legislature, and the constitutional electors of representatives, who are a body of 
electors authorized to vote for members of the most numerous branch of the State 
legislature. 

We are therefore clearly of opinion that the election of Mr. Faulkner at the spe¬ 
cial session of the legislature of West Virginia was valid. 

It is insisted that Mr. Faulkner was ineligible to the office of Senator by reason of 
the provision of the constitution of West Virginia: 

“ No judge during his term of office shall practice the profession of law or hold 
any other office, appointment, or public trust, under this or any other government, 
and the acceptance thereof shall vacate his judicial office. Nor shall he, during his 
continuance therein, he eligible to any political office. (Article VIII, section 16.)” 

But we are of opinion that no State can prescribe any qualification to the office of 
United States Senator in addition to those declared in the Constitution of the United 
States. (See the debates on the case of Mr. Trumbull, supra p. 148.) 

This provision, according to the settled rule of construction, must be so construed 
as to attribute to it a meaning not inconsistent with the constitution of West Vir¬ 
ginia. This can well and properly be done by holding it to mean “ eligible to office 
under the constitution of West Virginia.” 

We therefore find that Mr. Faulkner has been constitutionally elected to the seat 
in the Senate made vacant by the expiration of the term of Mr. Camden and that 
he is entitled to take the oath. 

We report the following resolutions: 

Resolved , That Daniel B. Lucas is not entitled to a seat in the Senate from the 
State of West Virginia. 


726 


SENATE ELECTION CASES. 


j Resolved, That Charles J. Faulkner has been duly elected Senator from the State 
of West Virginia for the term of six years, commencing on the 4th day of March, 
1887, and that he is entitled to a seat in the Sen ate as such Senator. 

EXPENSES OF MR. LUCAS. 

Tuesday, December 20, 1887. 

Mr. Faulkner submitted the following resolution, which was referred to the Com¬ 
mittee on Privileges and Elections: 

Resolved, That the sum of dollars be paid out of the contingent fund of the 
United States Senate to D. B. Lucas in full of all expenses, etc., incurred by him as 
a contestant for a seat in the Senate as a Senator from the State of West Virginia. 

Thursday, January 12, 1888. 

Mr. Hoar, from the Committee on Privileges and Elections, reported the following 
resolution, which was referred to the Committee to Audit and Control the Contin¬ 
gent Expenses of the Senate: 

Resolved, That there be paid to Daniel B. Lucas, of West Virginia, out of the con¬ 
tingent fund of the Senate, as compensation for expenses incurred in contesting the 
seat of Hon. Charles J. Faulkner in the United States Senate, $1,000, the same to be 
in full for all claims for such expenses, and also for any claim for salary as Senator. 

Wednesday, January 25, 1888. 

Mr. Jones, of Nevada, from the Committee to Audit and Control the Contingent 
Expenses of the Senate, to whom was referred the resolution submitted by Mr. Hoar 
on the 12th instant, to pay Daniel B. Lucas $1,000 for expenses incurred by him in 
contesting for a seat in the Senate, reported it without amendment. 

The Senate proceeded, by unanimous consent, to consider the said resolution; and 

Resolved, That the Senate agree thereto. 


CLARK AND MAGINNIS VS. SANDERS AND POWER. 


727 


[Fifty-first Congress—First session.] 

CLARK AND MAGINNIS vs. SANDERS and POWER, 

of Montana. 

January 16, 1890, papers purporting to be tlie credentials of Messrs. Sanders and Power as Senator* 
from the State of Montana, were presented and referred to tlie Committee on Privileges and Elections. 
January 28, papers purporting to be the credentials of Merssrs. Clark and Maginnis were also presented, 
and were referred to the same committee. March 24 the committee reported and on the next day the 
views of the minority were submitteed. The reports agree in finding the facts to be as follows: Messrs. 
Sanders and Power were elected by a joint assembly composed of one-half of the senate of Montana 
and a body calling itself the house of representatives made up of twenty-five persons of whose right to 
sit and act in the house there was no question, and five persons claiming the right to sit and act as 
members from the county of Silver Bow. Messrs. Clark and Maginnis were elected by a joint assem¬ 
bly composed of one-hali of the senate, and a body claiming to be the house of representatives and 
made up of twenty-four persons whose title to seats was undisputed, and five persons claiming to be 
members from Silver Bow County. 

The question which of these two bodies was the lawful house depended upon the question which of 
the two delegations of five members from the county of Silver Bow was entitled to sit in the house of 
representatives until their title was adjudicated by the house. The decision as to which delegation 
was so entitled to sit depended upon the question who was lawfully entitled to give credentials to 
the representatives elect, and the decision of the body entitled to give" the credentials depended upon 
the question whether the vote of precinct 34 of Silver Bow County should be admitted or rejected. 
The majority of the committee held that, under the law applicable to this election, it was the duty of 
the State canvassing board to receive the returns, declare the result, and give the credentials in accord¬ 
ance with such declaration, and that as that board had given the lawful certificates of election to the 
first-named five persons, they were lawfully entitled to take part in the organization of the house and to 
sit until the house adjudicated the title to their seats and to take part in its proceedings and in the 
joint convention for the election of Senators of the United States. 

The minority of the committee contended that the county commissioners were the proper canvass¬ 
ing board, the clerk of the county the proper authority to issue certificates of election, and that, as the 
county commissioners had counted the vote of precinct 34, under mandamus from the district court of 
the Territory, and the clerk of the county had issued certificates accordingly to the second five per¬ 
sons above mentioned as claiming to represent Silver Bow, the body in which they sat, was the lawful 
joint assembly of the senate and house of representatives of Montana, and Messrs. Clark and Maginnis 
the lawfully elected Senators from that State. The minority further contended that in any event the 
powers of t he State or county canvassing board were merely ministerial, and that, therefore, the vote 
of precinct 34 must be counted and the persons certified by county clerk accepted as members of the 
house until the house itself had passed on their title. 

April 16 the case was decided in accordance with the majority report and Messrs. Sanders and Power 
were seated. 

The history of the case here given consists of a transcript of the Journal of the Senate, 1st sess., 
51st Cong., in relation to it and the reports of the committees from Sen. Rep. No. 538, 1st sees., 51st 
Cong. 

The provisions of the constitution of Montana and of the acts of Congress and of the Territory 
upon which the decision depended appear in the report of the committee below. 

Thursday, January 16, 1890. 

Mr. Teller presented a paper purporting to be the credentials of Wilbur F. San¬ 
ders, chosen a Senator by the legislature of Montana, and also a paper purporting to 
be the credentials of Thomas C. Power, chosen a Senator by the legislature of the 
same State; which were read and referred to the Committee on Privileges and 
Elections. 

Thursday, January 23, 1890. 

Mr. Vest presented a paper purporting to be the credentials of William A. Clark, 
and also a paper purporting to be the credentials of Martin Maginnis, elected Sena¬ 
tors by the legislature of the State of Montana; which were read and referred to 
the Committee on Privileges and Elections. 

On motion by Mr. Vest, and by unanimous consent, 

Ordered, That pending the settlement of the contested-election cases of Senators 
from the State of Montana, Messrs. Wilbur F. Sanders, Thomas E. Power, William 
A. Claik, and Martin Maginnis be admitted to the privileges of the floor of the 
Senate 

[The motion was agreed to without objection and without discussion.] 

Monday, March 24,1890. 

Mr. Hoar, from the Committee on Privileges and Elections, to whom were referred 
the papers purporting to be credentials of Wilbur F. Sanders, Thomas C. Power, 
William A. Clark, and Martin Maginnis, severally claiming seats in the Senate from 


728 


SENATE ELECTION CASES. 


the State of Montana, submitted a report (No. 538) accompanied by the following 
resolutions: 

Resolved, That William A. Clark is not entitled to be admitted to a seat in the 
Senate from the State of Montana. 

Resolved, That Martin Maginnis is not entitled to be admitted to a seat in the 
Senate from the State of Montana. 

Resolved, That Wilbur F. Sanders is entitled, upon the merits of the case, to be 
admitted to a seat in the Senate from the State of Montana. 

Resolved, That Thomas C. Power is entitled, upon the merits of the case, to be 
admitted to a seat in the Senate from the State of Montana. 

Mr. Gray asked and obtained leave to submit at some future day the views of a 
minority of the Committee on Privileges and Elections on the foregoing cases. 

Tuesday, March 25, 1890. 

Mr. Gray, in pursuance of leave granted, submitted the views of the minority of 
the Committee on Privileges and Elections on the contested seats in the Senate from 
the State of Montana, accompanied by the following resolutions intended to be pro¬ 
posed as amendments to the resolutions reported by the committee; which were 
ordered to be printed, to accompany the report No. 538: 

Resolved, That William A. Clark is entitled to be admitted to a seat in the Senate 
from the State of Montana. 

Resolved, That Martin Maginnis is entitled to be admitted to a seat in the Senate 
from the State of Montana. 

Resolved, That Wilbur F. Sanders is not entitled, upon the merits of the case, to 
be admitted to a seat in the Senate from the State of Montana. 

Resolved, That Thomas C. Power is not entitled, upon the merits of the case, to 
be admitted to a seat in the Senate from the State of Montana. 

Friday, March 28, 1890. 

On motion by Mr. Hoar, 

Ordered, That 1,500 additional copies of the reports of the majority and minority 
of the Committee on Privileges and Elections in the Montana contested-election 
case be printed for the use of the Senate. 

REPORT OF THE COMMITTEE. 

[The committee consisted of Messrs. Hoar (chairman), Frye, Teller, Evarts, Spooner, 

Vance, Pugh, Gray, Turpi©.] 

In the Senate of the United States. 

March 24, 1890.—Ordered to be printed. 

Mr. Hoar, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

The Committee on Privileges and Elections, to whom were referred sundry docu¬ 
ments purporting to be, respectively, the credentials of Messrs. Wilbur F. Sanders, 
Thomas C. Power, William A. Clark, and Martin Maginnis, each claiming to be 
entitled to a seat in the Senate from the State of Montana, have considered the same 
and respectfully report: 

No distinction exists between the cases of Messrs. Sanders and Power, and no dis¬ 
tinction exists between the cases of Messrs. Clark and Maginnis. The cases on each 
side have been presented and argued upon the merits of the title, and not merely 
upon the question presented by the certificate of the governor or of the secretary of 
the State. The committee, therefore, have considered and report upon the whole 
case upon its merits. 

The claimants on both sides seem to be agreed that a lawful joint convention was 
held in Montana by the members of the two houses of the legislature, and elected 
Senators by due proceedings. The dispute is which of two bodies claiming to be 
the lawfully-organized house of representatives of Montana was entitled to that 
character. 

There was no election of Senator by concurrent vote on the Tuesday appointed for 
that purpose by the statute of the United States (Rev. Stat., sections 14,15). On 
the following day one-half the members of the senate met in joint assembly with a 
body which had assembled and organized in a room called the Iron Hall, which 
body was known as the Iron Hall or Republican house, whereupon, a ballot for 
Senator being had, Mr. Sanders had a majority of all the votes cast, and was declared 
duly elected. No other person having such majority, the convention was adjourned 
until the day following, when, a ballot for Senator being held, Air. Power had a 


CLARK AND MAGINNIS VS. SANDERS AND POWER. 


729 


majority of all the votes cast and was declared duly elected. If this body were the 
lawful house of representatives of Montana, these two gentlemen were duly chosen 
Senators. 

On the same day the other half of the members of the senate met in joint assembly 
with a body which had assembled and organized in the court-house, which body 
was known as the court-house or Democratic house, voted for Senators by separate 
ballotings, adjourned from day to day, and continued balloting until Messrs. Clark 
and Maginnis had a majority of all the votes cast and were declared duly elected. 
If this body were the lawful house of representatives of Montana these two gentle¬ 
men were duly chosen Senators. 

These two bodies were composed as follows: By the constitution of Montana the 
house of representatives consists of fifty-five members, of whom twenty-eight are a 
quorum. Twenty-five persons of whose title to sit in the house of representatives and 
take part in its proceedings no question is made, together with five persons claiming 
to be entitled to sit and take part as representatives from the county of Silver Bow, 
met, as above stated, at the Iron Hall, at the time fixed by the constitution for the 
meeting of the legislature, and organized there. The auditor, who is required by 
the constitution to preside at the organization of the house, called them to order and 
presided till a speaker was chosen. Twenty four other persons of whose title to sit 
in the house of representatives and take part in its proceedings no question is made, 
together with five other persons claiming to be entitled so to sit and take part as 
representatives from the county of Silver Bow, met, as above stated, at the court¬ 
house, at the time fixed by the constitution for the meeting of the legislature, and 
organized there. 

The whole case, therefore turns upon the question which of these two sets of five 
persons was entitled to sit in the house of representatives from the county of Silver 
Bow, take part in the organization and other proceedings down to and including the 
time of the election of Senators. It is not claimed that there was any adjudication 
of the house itself affirming or denying such title. 

To determine this question the committee have been led to consider three others, 
the decision of w hich, in our judgment, disposes of the whole case. 

First. Which of the two sets or groups of five members claiming to sit for the 
county of Silver Bow had credentials from the officer or board entitled to canvass 
the vote and declare the result? 

Second. If one group of five had the lawful credentials, but the other group were 
in fact elected, which was legally entitled to sit in the house at its original organi¬ 
zation, and remain and take part in all subsequent proceedings until the house itself 
had adjudicated their title, there being in existence two bodies each claiming to be 
the true house? 

Third. Is there evidence which warrants the Senate in finding that the persons 
who had the credentials were not, in fact, duly elected? 

There was another view of the case which in the opinion of one or two only of the 
committee rendered the foregoing questions immaterial. We will refer to it before 
closing the report. But the foregoing statement presents the whole matter to be 
inquired into, as understood by the large majority of the committee. 

First. Who had the lawful credentials? it appears from the record of the body 
which met at the Iron Hall that “theroll of the members elected and holding cer¬ 
tificates of the State canvassing board was called,” and that thirty members an¬ 
swered to their names, including Messrs. A. F. Bray, P. R. Dolman, F. H. Hoffman, J. 
H. Monteath, and William Thompson, claiming to be members from Silver Bow.; 
that these persons took the oath of office, took part in the organization, and remained 
members of said body until after the election of Messrs. Sanders and Power, in 
which they took part. The certificate of the State canvassing board will be found 
in the appendix, marked A. 

It appears from the records of the body which met at the court-house that the 
roll of the members elected was called and twenty-eight persons, holding certificates 
of election from the clerks of their respective counties, appeared and answered to 
their names, including Messrs. Thomas F. Courtney, A. H. Day, A. M. Dusseault, 
John W. Gilligan, and Joseph Hogan, claiming to be members from Silver Bow; 
that these persons took the oath of office, took part in the organization, and 
remained members of said body until after the election of Messrs. Clark and Magin¬ 
nis, in which they took part. As our decision does not depend upon any question 
as to the form of the certificate of the county clerk, it is not necessary to aunex a 
copy of his certificate. 

The enabling act, which authorized a constitutional convention for Montana, was 
approved by the President February 22, 1889. It provided (section 24)— 

“ The constitutional convention may, by ordinance, provide for the election of 
officers for full State governments, including members of the legislature.” 

It is also provided (section 8): 

“And the constitutional conventions which may assemble in North Dakota, Mon- 


730 


SENATE ELECTION CASES. 


tana, and Washington shall provide, in like manner, for submitting the constitutions 
formed by them to the people of said proposed States, respectively, for ratification 
or rejection, at elections to be held in said proposed States on the said first Tuesday 
in October. At the elections provided for in this section the qualified voters of said 
proposed States shall vote directly for or against the proposed constitutions, and for 
or against any articles or propositions separately submitted. The returns of said 
elections shall be made to the secretary of each of said Territories, who, with the 
governor, and chief justice thereof, or any two of them, shall canvass the same; and 
if a majority of the legal votes cast shall be for the constitution the governor shall 
certify the result to the President of the United States, together with a statement 
of the votes cast thereon, and upon separate articles or propositions, and a con¬ 
stitution, articles, propositions, and ordinances.” 

The constitutional convention of Montana passed the following ordinance; 

u [Ordinance 2—Elections]. 

u Beit ordained by the convention assembled to form a Constitution for the State of 
Montana: 

“ First. That an election shall be held throughout the Territory of Montana on the 
first Tuesday of October, 1889, for the ratification or rejection of the constitution 
framed and adopted by this convention. 

“ Second. At said election the constitution framed and adopted by this convention 
shall be submitted to the people of the Territory for their ratification or rejection, 
and all persons who are then qualified under the laws of this Territory shall be qual¬ 
ified to vote for the ratification or rejection thereof. 

“ Third. Said elections shall be held at the several polling places and precincts 
throughout the Territory appointed for the holding of elections under the laws of this 
Territory, and shall be conducted in the manner prescribed by the laws of the Terri¬ 
tory regulating elections. The boards of county commissioners of the several coun¬ 
ties of the Territory shall appoint judges and clerks of such elections in each of said 
polling places and precincts in the same manner as is now required by law for the 
appointment of judges and clerks of general elections in the Territory. 

“Fourth. Each elector voting at said election shall have written or printed upon 
the ticket he may deposit in the ballot box, the words 1 For the constitution/ or 
i Against the constitution/ 

“ Fifth. The votes cast at said election for the adoption or rejection of said con¬ 
stitution shall be canvassed by the canvassing boards of the respective counties not 
later than fifteen days after said election, or sooner if the returns from all the pre¬ 
cincts shall have been received, and in the manner prescribed by the laws of 
the Territory of Montana for canvassing the votes at general elections in said Terri¬ 
tory, and the returns of said election shall be made to the secretary of the Territory, 
who, with the governor and the chief justice of the Territory, or any two of them, 
shall constitute a board of canvassers, who shall meet at the office of the secretary 
of the Territory on or before the thirtieth day after the election and canvass the 
votes so cast and declare the result. 

“ Sixth. That on the first Tuesday in October, 1889, there shall be elected by the 
qualified electors of Montana a governor, a lieutenant-governor, a secretary of state, 
an attorney-general, a State treasurer, a State auditor, a State superintendent of 
public instruction, one chief justice and two associate justices of the supreme court, 
a judge for each of the judicial districts established by this constitution, a clerk of 
the supreme court, and a clerk of the district court in and for each county of the 
State, and the members of the legislative assembly provided for in this constitution. 
The terms of officers so elected shall begin when the State shall be admitted into 
the Union and shall end on the first Monday in January, 1893, except as otherwise 
provided. 

“ Seventh. There shall be elected at the same time one Representative in the Fifty- 
first Congress of the United States. 

“Eighth. The votes for the above officers shall be returned and canvassed as is 
provided by law, and returns shall be made to the secretary of the Territory and 
canvassed in the same manner and by the same board as is the vote upon the con¬ 
stitution, except as to clerk of the district court. 

“Ninth. There shall also be elected at the same time the following county and 
township officers: Three county commissioners, one clerk of the board of commis¬ 
sioners and ex officio recorder, one sheriff, one county treasurer, one county superin¬ 
tendent of common schools, one county surveyor, one county assessor, one coroner, 
one public administrator, one county attorney, two justices of the peace, and two 
constables for each township. The terms of office for the above-named officers shall 
begin upon the admission of the State and end upon the first Monday in January, 
A. D. 1893, except as to county treasurer, whose term shall begin on the first Mon- 


CLARK AND MAGINNIS VS, SANDERS AND POWER. 731 


(lay in March succeeding his election and end on the first Monday of March, A. D. 
1893, and also as to county commissioners, whose terms are otherwise provided for 
in this constitution. 

“ t enth. The votes for the above county and township officers and for clerk of the 
< *!^ ,ric ^. cour ^ 8 ^ a .^ l )e returned and canvassed, and certificates of election to said 
officers issued as is now provided by law. 

“ Eleventh. Notice of the election for the adoption or rejection of this constitu¬ 
tion, and for State, district, county, and township officers shall be given by the 
clerks ol the several boards of county commissioners, in the same manner as notice 
of general elections for Delegate to Congress and county officers is required to be 
given by the existing laws of the Territory. 

11 1 welfth. That the provisions of this ordinance shall apply only to the election 
and to the officers elected on the first Tuesday of October, 1889.” 

The provisions of the general laws of the Territory of Montana in reference to 
elections will be found in Appendix B, as also the provisions of statute (1889) requir¬ 
ing five judges of elections instead of three. 

It will be seen that by the Territorial law there were to be at each precinct three 
judges of elections; this number afterwards was required to be five by statute of 
1889, and two clerks. 

As each voter presented himself^ bis name and number were to be entered on the 
poll book, his ballot delivered to one of the judges, who, without inspecting it, was 
to deposit it in the box. Wh,on the polls closed, the judges were to canvass the vote, 
as follows: First, the several'poll lists to be compared, and mistakes, if any, cor¬ 
rected, till they were found to agree. Next, the ballot box was to be opened, the 
ballots counted, and if they were found to exceed the number on the poll lists, they 
were to be placed again in the box and the excess drawn out. Then the board was 
to ascertain the whole number of votes cast, and the ejerks to sot down in their 
poll books the name of every person voted for, the office for which he received votes, 
and the number of votes he received. This result being certified by the clerks and 
attested by the judges, one of the two poll books was to be sent by mail to the 
clerk of the board of county commissioners. 

After the fifteenth day from the election, or sooner if all the returns were received , 
the chairman of the board of county commissioners was to open the returns and 
make abstracts of the votes. It was then the duty of the clerk of said board to 
issue certificates of election to the persons having the highest number of votes for 
members of the legislature, county and township officers, and to send to the auditor 
of the Territory a copy of such abstracts. The marshal and treasurer of the Terri¬ 
tory were then to canvass the votes for Delegate to Congress, and the governor to 
give the person elected his certificate. The constitution provides that— 

“All laws enacted by the legislative assemby of the Territory of Montana and in 
force at the time the State shall be admitted into the Union, and not inconsistent 
with this constitution or the Constitution or laws of the United States of America, 
shall be and remain in full force till altered or repealed.” 

We are then to see w hether the Territorial law providing that the county board 
shall make abstracts of the results and the county clerk issue certificates of election 
in the case of representatives was still in force, or superseded by the provisions of 
the ordinance in respect to the election in question. 

Article 5 of such ordinance is as follows: 

“ Fifth. The votes cast at said election for the adoption or rejection of said consti¬ 
tution shall be canvassed by the canvassing boards of the respective counties not 
later than fifteen days after said election, or sooner if the returns from all of the 
precincts shall have been received and in the manner prescribed by the laws of the 
Territory of Montana for canvassing the votes at general elections in said Territory, 
and the returns of said election shall be made to the secretary of the Territory, who 
with the governor and the chief justice of the Territory, or any two of them, shall 
constitute a board of canvassers, who shall meet at the office of the secretary of the 
Territory on or before the thirtieth day after the election, and canvass the votes so 
cast and declare the result.” 

The sixth article of the ordinance enumerates all of the State officers and fixes the 
time of their election. Within this list is included representatives, and clerks of dis¬ 
trict courts, who, though chosen for each county, are officers of a court whose juris¬ 
diction extends over several counties. 

The seventh article fixes the same time for the election of Representatives in Con¬ 
gress. 

The eighth article then provides that the votes for the above officers, except clerks 
of the district courts, shall be returned and canvassed as is provided by law; that 
returns shall then be made to the secretary of the Territory, “and canvassed in the 
same manner and by the same board as is the vote upon the constitution, except as 
to clerk of the district court.” 

The ninth article provides for the election of county and township officers. 


732 


SENATE ELECTION CASES. 


The tenth declares that the votes for these officers and the clerk of the district 
court shall be returned and canvassed, and certificates of election to said officers 
issued as is now provided by law. 

Here is an explicit enumeration, first, of the officers, votes for whom are to be can¬ 
vassed by the same board as the votes on the constitution in which representatives 
are included, and an explicit enumeration of the officers, votes for whom are to be 
returned to and canvassed by the county board, and to whom certificates are to be 
issued by the county clerk, from which the representatives are excluded. 

It seems to us that this is an express enactment that the votes for representatives 
are to be canvassed by the State board and a clear implication that they are to 
declare and certify the result. It could not have been intended that the returns 
should be made to the State board by a tribunal who had already ascertained and 
declared the result, and given an official certificate which should clothe the person 
found elected with the title to the seat feasible only by the judgment of the house 
itself, and that the State board should be required thereafter to make a new can¬ 
vass, the result of which they had no authority to declare or certify, and which 
could serve no lawful purpose whatever. It is suggested that there is no express 
direction in the ordinance that the State board shall ascertain or certify the result, 
but we think this is included in the duty to make the final canvass. 

The provisions of the Territorial law, so far as they might otherwise have been 
applicable, are repealed by the ordinance which makes an entire provision for the 
whole subject. 

It is further suggested that effect may be given to all the language of the ordi¬ 
nance, by supposing that the Territorial board are required to canvass and ascertain 
the result, but that the county clerk is still to give the certificate of the result. But 
this officer is the officer of another and inferior tribunal. The State board has no 
authority over him. He has no custody of their records, and, unless by implication, 
no right of access to them. His duties are performed at a distance from the place 
where those records are kept, in some cases, we are told, a distance of more than 400 
miles, a distance which the clerk must travel to get at these records without com¬ 
pensation for his service or his expense. He is “ immediately ” to forward the 
returns to the State board. The board whose action he has so certified will before 
that have performed its entire duty and become functus officio. 

But further, and more decisive. The State officers mentioned in section 6, except 
representatives, are officers whose election was not provided for in the Territorial 
election law at all. Some of them did not exist in the Territory. The others were 
appointed by the President or governor. Now, if the claim under discussion be sound, 
there is no provision in the ordinance whatever for declaring the result and giving 
certificates in the case of these officers. The old law did not apply to them, for they 
did not then exist. The ordinance does not apply to them unless the final canvass, 
which is to be made by the State board, involves ascertaining and certifying the 
result. If it involve this in their case it involves it in the case of the representatives, 
who are comprehended with them in the same provision. How can it be said that 
when articles 6 and 8 of the ordinance enact that the returns for members of the leg¬ 
islative assembly u shall be canvassed in the same manner and by the same board as 
the vote upon the constitution,” it means one thing as to one branch of that assem¬ 
bly, the senate, a body then provided for the first time, and another thing as to the 
house of representatives ? 

We hold, then, that Mr. Bray and his four associates who went to the Iron Hall 
with the certificate of the State board that they were duly elected from Silver Bow, 
had the lawful credentials. By the universal law governing the organization of par¬ 
liamentary bodies, these persons were clothed with the right to sit in the house, and 
perform all the functions of membership, until it had passed its own judgment upon 
their title. And this is conceded to be the general rule. But it is said, that this 
rule does not apply to the case of a contest bet ween two bodies which is the rightful 
house, and the quorum in one is made up partly of persons who have lawful creden¬ 
tials, and the quorum in the other is made up partly of persons who have no creden¬ 
tials but were really elected. This raises the question: 

Second. Does the rule hold when there are two rival bodies, each claiming to be 
the true house, one made up of a number less than a quorum, of persons unquestion¬ 
ably elected, with the addition of enough who have proper certificates, but are found 
by the senate not to have been elected, to make with them a quorum, the other made 
up of a number less than a quorum of persons unquestionably elected, with the ad¬ 
dition of enough who have no certificates, but are found by the senate to have been 
elected to make with them a quorum? 

It will hereafter appear that it is unnecessary to decide this question for the pur¬ 
poses of the present case. We believe, for reasons hereafter stated, that the certifi¬ 
cates of the State board declared the true will and choice of the people, as expressed 
by a majority of the votes actually and lawfully cast. But, as the matter has been 
discussfed, it is proper to say that we are unable to see any distinction in principle 


CLARK AND MAGINNIS VS. SANDERS AND POWER. 733 


between the case of a person claiming title to a seat in an assembly whose character is 
disputed by some other body, and in an assembly whose character is undisputed. 
The majority of persons having a right to seats in the house of representatives have 
a right to organise that house and to transact all its lawful business, including the 
enactment ot laws and the election of Senators. Persons who have the certificates 
ot election have such right to seats. Every act of the assembly in which they take 
part, and to which their consent is necessary, has as absolute validity as if their 
title had been affirmed by an adjudication of the house itself. Their title is not, as 
is sometimes carelessly said, a prima facie title. It is an absolute title, continuing 
until the house itself has adjudicated that some other person be admitted to their 
place. This adjudication is ouly operative for the future, and has no retroactive 
effect whatever. When the house makes the inquiry on the merits, it may treat the 
credentials as prima facia evidence upon that question. But until the house tries 
the case, the credential is conclusive as to all the world. 

If this be true, how can an attempted usurpation by another body of the func¬ 
tions of the house, to which they belong, in the least affect their right? If four 
certified members had come over from the court-house to the Iron Hall, according to 
this argument, these men, who had no title to their seats before, would at once be¬ 
come entitled to them. If the men who went to the court-nouse had never gone 
there or made any claim to the seats, in that case, according to this theory, the five 
certified members from Silver Bow would have been all right. It seems to us im¬ 
possible to believe that the right of these gentlemen to sit and vote, the validity of 
any laws they might have helped to enact, or of the choice of any officer they might 
help to elect, should depend on the acts of other persons. 

This question may be raised at the beginning of any session of Congress. If the 
certificate of the proper officer of the State give no title, surely the act of the clerk 
in placing the claimant’s name on a roll can give none. It would be competent, if 
the claim we are dealing with be sound, to organize the House of Representatives 
of the United States with a quorum partly made up of persons having credentials 
and partly of persons having none, and thereby put upon the Senate, when called 
upon to determine whether it will recognize such a body, the necessity of going into 
evidence of what occurred at the popular elections and of trying the right of the 
members of the House to their seats. The President must make for himself a like 
inquiry, and perhaps the courts a third. It might be that these bodies would come 
to different conclusions upon the voluminous and conflicting evidence in a contested 
election case, and thus the whole Government would be thrown into confusion. 
Wo sujrpose that there has been more than one occasion in recent years when a ma¬ 
jority of the Senate firmly believed that enough of the members of the House who 
held credentials were not duly elected to change the political majority. If this 
doctrine be accepted, the party in the minority in the House may at any time associ¬ 
ate with themselves persons enough claiming to have been chosen to make a quo¬ 
rum, and disregard the certificates of the executives of the States and the Clerk’s 
roll. The Senate may then take evidence of what occurred at the polls, thereby de¬ 
termine who were lawfully elected, recognize the body so organized, and thereby 
give the persons it finds so elected the seats to which neither credentials nor judg¬ 
ment of the House have ever given a title. 

The report in Sykes v. Spencer, decided by the Senate in 1873, is relied upon as 
supporting an opinion contrary to that which we have stated. If so, we dissent 
from it. But it is to be remarked that in that case, which was upon an election held 
less than seven years after the close of the war, the doctrine of the report is not re¬ 
lied upon in the debate. It is further to be observed that that case is to be distin¬ 
guished from this by the fact that there it was conceded that the persons who had 
not certificates were duly elected. The distinction from the general rule is expressly 
put by Mr. Carpenter, in his report, upon this concession. When the fact there con¬ 
ceded is, as in the present case, disputed, and to be proved, we think there are but 
two ways in which it can be proved to the Senate. One is the possession of lawful 
credentials. The other is the judgment of the House itself, not only the final, but 
the sole judge of the elections, qualifications, and returns of its members. 

But we think the credentials of the five Republican members from Silver Bow are 
fully supported by the facts of the election as they are disclosed to us by the admis¬ 
sions of both sides, and by the undisputed and uncontrolled evidence taken injudi¬ 
cial proceedings in Montana and laid before us by Messrs. Clark and Maginnis. 

The whole inquiry turns upon the honesty and fairness of the election at precinct 
No. 34 in the county of Silver Bow. If the vote of that precinct be rejected, the 
five Republicans were chosen. If it be counted, the five Democrats were chosen. 

This precinct was a camp on the line of a railroad in process of construction, 
known as the Butte and Gallatin Railroad. 

The returns of the precinct officers were required by the fifth article of the ordi¬ 
nance to be canvassed by the canvassing boards in the respective counties not later 
than fifteen days after the election, and their returns to be made immediately to the 


734 


SENATE ELECTION CASES. 


State board, who were required to meet and canvass them on or before the thirtieth 
day after the election. 

What purported to he returns from precinct 34 were, on the 11th of October, 1889, 
forwarded t > the county board of Silver Bow, who excluded said returns for the al¬ 
leged reason that all the votes therein reported as there cast and counted were false, 
fraudulent, and void. They originally made a table of the votes of the county of 
Silver Bow, including the precinct 34. During the progress of their canvass objec¬ 
tions were made, on the ground of alleged fraud and irregularity, to the reception 
and counting of the returns of the votes cast at various precincts, including pre¬ 
cinct 34. On the following day, after the table had been completed, the board met 
to hear arguments from opposing counsel upon the exceptions taken during the 
progress of the canvass. After consideration of the evidence and arguments the 
board decided by a majority vote, 14th October, to sustain the objections to receiv¬ 
ing the vote of precinct 34, and directed the clerk to draw a line through the vote 
of that precinct upon the abstract sheet, which was done. 

At once an alternative writ of mandamus issued from the district court of the 
second judicial district, directing the county canvassers to count the votes of pre¬ 
cinct 34 and issue certificates to the persons who appeared to be elected, or show 
cause why they should not. November 7 a peremptory mandamus issued from said 
court, directing them to count said precinct, to which exceptions were saved. The 
court consisted of a single judge, who put his decision on the ground that the county 
commissioners had no authority but to tabulate the documents sent them as returns, 
declare the result, and issue certificates accordingly. 

Meantime, the 31st of October, the State canvassing board, having received no cer¬ 
tified returns from Silver Bow, sent a messenger to demand of the county clerk a 
properly certified copy of the abstract of the votes cast at said election as canvassed 
by the county canvassing board. This the clerk refused to give. But he gave them 
a statement dated October 31, 1889, signed by him, with the seal of the county, stat¬ 
ing the number of votes cast at the different precincts, including No. 34, the decision 
of the county board to strike out that precinct, and the pendency of the proceedings 
in court. They took this statement into consideration, declared the result, and issued 
their certificate, which appears in Appendix A.* 

We think that in this respect the State board did their duty as required by law, 
but we also think that the election held at precinct 34 was in fact irregular, illegal, 
and fraudulent, and that this appears from the records and from the undisputed 
facts furnished us by Messrs. Clark and Maginnis. 

Some of the irregularities would not alone have warranted the house of represen- 
tatives of Montana, when exercising its jurisdiction to judge of the election of its 
members, to set aside the real will of the duly qualified voters. But the whole history 
shows that the proceeding at precinct 34 had no relation whatever to the real wiil 
of duly qualified voters, but was fictitious, j>retended, and without validity either 
in form or substance. 

The statute required five judges of the election ; there were but three. The stat¬ 
ute required the clerks to perform certain important duties, deemed essential to 
secure the integrity of the election; among these were to keep the poll lists, enter 
upon them the name and number of each voter as he voted, and compare them when 
the voting was over and before the ballot box is opened. One of the clerks did not 
perform these duties at all. Only part of them, if any, were performed by the other. 
But they were performed in the clerks’ stead by one of the judges. 

The statute required that, as each voter cast his ballot, his name and number 
should be entered on the poll books, of which there are two. At the close of the poll 
these lists are to be compared with each other. If there be a mistake in either it is 
to be corrected and the books made to agree. When that is done the ballot box is to 
be opened and the ballots counted. If the number of ballots exceed the number of 
voters entered on the poll lists, one of the judges is to draw out ballots enough to 
remove the excess. The names of persons voted for and the number cast for each 
are then to be ascertained. One of the poll books is then to be forwarded to the 
county board and the other preserved with the ballots by one of the judges desig¬ 
nated for that purpose, to be inspected by any person who desires. This preserves a 
record not only of the persons voting, but of the order in which they voted, so that 
any false or fraudulent voter can be identified by the persons who preceded and fol¬ 
lowed him, and better remembered by election officers and bystanders. Now, from 
the copy of the poll list furnished us the miraculous circumstance is disclosed that 
the 174 voters of precinct 34 voted in alphabetical order. The names on the poll list 
proceed regularly from A to Z, except that the election officers head the list. There 
are five election officers. No. 6 is John A. Anderson, and No. 174 is Robert Young- 
berg. The intermediate names, though numbered in regular progression, follow 
each other alphabetically. This seems to us conclusive evidence that the whole pro¬ 
ceeding was manufactured. 


* The appendices are to be found in Sen. Rep. No. 538, 1st sess. 51st Cong. 




CLARK AND MAGINNIS VS. SANDERS AND POWER. 735 

It is suggested that this document, though it shows that the law was not com- 
jmed with, does not- necessarily indicate a fraudulent return; that the election offi¬ 
cers may have copied these names in advance from the registration, where they are 
entered alphabetically; and that this would only show a failure to understand the 
law. But it this were true the election officers would appear in their places in the 
list, and would not be found at the beginning. But the decisive answer to this sug¬ 
gestion is, that there were 182 persons on the registration and but 174 votes. If the 
suggestion were true, the names of those persons registered who did not vote would 
appear in their places on the list. They do not so appear, and there is not even a 
space where they should come in. In the registry, of which there is a copy, the Chris¬ 
tian name follows the surname. In the poll list the Christian names come first. In 
some names in the registry the initial only of the Christian name is given, while in 
the same name in the poll list the Christian name is given in full. In other cases 
this is exactly re\ ersed. 1 he names are di fierent in some cases where the same name 
is meant, e. g., Bonison in the registry is Borjesson in the poll list. These instances 
ot \ auation between the two, either in the Christian name or surname, are quite 
numerous. So that it seems clear that the poll list is not a transcript or copy of the 
registration. 

W e have also the extremely suspicious and unusual circumstance that while there 
were twenty-five different officers voted for, and also a vote for or against the consti¬ 
tution, every one of the 174 persons voted for every one of the officers and for or against 
the constitution. 

We have the further remarkable and suspicious circumstance that while the pro¬ 
posed constitution was supported by both parties in Montana, the vote against the 
constitution was the same, within one, as the Republican vote on the officers, where 
the vote was on party lines. 

It is also singular, and to us incredible, that while there were in the county of Sil¬ 
ver Bow about 7,000 votes so evenly divided between the two political parties, that 
in the case of every one of the candidates a change of less than 80 votes would have 
changed the majority from one side to the other, the voters of this new community 
at precinct 34, who must have assembled from various parts of the country, whose 
names as they appear upon the poll list indicate their descent from various nation¬ 
alities, should have divided, in any fair election, between the two political parties, 
in the proportion of 171 to 3. 

Further, the statute requires the canvass to be public. Section 1027 is as follows: 

“As soon as the polls of the election shall be finally closed, the judges shall imme¬ 
diately proceed to canvass the vote given at such election, and the canvass shall be 
public, and shall continue until completed.” 

An application was made to the district court for the second judicial district of 
Montana to test the title to the office of sheriff of the county of Silver Bow, which 
title depends on precisely the same facts as the election of representatives. The find¬ 
ings of the judge and the evidence before him are submitted to us by Messrs. Clark 
and Maginnis. It appears that from these findings that the election at 34 was held 
in a tent; that the officers adjourned for the canvass to a one-room house near by; 
that “at times” during the canvass the door of this room was locked; “that during 
a large part of the time no count was being made, some of the judges having gone 
to supper, and at the other times it was kept closed and locked to prevent drunken 
and semidrunken and boisterous individuals, who were searching for liquor, from 
obtrusively entering.” There were two windows in this room. One had a shade or 
cover over it. The lower sash of the other was covered with paper. Persons could 
readily look into the latter, by looking through the upper sash, which was uncov¬ 
ered. This had been the condition of the windows for a good while before the elec¬ 
tion. 

This was not, in our judgment, a public canvass within the meaning of the law. 

There is another matter which, if it were alone to decide the case, would require 
further examination and, perhaps, the taking of further testimony, but which, as it 
is left on the finding of the judge of the second district and the evidence which ac¬ 
companies it, is fatal to the claim of Democratic claimants to the disputed seats for 
Silver Bow. If the 171 votes from No. 34, Silver Bow, be counted for these claim¬ 
ants, and 3 votes from Silver Bow be countedfor their competitors, the former would 
have majorities, comparing in each case the highest Democrat with the lowest Re¬ 
publican, respectively, of 120, 95, 83, 70, and 11. So that to subtract these numbers 
from the vote of each would defeat them all. But it seems by the judge's report, 
and the evidence therewith submitted, that 48 unnaturalized aliens voted at No. 34, 
Silver Bow, and that 126 such persons voted at precinct 26. At said latter precinct 
the Democratic candidates for representative received about 135 votes and the Re¬ 
publican received about 32 votes, varying slightly in the cases of different candi¬ 
dates, but not enough to affect the result. Now, supposing all the Republican votes 
to have been cast by unnaturalized persons, there would be left at least 94 votes of 
that class which were cast for the Democrats at No. 26, in addition to the 45 cast at 


736 


SENATE ELECTION CASES. 


No. 34. This makes 139 such Democratic votes in all, or more than enough to change 
the result in all the disputed cases. 

The ordinance, section 6, provides that these officers shall he elected by “ the quali¬ 
fied electors” of tho Territory. Now, it appears that these voters declared their in¬ 
tention to become citizens of the United States. But it does not appear that they 
ever took an oath to support the Constitution and Government of the United States. 
When it was sought to establish their title to vote before the district court, in the 
above-named case, the former fact was shown, but there was no offer to show the 
latter. The contestant offered to show that no such oath was taken before the clerk 
who received their declaration, but the judge excluded the evidence. In fact, we 
presume nobody seriously believed such an oath was taken. If the case were to 
turn on this point we might give a further opportunity to show the fact if either 
party desired it. 

The Revised Statutes of the United States, section 1860, is as follows: 

“At all subsequent elections, however, in any Territory hereafter organized by Con¬ 
gress, as well as at all elections in Territories already organized, the qualification of 
voters and of holding office shall be such as may be prescribed by the legislative assem¬ 
bly of each Territory; subject, nevertheless, to the following restrictions on the power 
of the legislative assembly, namely: 

“First, the right of suffrage and of holding office shall be exercised only by citizens 
of the United States above the age of twenty-one years, and by those above that age 
who have declared on oath before a competent court of record their intentions to 
become such, and have taken an oath to support the Constitution and Government 
of the United States.” 

The enabling act, Statutes 1889, chapter 180, sections 3, 8, 9, provides: 

“ Sec. 3. That all persons who are qualified by the laws of said Territories to vote 
for representatives to the legislative assemblies thereof are hereby authorized to vote 
for and choose delegates to form conventions in said proposed States. 

“ Sec. 8 . And the constitutional conventions which may assemble in North Dakota, 
Montana, and Washington shall provide in like manner for submitting the constitu¬ 
tions formed by them to the people of said proposed States,respectively, for ratifica¬ 
tion or rejection at elections to be held in said proposed States on the said first Tues¬ 
day in October. 

“At the elections provided for in this section the qualified voters of said proposed 
States shall vote directly for or against the proposed constitutions, and for or against 
any articles or propositions separately submitted. The returns of said elections shall 
be made to the secretary of each of said Territories, who, with the governor and 
chief justice thereof, or any two of them, shall canvass the same; and if a majority 
of the legal votes cast shall be for the constitution the governor shall certify the re¬ 
sult to the President of the United States, together with a statement of the votes 
cast thereon and upon separate articles or propositions, and a copy of said constitu¬ 
tion, articles, propositions, and ordinances. 

“ Sec. 9. And the Representatives to the Fifty-first Congress, together with the 
governors and other officers provided for in said constitutions, may be elected on the 
same day of the election for the ratification or rejection of the constitutions; and 
until said State officers are elected and qualified under the provisions of each consti¬ 
tution and the States, respectively, are admitted into the Union, the Territorial 
officers shall continue to discharge the duties of their respective offices in each of 
said Territories.” 

The revised statutes of Montana, passed in 1888, reenacting the provision of tho 
Montana statute of 1883, declares that all male persons of the age of twenty-one 
years who have declared their intention of becoming citizens, having other prescribed 
qualifications as to residence, etc., shall be entitled to vote. The constitution of 
Montana provides that no person but citizens of the United States shall vote, but 
that no person w ho has the right at the time of the adoption of the constitution shall 
be deprived of it. 

It seems to us clear that the above-cited law of the United States, which provides 
that the right of suffrage shall only be enjoyed by aliens who have taken the oath to 
support the Constitution, was the law of Montana, and governed the election of 
State officers and the vote for or against the constitution. The opposing view is 
stated by the judge of the district court as follows: 

“ Counsel for contestant seems to think that the court was perhaps misled in mak¬ 
ing its ruling; that the oath provided by the laws of the United States relating to 
suffrage in the Territories, to be taken by an alien, in addition to his declaration, to 
make him a qualified elector, did not apply at the election held the first day of Octo¬ 
ber, 1889. The court reiterates the opinion that Congress having delegated to the 
constitutional convention of Montana the right to provide for said election, and had 
prescribed the qualifications of voters thereat, that when such convention provided 
by ordinance for said election and “that the persons who are then qualified electors, 
under the laws of this Territory, shall be qualified to vote at said election,” it referred 


CLARK AND MAGINNIS VS. SANDERS AND POWER. ?37 


to the qualifications prescribed by tbe Territorial legislature, and not to those pre¬ 
scribed by any laws of the United States relating to the Territory.” 

We can not adopt this view, or suppose that the convention of Montana in its ordi¬ 
nance, when it speaks of the “laws of this Territory,” refers to an act which the 
Territorial legislature had no authority to pass and which never took effect. 

The suggestion has been made that, to elect a Senator, there must be in existence 
a legislature exercising, or at least capable of exercising, the law-making function; 
and that when this function is interrupted or abdicated, or has never been set in 
motion because either house refuses to recognize and act in concert with the other, 
or because the governor refuses to treat either as possessed of legislative authority, 
there is, in fact, no legislature in the constitutional sense, and, therefore, no body 
competent to appoint a Senator. In Montana, the governor declined to recognize 
the Iron Hall house, and the senate, which was evenly divided politically, did not 
recognize either Iron Hall or Court House. 

The suggestion is ingenious, but we do not think it will bear examination. The 
governor is no part of the law-making power. The legislature may pass laws, if he 
do not assent to them. He has only the power to require the legislature to recon¬ 
sider a bill or resolve they have once passed. On such reconsideration a two-thirds 
vote, instead of a bare majority, is essential to the enactment. (Constitution of Mon¬ 
tana, Art. 5, Sec. 29.) 

It would be a strange condition of things if the governor of a State, or the Presi¬ 
dent of the United States, could, by a simple refusal of recognition, suspend all 
legislative functions, so that bills presented to him should not become laws through 
his inaction, or be passed over his veto. Such a theory, which rests wholly on impli¬ 
cation, would, if adopted, neutralize plain provisions of the Constitution. 

Neither house of the legislature, when once lawfully constituted, can abandon its 
own authority. Much less can it take away the authority of the other. Neither 
House of Congress can even adjourn for more than three days without the consent of 
the other. A like provision is in the constitution of Montana. This theory enables 
one house, or the executive, to overthrow at once all the constitutional securities 
for the preservation of the legislative power. It is utterly opposed to the act of 
Congress prescribing the manner of the election of Senators (Revised Statutes, sec¬ 
tions 14 to 19). If no concurrent election be had, “the members of the two houses 
shall convene in joint assembly.” 

This is intended to put it out of the power of a majority of either house to prevent 
a choice of Senator. This provision we think clearly constitutional. It is in accord¬ 
ance with the legislative usage in the matter of electing officers whose choice may 
be prevented altogether if two distinct bodies must concur to produce a valid 
result. 

It is said that the strife in Montana between these two rival bodies, and the conduct 
of some of the elected members in abandoning their seats is to be deplored and dis¬ 
approved; and that it will be a useful lesson to the people of that State to refuse 
them representation in the Senate until it be claimed by persons whose election is 
not attended by such proceedings. We do not conceive that we have the right to 
deny their seats to persons lawfully chosen for the sake of teaching lessons to any¬ 
body, or for the sake of showing our disapprobation of the conduct of anybody. 
But we also think it would encourage such proceedings in future and hold out the 
prospect of reward to those who engage in them, if the lawful will of the majority 
could be defeated by the lawless and revolutionary methods which seem to have been 
resorted to by the minority. 

We report the accompanying resolves: 

Resolved, That William A. Clark is not entitled to be admitted to a seat in the 
Senate from the State of Montana. 

Resolved, That Martin Maginnis is not entitled to be admitted to a seat in the 
Senate from the State of Montana. 

Resolved, That Wilbur F. Sanders is entitled, upon the merits of the case, to be 
admitted to a seat in the Senate from the State of Montana. 

Resolved, That Thomas C. Power is entitled, upon the merits of the case, to be 
admitted to a seat in the Senate from the State of Montana. 

VIEWS OF THE MINORITY. 

The undersigned, a minority of the Committee on Privileges and Elections, do not 
concur in the result arrived at by the majority of the committee in the ease of the 
disputed election of Senators from the State of Montana, as embodied in the resolu¬ 
tion reported by them to the Senate, and they respectfully submit the following re¬ 
port : 

The admitted or established facts of the case, and pertinent to its correct deter¬ 
mination, are believed by the undersigned to be: 

(1) That the act of Congress approved February 22, 1889, commonly called “ an 

S. Doc. 11-47 



738 


SENATE ELECTION CASES. 


enabling act,” prescribing the conditions for the formation and admission of certain 
States into the Union, and applicable to the people of the Territory and State of Mon¬ 
tana, provided, among other things, as follows: 

“Sec. 24. That the constitutional conventions may, by ordinance, provide for the 
election of officers for full State governments, including members of the legislature 
and Representatives in the Fifty-first Congress; but said State governments shall 
remain in abeyance until the State shall be admitted into the Union respectively as 
provided in this act. In case the constitutions of any of said proposed States shall 
be ratified by the people, but not otherwise, the legislature thereof may assemble, 
organize, and elect two Senators of the United States; and the governor and secre¬ 
tary of state of such proposed States shall certify the election of the Senators and 
Representatives in the manner required by law; and when such State is admitted 
into the Union the Senators and Representatives shall be entitled to be admitted to 
seats in Congress, and to all the rights and privileges of Senators and Representatives 
of other States in the Congress of the United States; and the officers of the State 
governments formed in pursuance of said constitution, as provided by the constitu¬ 
tional convention, shall proceed to exercise all the functions of such State officers; 
and all laws in force made by said Territories at the time of their admission into the 
Union shall be in force in said States, except as modified or changed by this act, or 
by the constitution of the States respectively.” 

Section 9 of the same act provides: 

“Sec. 9. That until the next general census or until otherwise provided by law, said 
States shall be entitled to one Representative in the House of Representatives of the 
United States, except South Dakota, which shall be entitled to two; and the Repre¬ 
sentatives to the Fifty-first Congress, together with the governors and other State 
officers provided for in said constitutions, maybe elected on the same day of the elec¬ 
tion for the ratification or rejection of the constitutions; and until said State offi¬ 
cers are elected and qualified under the provisions of each constitution, and the 
States respectively are admitted into the Union, the Territorial officers shall continue 
to discharge the duties of their respective offices in each of said Territories.” 

And in section 8 of the same act, among other things, it is provided that: 

“At the elections provided for in this section”— 
that is the elections for the ratification or rejection of the constitutions proposed by 
the conventions of the several Territories embraced in the act— 

“the qualified voters of said proposed States shall vote directly for or against the pro¬ 
posed constitution, and for or against any articles or propositions separately submit¬ 
ted. The returns of said election shall be made to the secretary of each of the said 
Territories, who, with the governor and chief justice thereof, or any two of them, 
shall canvass the same.” 

(2) That the constitutional convention of the proposed State of Montana, which 
was elected and convened pursuant to the provisions of said “enabling act,” passed 
an ordinance as it was authorized to do, called “Ordinance 2,” in which it provided 
for an election to be held throughout the Territory of Montana on the first Tuesday 
of October, 1889, for the ratification or rejection of the' proposed constitution by 
the qualified electors under the laws of the Territory, and to be conducted by the 
same judges, and in the same manner and at the same polling places, as was pro¬ 
vided by the laws of the Territory regulating elections, the fifth, sixth, and eighth 
sections of said ordinance being as follows: 

“ Fifth. The votes cast at said election for the adoption or rejection of said con¬ 
stitution shall be canvassed by the canvassing boards of the respective counties not 
later than fifteen days after said election, or sooner if the returns from all of the pre¬ 
cincts shall have been received and in the manner prescribed by the laws of the 
Territory of Montana for canvassing the votes at general elections in said Territory, 
and the returns of said election shall be made to the secretary of the Territory, who 
with the governor and the chief justice of the Territory, or any two of them, shall 
constitute a board of canvassers who shall meet at the office of the Secretary of the 
Territory on or before the thirtieth day after the election, and canvass the votes so 
cast and declare the result. 

“ Sixth. That on the first Tuesday in October, 1889, there shall be elected by the 
qualified electors of Montana a governor, a lieutenant-governor, a secretary of state, 
an attorney-general, a State treasurer, a State auditor, a State superintendent of 
public instruction, one chief justice and two associate justices of the supreme 
court, a judge for each of the judicial districts established by this constitution, a 
clerk of the supreme court, and a clerk of the district court in and for each county 
of the State, and the members of the legislative assembly provided for in this consti¬ 
tution. The terms of officers so elected shall begin when the State shall be admitted 
into the Union and shall end on the first Monday in January, 1893, except as other* 
wise provided. 

“Eighth. The votes for the above officers shall be returned and canvassed as is 
provided by law, and returns shall be made to the secretary of the Territory and 


CLARK AND MAGINNIS VS. SANDERS AND POWER. 739 


canvassed in tlie same manner and by the same hoard as is the vote upon the con¬ 
stitution, except as to clerk of the district court.” 

(3) That the general laws of the Territory of Montana in regard to elections pro¬ 
vide as to the qualifications of electors as follows: 

“Sec. 1007. All male citizens of the United States above the age of twenty-one 
years, and all male persons of the same age who shall have declared their intention 
of becoming citizens, and who, under existing laws of the United States, may ulti¬ 
mately become citizens thereof, shall be deemed electors of this Territory, and be 
entitled to vote for Delegate to Congress and for Territorial, district, county, pre¬ 
cinct, and municipal officers, provided they shall have resided in the Territory six 
months, and in the county where they may offer to vote, thirty days next preceding 
the day of election.” 

The judicial function of the judges of election is prescribed by section 1019 of the 
same laws, as follows: 

“Sec. 1019. The judges to whom any ticket may be delivered shall, upon the 
receipt thereof, pronounce with an audible voice the name of the elector, and if no 
objections be made to him and the judges shall be satisfied that the elector is 
legally entitled to vote, he shall immediately put the ballot in the box, without 
inspecting the name thereon. The clerk of the election shall enter the name of the 
elector and number in the poll book.” 

The general election laws further provide: 

“Sec. 1027. As soon as the polls of the election shall be finally closed, the judges 
shall immediately proceed to canvass the vote given at such election, and the can¬ 
vass shall be public, and shall continue until completed. 

“Sec. 1028. The canvass shall commence by a comparison of the poll lists from 
the commencement and the correction of any mistakes that may be found therein, 
until they shall be found to agree; the box shall then be opened and the ballots 
found therein counted by the judges, unopened, except to ascertain whether each 
ballot is single; and if two or more shall be found £0 folded together as to present 
the appearance of a single ballot, they shall be laid aside until the count of the 
ballot is completed, and if, on a comparison of the count with the poll lists and the 
appearance of such ballots, a majority of the judges shall be of the opinion that 
the ballots thus folded together were voted by one elector, they shall be rejected. 

“ Sec. 1029. If the ballots in the box should be found to exceed in number the 
whole number of votes in the poll lists, they shall be placed in the box (after being 
purged after the manner above stated), and one of the judges shall publicly draw 
out and destroy therefrom so many ballots unopened as shall be equal to such excess. 

“Sec. 1030. The ballots and the poll lists agreeing, or being made to agree, the 
board shall then proceed to count and ascertain the number of votes cast, and the 
clerks shall set down in their poll books the names of every person voted for, and at 
full length, the office for which such person received such votes, and the number he 
did receive, the number being expressed at full length, such entry to be made, as 
near as circumstances will admit, in the following form, to wit: 

“At an election held at the house of A B, in the township or precinct of-, in 

the county of-and the Territory of Montana, on the-day of-, A. D. 

18—, the following-named persons received the number of votes annexed to their 
respective names for the following described offices, to wit: 

“A B had-votes for Delegate to Congress. 

“ J D had-votes for member of the legislative council. 

“ R L had-votes for member of the house of representatives. 

“(And in like manner for any other person voted for.) 

“Certified by us. Attest: 

“A B ) MN) 

“and / Clerks of election. O P ; Judges of election. 

“CD) Q R) 

“ Sec. 1031. The judges of election shall then inclose and seal one of the poll hooks, 
under cover, directed to the clerk of the board of county commissioners of the county 
in which such election was held, and the packet thus sealed shall within three days 
from the closing of the polls, be conveyed by one of the judges or clerks of election, 
to be determined by lot, to the post-office nearest the*house in which said election 
for such precinct was held, and register and mail the same to the clerk of the board 
of county commissioners, and the other poll books, together with the ballot box, 
shall be deposited with one of the judges of election, to be determined by lot, if not 
otherwise agreed upon, and the said poll book shall be open to the inspection of any 
elector at any time thereafter who may desire to examine the same. 

“ Sec. 1032. If any judge or clerk, after being selected by the judges of election to 
convey the poll books of such election to the post-office nearest the house in which 
said election was held, and mail the same, as provided for in section 1031 of this 
chapter, shall fail, refuse, or neglect to convey and mail the said poll books, safe with 
seal unbroken, he shall for every such offense, when convicted thereof, pay the sum 
of $500, and be imprisoned in the county jail for a period not exceeding three years, 









740 


SENATE ELECTION CASES. 


said fine to be recovered in a civil action in the district court in the name of the 
county commissioners. 

“ Sec. 1033. After the fifteenth day after the close of any election held under the 
provisions of this chapter, or sooner, if all the returns shall he received, the chair¬ 
man of the board of county commissioners, or in his absence any other member of the 
board, shall, taking to his assistance the probate judge or a justice of the peace, and 
one other officer of the county, or any county officer, proceed to open the returns and 
make abstracts of the votes. Such abstracts of votes for Delegate to Congress shall 
be on one sheet; the abstract of votes for members of the legislative assembly shall 
be on another sheet; and the abstract of votes for Territorial and district officers 
shall be on another sheet; and the abstracts of votes for county and township officers 
shall be on another sheet. And it shall be the duty of the clerk of said board of 
county commissioners immediately to make up a certificate of election to each of the 
persons having the highest number of votes for members of the legislative assembly, 
county, and township officers, respectively, and to deliver such certificate to the 
persons entitled to them by mailing the same in ‘registered 7 letters to the address 
of such persons, respectively: Provided, That when a tie vote shall exist between 
two or more persons for any district or county office, the clerk of the board of county 
commissioners shall immediately give notice of another election, giving at least ten 
days 7 notice. And it shall be the duty of the clerk of the board of county commis¬ 
sioners of such county, on receipt of the returns of any general or special election, to 
make out his certificate, stating therein the compensation to which the judges and 
clerks of the election shall be entitled for their services, and lay the same before the 
county commissioners at their next session, and the board of county commissioners 
shall order the compensation aforesaid to be paid out of the county treasury. 

Note.— Last section preceding is from act of February 15,1877. 

“Sec. 10 34. The clerk of the board of county commissioners, immediately afte 
making out the abstract of votes given in his county, shall make a copy of each of 
said abstracts, and transmit the same by mail as a registered package to the auditor 
of the Territory at the seat of government, and it shall be the duty of the United 
States marshal and treasurer of the Territory, in the presence of the governor, to 
proceed within thirty days after the election, and sooner if the returns be received, 
to canvass the votes given for Delegates to Congress: Provided, That in case the 
United States marshal and treasurer can not agree as to the number of votes that 
two or more persons are entitled to for Delegate to Congress, then in that event the 
governor shall decide who has the highest number of votes, and shall issue a certifi¬ 
cate of election to such person, under his hand and the seal of the Territory, counter¬ 
signed by the secretary. In case there shall be no choice by reason of two or more 
persons having an equal and highest number of votes, then the governor shall by 
proclamation order anew election. 77 

The following provision is also important in this connection: 

“ Sec. 1325. The certificate of election from the clerk of the proper county shall 
be held and considered as prima facie evidence of the right to membership of the 
person certified therein to be elected for all purposes of organization of either branch 
of the legislative assembly. 77 

That these laws were in force in the Territory of Montana, on the first Tuesday oi 
October, 1889, unless repealed or superseded by the act of Congress or by the ordi¬ 
nances of the convention. That there was also a statute of said Territory then in 
force of March 8,1889, to provide for registration of voters and prevent fraud, pur¬ 
suant to the provisions of which the election of October 1, 1889, was held. This act 
provided, by section 6 of the same, that every voter when he registers, shall make 
oath before the registering agent specifically to each and every qualification required 
by law. As an additional safeguard sections 7 and 8 of the act require that when 
the voter seeking registry is not known to the register to be entitled to vote, in 
addition to the oath prescribed by section 6, the register shall, by investigation and 
by personal examination, specifically and separately ask certain questions to be 
answered by the voter under oath, set forth in these sections, which cover every 
qualilication of a legal voter. 

In the case of naturalized persons the facts necessary are required, at the instance 
of the register, to be proven by a witness in addition to a personal examination of 
the voter. The registry itself is a thorough challenge and examination of every voter 
whose name is entered thereon. This registry is publicly posted for seven days or 
more before the election for further challenge, if any cause for challenge be known 
to any one. 

That in precinct 34 of Silver Bow County, as to which alone inquiry is material, 
all these requirements were fully complied with, and the registry list of 182 voters 
was perfected, filed, and placed in the hands of the election officers. 

(4) That the election on the ratification of the constitution and for State and county 
officers and members of assembly was conducted in said precinct 34 on the first Tues¬ 
day of October, 1889, as elsewhere in said Territory, under the Territorial act of 
March 15, 1889, which is a carefully considered and revised form of the Australian 


CLARK AND MAGINNIS VS. SANDERS AND POWER. 


741 


ballot system. The ballots were prepared at public expense, by the county clerk, 
with all the careful circumspection required by law. At the proper time he placed 
in the hands of the judge of the election authorized to receive them, 800 ballots, 
being 200 ballots for every 50 registered voters or fraction thereof. One hundred and 
seventy-tour ot these ballots were stamped and delivered by the proper officers of the 
election, 1 to each voter, as the act provided. Twenty-six of the ballots were used by 
the election board forpostingup accordingtolaw and supplying such as were destroyed 
by the wind after they had been posted for public examination. Six hundred were re¬ 
turned after the election to the county clerk. In fact every requirement of the law 
was caretully and honestly carried out. Every precaution that human ingenuity 
has been enabled to devise to secure the freedom and purity of the ballot, and to 
exclude fraud or corruption, is shown by the evidence to have been vigilantly and 
carefully observed. The count ot' the ballots began at the proper hour in a tent 
where the election was held, in which there was no tire. About 11 o'clock p. m., the 
wind having arisen and the tent becoming very cold, the boxes and ballots were 
removed into a room in a house on the same lot and almost in contact with the tent 
in which the counting had been begun, and the count was there finished. 

The poll list showed 174 names. The ballots deposited in the box showed 174 
votes, and every ballot was regularly and officially stamped. The proper and truth¬ 
ful returns were prepared and executed. They were sealed up by the board, and 
by one of their number delivered personally, with seal unbroken, to the clerk of the 
board of county commissioners, there being no mail facilities nearer the place of 
election than the place of delivery to the clerk. The returns thus prepared and de¬ 
livered were opened by the county canvassing board. When they were opened the 
vote cast for the candidates of one of the parties varied between 168 and 172 votes. 
The votes of the other party varied from 2 to 6. 

That the effect of this majority was to produce a change in the result as to several 
of the county officers and as to the five representatives. 

That the change of the five representatives was sufficient to give a legislative ma¬ 
jority to the joint assembly which chose Messrs. Clark and Maginnis as United 
States Senators, and would make the body purporting to be a house of representa¬ 
tives, which assembled in the court-house at Helena, the true and lawful house of 
representatives of the State of Montana. 

(5) That under the statutes of Montana the county clerks of the several counties 
are made ex officio clerks of the boards of county commissioners of their several counties. 

That precinct 34 of Silver Bow County was duly and legally constituted by the 
board of county commissioners of said county; that all of said commissioners were 
of the Republican party, and that the registry agents appointed by them for all the 
election districts of said county, including precinct 34, were also of that party, as 
were also two out of the three judges of election appointed for every voting pre¬ 
cinct in said county, including precinct 34. That in due time after the said elec¬ 
tion the county clerk of Silver Bow County, as 4x officio clerk of the board of county 
commissioners, received the official returns of the election from all the voting pre¬ 
cincts of said county, including said precinct 34, the returns of which precinct were 
delivered to said clerk by one of the judges of the election in a sealed envelope, to¬ 
gether with all the official ballots which were not used at said election. 

That afterwards, on the 11th day of October, 1889, the chairman of the board of 
county commissioners of Silver Bow County, calling to his assistance another county 
commissioner and a probate judge, and appointing the clerk of the board of county 
commissioners and another person clerks, proceeded to perform the duties required 
of them by law, that is, to open the returns from the several voting precincts of said 
county, ail of which had been duly received and laid before them by the clerk of 
the board of county commissioners, as required by law, and to “make abstracts of 
the votes.” That to open the returns so laid before them, and make abstracts of the 
votes, was the only duty imposed, and the only authority conferred upon said offi¬ 
cers by law, unless the duty of making returns of said abstracts to the secretary of 
the Territory, prescribed by ordinance 2 of the constitutional convention be taken 
to belong to them instead of the clerk of the board of county commissioners. 

That the canvass of said vote, or the making of the abstracts of the precinct 
returns, including precinct 34, was concluded about 5 o'clock p. m., Saturday even¬ 
ing, October 12. 

That during the progress of said canvass, counsel representing the Republican 
party appeared before the board and objected on various grounds of alleged irregu¬ 
larity to the counting of the returns of the votes cast at various Democratic pre¬ 
cincts, including precinct 34. That counsel for the Democratic candidates also 
appeared before the board and denied the jurisdiction of the board to change the 
abstract of the votes made by elimination of any of the precincts. The ballot 
box of precinct 34 was produced before the board by the proper custodian thereof, 
and the demand was made by the counsel of the Democratic candidates, under 
protest as to the right of the board to go behind the returns from said election 
judges of said precinct, that the same should be opened and the votes inspected 


742 


SENATE ELECTION CASES. 


and counted. This the board refused to do, and on the evening of October 14, 
overruling the objections to all the returns from all the other precincts by a ma¬ 
jority vote, ordered the returns from precinct 34 and the votes cast thereat to be 
excluded from the abstract, which had been previously made, and directed a red line 
to be drawn through the vote of said precinct so entered upon the abstract sheets. 

That immediately after the decision thus excluding the returns and refusing to 
count the votes of said precinct 34, and before the adjournment of the board, and 
while the clerks were engaged in their work (see certificate and affidavit of C. F. 
Booth, clerk, etc.), alternative writs of mandamus in the name of the Territory of 
Montana—one at the relation of John J. McHatton, Democratic candidate for dis¬ 
trict judge for Silver Bow County, and the other at the relation of some of the 
Democratic candidates for the house of representatives, issuing from the district 
court of the Territory for said county having full jurisdiction in the premises—were 
duly and lawfully served on all the members of said canvassing board, commanding 
them to proceed and count the votes of said precinct 34, and make them part of the 
abstract of votes for the said county for all persons voted for at said election, or 
show cause to the court on the 28th day of October, 1889, at 10 o’clock a. m., why 
they had not done so. 

That on the 21st day of October, 1889, C. F. Booth, the said county clerk, sent a 
communication to the secretary of the Territory, one of the Territorial board of 
canvassers, and w hich the said board admit they had before them at the time they 
made their finding as to the result of the election in Silver Bow County, in which, 
after reciting in substance the foregoing facts, he concludes as follows: 

“That by reason of said order from the district court the abstract of votes for said 
county is incomplete, and by reason of the fact that said abstract of votes is not 
complete I am unable to forward the copy of such abstract as is required by law to 
the secretary of the Territory, and that I shall be unable to forward such copy until 
after the 7th day of November, 1889.” 

That after due proceedings, pleadings, and hearing of parties in the suit at the 
relation of John J. McHatton, a judgment for a peremptory writ of mandamus was 
made and entered on the 31st day of October, 1889, as follows: 

“ This cause coming on tor hearing upon the relator’s motion for judgment upon 
the petition, order, and writ, and answer and return of defendants: It is ordered, 
adjudged, and decreed that said motion be sustained, and that defendants had no 
power or authority to exclude said precinct No. 34, and that their action was illegal 
and void, and that the returns, including said precinct, constitute the true and cor¬ 
rect result of said election, and that said relator have liis peremptory writ of mandate, 
as prayed for in his petition, and recover his cost and disbursement in this behalf 
expended. This 31st day of October, 1889.” 

That in like manner, in the suit at the relation of Thomas F. Courtney et al., was 
rendered and entered the following judgment on the 1st day of November, 1889: 

“In the district court of the second judicial district of the Territory of Montana in 

and for the county of Silver Bow. 

“The Territory of Montana exrel. Thomas F. Courtney, A. M. Day, A. M. Dessault, 

John W. Galligan, and Jos. Hogan v. William M. Jack, W. E. Hall, and Caleb E. 

Irvine, constituting the board of canvassers of Silver Bow County, for an election 

held on the first Tuesday of October, 1889; and Charles F. Booth, clerk of the 

county commissioners for said county. 

“judgment. 

“ Be it remembered that this cause came on for hearing upon the relators’ motion 
for judgment upon the petition, order, and alternative writ and answer and return 
of the defendants, when it was 

“ Ordered, adjudged, and decreed by the court that said motion be sustained, and 
that defendants, William M. Jack, William E. Hall, and Caleb E. Irvine, the can¬ 
vassing board aforesaid, had no power or authority to exclude the votes as shown 
by the returns from said precinct number 34, in said county, and that their action 
therein was illegal and void, and that the returns, including the said precinct, con¬ 
stitute the true and correct result of said election; and that said relators have their 
peremptory writ of mandate, as prayed for in their petition. 

“And it is further ordered, adjudged, and decreed that it is the duty of the said 
clerk of the said county commissioners to issue a certificate to relators, as prayed for 
in said petition and affidavit, and that a peremptory writ of mandate issue to compel 
him to issue said certificates, and that said relators recover cost and disbursements 
in this behalf expended. This first day of November, 1889. 

“S. DE WOLFE, 

“Judge Second Judicial District Court in 

“and for Silver Bow County, Montana. 

(Endorsed:) “Filed November 1, 1889. Wellington Napton, clerk, by (signed) 
Will L. Clark, deputy clerk.” 


CLARK AND MAGINNIS VS. SANDERS AND POWER. 


743 


That notice of appeal was given by the counsel for respondents in both cases, hut 
said appeals were not perfected, if at all, until the 7th day of November, 1889, by 
the filing of a bond or undertaking, and on that day peremptory writs of mandate 
in pursuance of said several judgments were issued and duly served by the proper 
officer on a majority of the members of said county board of canvass, one of said 
members, as appears by the return of the sheriff, being absent from the Territory. 

(6) That the majority of said board, in obedience to the commands of said writs 
of peremptory mandamus, did, on the said 7th day of November, 1889, meet and pro¬ 
ceed to canvass and count, and did in fact canvass and count, the votes cast at s.aid 
precinct 34, as shown by the said returns thereof, for all the said relators, and made 
them a part of the abstract of votes for said county; and the clerk of said board of 
county commissioners did on the same day, in obedience to one of said writs, issue 
and deliver to the relators therein their certificates of election to the office of rep¬ 
resentative in said legislative assembly, and also, in obedience to the other of said 
writs, issue and deliver to the said John J. McHatton, the relator therein, his certifi¬ 
cate of election to the office of district judge. 

(7) It also appears by the affidavit of the said Charles F. Booth, county clerk,that 
after the rendition of the judgment of the court in said mandamus proceedings, ad¬ 
judging that the rejection by the board of county canvassers of Silver Bow County, 
of the returns from said precinct 34, was illegal and void, he forwarded to the Ter¬ 
ritorial board of canvassers at Helena the abstract of the returns from all the vot¬ 
ing precincts of said county, including said precinct 34, with a certified copy of said 
judgment attached thereto. 

The following is a copy of said abstract, with the certificate of said Booth as 
county clerk attached: 

Copy of correct returns from, cleric of county board of canvassers. 




For State senator. 


Precinct— 

Charles W. 
Goodale. 

Daniel J. 
Hennessy. 

ft 

0 £ 
o u 

Joseph K. 
Clark. 

Thomas F. 
Courtney. 

K 

oS 

P 

S 

< 

Peter R. Dol¬ 
man. 

si 

1 " 

~P 

- 

Henry L. 

Frank. 

No. 1, 
o 

W all? fvrvillft_____....... 

217 

214 

213 

241 

194 

199 

224 

203 

214 

Walkerville.......... 

87 

116 

96 

116 

100 

163 

97 

103 

104 

if 

Centerville.......__ 

165 

110 

178 

99 

95 

92 

173 

95 

88 

4, 

5, 

6, 

7, 

8, 
9, 

10, 

11 

Centerville.. 

203 

430 

205 

422 

405 

404 

208 

408 

407 

Butte. 

164 

113 

162 

115 

106 

107 

169 

102 

112 

Bntte. 

115 

241 

122 

244 

223 

229 

122 

225 

226 

Butte . 

154 

150 

154 

156 

143 

129 

163 

127 

146 

Butt©. 

72 

135 

74 

128 

124 

120 

72 

120 

121 

Butte . 

185 

227 

188 

227 

206 

197 

199 

193 

202 

Butte ....... 

155 

240 

157 

236 

216 

221 

157 

219 

229 

Butte . 

123 

109 

124 

113 

97 

93 

124 

92 

302 

12, 

13, 

14, 

15, 

16, 

17, 

18, 

19, 

20, 
21, 
22 

Butte. 

215 

253 

224 

244 

222 

231 

217 

243 

234 

Butte ........._....._ 

179 

201 

170 

206 

187 

180 

189 

174 

198 

Butte . 

96 

101 

104 

99 

86 

86 

107 

92 

85 

Parrot,t, __....._......... 

201 

169 

209 

167 

147 

165 

207 

156 

166 

Afenderville ......... 

190 

79 

197 

75 

67 

82 

192 

73 

68 

Afp^rlprville t r,_ _ _ _ ___ 

112 

62 

116 

60 

56 

69 

111 

61 

59 

South Butte_ ____ 

142 

176 

161 

161 

144 

157 

163 

150 

151 

Blacktail _ _____........... 

28 

32 

31 

33 

24 

26 

23 

45 

29 

Coiitp'nTii Brewery_ ____ 

86 

7G 

84 

78 

67 

68 

85 

71 

71 

Rocker . TTT _____ 

93 

25 

89 

27 

26 

25 

82 

27 

26 

Rn r] i n <rt,nn _................... 

144 

63 

142 

60 

55 

63 

142 

55 

57 

23, 

24, 

Silver Bow ____ 

11 

23 

13 

22 

19 

18 

11 

18 

19 

Silver Bow »Tnnotion ... 

11 

22 

18 

17 

20 

17 

14 

17 

1» 











zo, 

26, 

27, 

28, 

29, 

30, 

31, 

32, 

33, 
34 

ATp.Civppi’s 'VVnnrl Camp ....... 

29 

153 

28 

157 

136 

148 

27 

146 

144 

r^Arma/n rVn 1 r»/h ____ 

3 

10 

3 

12 

9 

9 

2 

8 

10 

Norton (rnleh ____............... 

16 

3 

16 

14 

5 

2 

17 

3 

3 

__...._...... 

9 

16 

10 

16 

15 

17 

9 

15 

17 

Divide __............... 

11 

18 

20 

11 

14 

11 

15 

11 

13 

AT Psl rnsp, _ r _ _ T _ ........................ 

34 

28 

34 

28 

19 

27 

35 

24 

25 

,^na,Ti anloh _.................. 

7 

3 

8 

3 

3 

3 

7 

2 

2 

mippPT AT in p ____ 

6 

5 

6 

5 

5 

5 

6 

5 

5 


3 

171 

5 

171 

171 

171 

3 

171 

171 













3, 266 

3,768 

3, 361 

3, 753 

3,406 3,474 

3,367 

3, 454^3,522 


* No polls held. 



























































744 


SENATE ELECTION CASES. 


Copy of correct returns from cleric of county board of canvassers Continued.. 


Precinct— 


No. 1, 

2 , 

3, 

4, 

5, 

7, 

8 , 

9, 

10 , 

U, 

12 , 

13, 

14, 

15, 

16, 

17, 

18, 

19, 

20 , 


Walkerville ... 
Walkerville ... 
Centerville .. 
Centerville .... 
Butte. 


Butte.. 

Butte.. 

Butte. 

Butte. 

Butte. 

Butte.. 

Butte.. 

Butte.. 

Butte.. 

Parrott... 
Meaderville.... 
Meaderville.... 
South Butte .. 

Blacktail. 

C entennial 
Brewery .... 

21, Rocker. 

22, Burlington .... 

23, Silver Bow ... 

24, Silver Bow 

Junction.... 

25, 6r eg sons 

Springs*.... 

26, McCunes Wood 

Camp. 

27, German Gulch 

28, Norton Gulcli. 

29, Feeley. 

30, Divide. 

31, Melrose. 

32, Soap Gulch ... 

33, Clipper Mine . 

34, Butte and Gal¬ 

latin R. R., 


For members of the legislative assembly. 


John W . 
Gilligan. 

Frank H. 
Hoffman. 

Joseph Hogan. 

James H . 

Monteitk. 

d 

4= ® 

© P 

r—< 

John J . 

O’Meara. 

William H. 

Roberts. 

Leopold F. 

Schmidt. 

Newell J. 

Scott. 

Thomas Stur- 

tidge. 

William 

Thompson. 

Abraham N. 

Yoder. 

202 

225 

206 

227 

216 

195 

222 

199 

213 

213 

225 

212 

160 

96 

109 

94 

92 

98 

93 

105 

96 

91 

97 

90 

94 

171 

95 

164 

161 

96 

169 

94 

163 

180 

174 

170 

407 

210 

407 

203 

195 

399 

204 

401 

195 

211 

200 

191 

105 

169 

104 

169 

152 

100 

161 

100 

160 

155 

163 

153 

232 

119 

222 

123 

114 

227 

121 

231 

120 

119 

123 

112 

129 

154 

129 

166 

140 

123 

158 

135 

152 

140 

165 

150 

117 

76 

122 

77 

76 

115 

74 

121 

75 

74 

77 

72 

202 

190 

190 

209 

179 

186 

192 

204 

188 

184 

208 

183 

224 

156 

219 

158 

142 

215 

153 

229 

143 

136 

155 

141 

88 

126 

92 

130 

125 

87 

129 

100 

128 

121 

131 

127 

228 

230 

220 

216 

205 

222 

227 

229 

219 

211 

223 

213 

178 

180 

171 

175 

172 

175 

174 

184 

173 

148 

185 

161 

89 

106 

84 

105 

96 

86 

101 

90 

97 

96 

103 

105 

159 

201 

158 

202 

200 

154 

195 

168 

202 

194 

199 

195 

68 

195 

70 

195 

189 

71 

192 

70 

196 

189 

191 

187 

59 

110 

60 

102 

105 

56 

107 

57 

109 

112 

115 

105 

147 

187 

149 

158 

149 

151 

164 

150 

156 

149 

159 

148 

27 

30 

27 

28 

22 

29 

28 

28 

22 

23 

25 

22 

68 

85 

72 

83 

81 

66 

81 

79 

85 

81 

86 

80 

28 

83 

28 

80 

82 

27 

89 

31 

79 

81 

81 

82 

57 

141 

62 

136 

130 

52 

136 

57 

132 

129 

135 

133 

21 

11 

20 

15 

13 

17 

13 

23 

11 

15 

11 

14 

17 

15 

18 

16 

12 

17 

16 

17 

12 

11 

14 

11 

151 

32 

153 

29 

29 

133 

32 

154 

29 

25 

29 

26 

9 

3 

10 

4 

3 

10 

3 

11 

3 

2 

1 

6 

4 

16 

3 

17 

15 

2 

16 

4 

16 

13 

14 

14 

15 

9 

15 

9 

10 

16 

8 

17 

9 

9 

8 

9 

10 

17 

12 

14 

15 

12 

16 

11 

16 

16 

16 

15 

23 

35 

27 

33 

31 

25 

35 

26 

31 

30 

30 

30 

2 

8 

2 

7 

7 

2 

7 

2 

7 

7 

7 

7 

5 

6 

5 

6 

6 

4 

6 

5 

6 

6 

6 

6 

171 

3 

171 

3 

3 

171 

3 

171 

3 

3 

2 

2 

3,442 

3,395 

3,432 

3, 355 

3,167 

3,339 

3, 325 

3,503^3,246 

3,174 

3, 358 

3,172 


>> 

© 

8 

d 

a 

£ 

Wm. Scallon. 

i 

1 



































































i 

1 


a 

© 

Ph a 


193 
105 
124 
437 
112 
233 
123 
112 

194 
218 

86 

230 

167 

89 

157 

76 

77 
146 

28 

67 

21 

62 

22 

15 


146 

11 

2 

16 

12 

23 

2 

5 


171 


3,482 


* No polls held. 


“ Territory of Montana, 

u County of Silver Bow, ss: 

il I, Charles F. Booth, county clerk of said county, do hereby certify that the above 
and foregoing is a true and correct abstract showing the result of the election and 
votes cast for State senator and members of the legislative assembly of Montana, in 
Silver Bow County, Mont., on the 1st day of October, 1889. 

“In witness whereof I have hereunto subscribed my hand and affixed the seal of 
said county on the 31st day of October, 1889. 

“[seal.] “Chas. F. Booth, 

u County Cleric of Silver Bow County, Montana .” 

11 In addition to the evidence of Booth, we have the admission of the Territorial 
hoard of canvassers, in what purports to he their official finding of the result of the 
election, that this copy of the abstract of the returns from Silver Bow County, so cer¬ 
tified to by the county clerk, was before the said hoard when they made their said find¬ 
ing, and that no other or different abstract of returns from said county was before 
them; and to said copy of said abstract was attached, according to the affidavit of 
Booth, as before stated, a copy of the judgment, of the court declaring the duty of 
the county hoard to include precinct 34 in the abstract of votes of said county to be 
absolute, “ and that the returns, including said precinct, constitute the true and cor¬ 
rect result of said election.” 

(8) That notwithstanding the premises, the Territorial board of canvass, consist- 













































































CLARK AND MAGINNIS VS. SANDERS AND POWER. 745 


ing of tlie governor, the secretary of state, and the chief justice of said Territory, 
all being of the same political party—the Republican—made their finding, dated the 
4tli of November, 1889, which, so far as concerns Silver Bow County, is as follows: 


“ Territory of Montana, 

“ County of Lewis and Clarice, ss: 

“We, Benjamin F. White, governor, Henry N. Blake, chief justice, and Louis A. 
Walker, secretary of the Territory of Montana, the duly appointed and authorized 
canvassing board designated in the act of Congress approved February 22, A. D. 
1889, providing for the admission of Montana as a State in the Union, and also under 
and by authority of ordnance number two, passed and enacted by the constitutional 
convention of the said Territory, do hereby certify that the above and foregoing is a 
full, true, and correct abstract of the votes cast in said Territory at the election held 
on the first Tuesday in October, A. D. 1889, as appears by the duly certified returns 
from the counties named, and as counted and canvassed by us this the 4th day of 
November, A. D. 1889. 

“And we further certify that, having duly convened as such canvassing board on 
the 31st day of October, A. D. 1889, the same having been the thirtieth day after the 
close of said election, and having received no duly certified returns from the county 
of Silver Bow in said Territory, we duly appointed and commissioned Benjamin Web¬ 
ster a special messenger to proceed forthwith to the said Silver Bow County and to 
demand and receive from the county clerk of said county a properly certified copy 
of the abstract of the votes cast in said county at said election as canvassed and 
declared by the proper canvassing board. 

“ That the said messenger, Benjamin Webster, duly appointed as aforesaid, did pro¬ 
ceed to the said Silver Bow County and did demand from the county clerk of said 
county the duly certified copy of said abstract of votes as aforesaid, and thereafter 
returned to Helena and made his sworn return that the demand for said abstract 
was by the said county clerk refused. 

“ Being, therefore, without any proper copy of the abstract of votes cast in Silver 
Bow County, and having exhausted the authority given by the statute in endeavor¬ 
ing to obtain the same, it now becomes our duty to ascertain and declare the same 
from the best sources of information obtainable. 

“We have before us the official certificate of Charles F. Booth, county clerk of Sil¬ 
ver Bow County, showing that a certain number of votes were cast for the differ¬ 
ent candidates in that county in the different precincts thereof, naming each of them 
and the number received by each candidate in each precinct, and including the 
34th precinct as having voted at said election. We also have before us an official 
notice signed by Mr. Booth as county clerk of said county, stating in effect that the 
board of canvassers in said county met as such on the 14th day of October, 1889, and 
did then and there canvass and count the vote of Silver Bow County and declare the 
result thereof, and that they did not count, but did reject as false, fraudulent, and 
void, all of the votes reported as cast and counted in election'precinct No. 34 in said 
county. 

“No other or further action having been had by the canvassing board of said 
county in relation to the canvass of the vote therein, we conclude that the true result 
as canvassed and declared must be found by eliminating from the list of votes cast, 
as certified by County Clerk Booth, the vote of precinct 34, which was rejected by 
said canvassing board, as stated in the certificate of said county clerk, and which 
shows the true vote of Silver Bow County to be as follows: 


Totes. 

For the constitution. 3, 962 

Against the constitution. 467 

For Representative in Congress: 

Thomas H. Carter. 3,566 

Martin Maginnis. 3,456 

For governor: 

Thomas C. Power.3,444 

Joseph K. Toole. 3, 610 

For lieutenant-governor: 

John E. Rickard. 3,559 

J. H. Conrad. 3,408 

For secretary of state: 

Louis Rotwitt. 3, 445 

Joseph A. Browne. 3,458 

For attorney-general: 

W. Y. Pemberton. 3,521 

Henri J. Haskell.3, 381 


Votes. 


For State treasurer: 

R. O. Hickman. 2, 502 

Jerry Collins.3, 404 

For State auditor: 

Thomas D. Fitzgerald. 3, 453 

Edwin V. Kinney. 3, 427 

For superintendent public instruc¬ 
tion : 

John Gannon. 3,202 

James R. Russell. 3, 650 

For chief justice supreme court: 

Henry N. Blake. 3, 382 

Stephen De Wolfe. 3, 495 

For associate justice supreme court, 
seven-year term: 

W.M. Bickford. 3,340 

William H. De Witt. 3, 428 

























746 


SENATE ELECTION CASES. 


Votes. 


For associate justice supreme court, 
five-year term: 

Frank K. Armstrong. 3,432 

Edgar N. Harwood. 3, 346 

For judge district court, second 
judicial district: 

Levi J. Hamilton. 3, 475 

John J. McHatton. 3, 334 

For clerk of the supreme court: 

George F. Cope. 3, 317 

William J. Kennedy. 3, 454 

For state senator: 

Charles W. Goodale. 3, 263 

Daniel J. Hennessy.-3,597 

For members of the legislative 
assembly: 

Absalom F. Bray. 3, 356 

Joseph K. Clark. 3,582 

Thomas F. Courtney. 3, 235 

A. M. Day. 3, 303 


Votes. 

For members of the legislative 


assembly—Conti lined. 

Peter R. Dolman. 3,364 

Alphonso M. Dusseault.3, 283 

Henry L. Frank. 3, 351 

John W. Gilligan. 3,271 

Frank H. Hofiman. 3, 392 

Joseph Hogan. 3,261 

James H. Monteatli. 3,352 

Albert G. Noble. 3,164 

John J. O’Meara. 3,168 

W. J. Penrose. 3,311 

William H. Roberts. 3, 322 

Leopoln F. Schmidt. 3, 332 

Newell J. Scott. 3, 243 

Thomas Sturtridge.3,171 

William Thompson. 3, 356 

Abraham S. Yoder. 3,170 

Wm. C. Riley. 1 

William Scanlon. 1 


“ That the foregoing is, and the same is hereby found and declared to be the result 
and a true and correct statement of the votes cast at said election held on the first 
day of October, A. D. 1889, in Silver Bow County, Montana, according to and in 
strict conformity with the abstract of votes made and certified to by the duly and 
legally constituted board of canvassers of election returns for said county at said 
election.” 

******* 

That in obedience to the peremptory mandate of the court, and in conformity to 
the law declared by said court to be in fofce, the county clerk of said Silver Bow 
County issued to the relators, the five members of the house of representatives 
found to be elected by the abstract of votes made by the canvassing board of said 
county, their certificates of election. Like certificates of election had been, it is 
6aid, issued by the clerks of the several counties to those who appeared by the votes 
of their respective counties to have been elected members of said house. 

(9) It is established by sworn testimony that has not been impeached or contro¬ 
verted that the election on the 1st day of October, 1889, at said precinct 34 was from 
beginning to end conducted in a public, open, peaceable, fair, and impartial manner, 
without intimidation, fraud, or undue influence exercised toward anyone, and that 
after the closing of the polls the counting of the votes was done fairly and correctly, 
and duly certified according to law upon the blank sheets furnished by the proper 
authority for that purpose; that the tally sheet and returns from said precinct con¬ 
tained a fair and correct report of the votes and ballots cast thereat; that these 
returns were duly delivered by one of the judges to the county clerk in a sealed 
envelope, and was by him laid before the county canvassing board; that they were 
regular and in due form upon their face appears by the copies in the printed record 
laid before your committee; that the frivolous character of the objections which 
were made by partisan counsel to the regularity of these returns is apparent when 
it is seen by the record that the first and principal objection insisted upon was that 
in signing the returns the names of the judges were not written opposite the word 
“ Attest,” printed on the blanks used, and that the names of the clerks were written 
after and below those of the judges, thus: 

“ Certified by us this 2d day of October, A. D. 1889. 

a A Acjf • 

“W. A. PENNYCOOK. 

“JOHN MORRISON, 
“WILLIAM O'REGAN, 

“ Judges of Election. 
“THOMAS O'KEEFE, 

“ A. M. ANDERSON, 

“ Clerks of Election .” 

the law directing that the returns should be certified by the clerks and attested by 
the judges. 

Another principal objection urged before said canvassing board to their receiving 
and counting said returns was that the sealed envelope containing the same was 
delivered to the county clerk by one of the judges in person, instead of being mailed 
at the nearest post-office, as directed by law. 

































CLARK AND MAGINNIS VS. SANDERS AND POWER. 747 


The only other objection made to the returns on their face was that the lists of 
persons voted lor and the entry of the number of votes received by each appeared to 
be in the handwriting of one of the judges, instead of in that of one of the clerks. 
After these objections to the regularity of the returns and apparently as an after¬ 
thought five or six ex parje affidavits were introduced as to certain alleged occur¬ 
rences at the polls and the counting of the votes, none of which arose to the dignity 
ot supporting even a suspicion of fraud or invalidity as to the conduct of said elec¬ 
tion at said precinct 34. 

Reference is here made to the amazing character of these objections, not because, 
in the opinion ot the undersigned, the Senate, in determining this case, is engaged 
in a discussion ol the grounds of decision of a board or tribunal invested by law 
with a judicial function in the premises, for no such function, in the opinion of the 
undersigned, belonged to this county board of canvassers, but in order that the des¬ 
perate nature of what seems to the undersigned to have been a conspiracy to thwart 
the expressed will of the people of Montana, by the suppression of votes honestly 
and lawfully cast, may be displayed to the Senate and the country. 

(10) That by the constitution of the State of Montana the senate consists of six¬ 
teen members, and the house of representatives of fifty-five. In one representative 
district there was a tie vote, and no election was had to supply the vacancy, thus 
reducing the whole number of representatives to fifty-four and the total of the joint 
assembly to seventy. That in obedience' to said constitution the governor of the 
State of Montana, on the 11th of November, 1889, issued his proclamation convening 
the legislative assembly to meet at Helena, the seat of government, on November 23, 
1889, and by a subsequent proclamation, dated November 22,1889, he designated the 
court-house in Helena as the place where the said legislative assembly, u comprising 
the persons holding and presenting certificates of election from said county clerks, 
shall meet.” That the said court-house had been, under the laws of the Territory of 
Montana, the place for the meeting of the Territorial legislature. That on the said 
23d day of November, the day for the convening of the legislative assembly, the gov¬ 
ernor, in a letter of instruction to the custodian of the said court house, directed him 
to admit to the same every person claiming to be a member of said assembly. 

Pursuant to the said proclamations on the said 23d day of November, 29 persons 
claiming to be members of the house of representatives, and all having certificates 
of election from clerks of counties, met at the said court-house at the time lixed by 
the constitution, and, being a majority of the number of representatives prescribed 
by the constitution, proceeded to organize as the house of representatives. The 
title of 24 of these as members of the house is not disputed; the remaining 5 
claimed to be lawfully elected and entitled to sit as members from Silver Bow County. 

Thirty other persons, claiming to be members of the said house of representatives, 
on the finding of the Territorial board of canvass, but with what certificates thereof 
is not clear, met at a building called Iron Hall, in the said city of Helena, at the 
time fixed aforesaid, and also organized as the house of representatives. The title 
of 25 of these as members of the house is not disputed. The remaining 5 claimed 
to be lawfully entitled to sit as members from Silver Bow County. There is no dis¬ 
pute as to the membership or organization of the senate. 

Two of the claimants for admission as Senators to this body, Messrs. Clark and 
Maginnis, were elected by a joint assembly of one-half of the members of the senate 
and all of the members of what may be called the “ couit-house n house of repre¬ 
sentatives, and their election is certified to the Senate by the governor of the State. 
But his certificate lacks the attestation of the secretary of state and the seal of the 
State, as required by the act of Congress. The other two claimants, Messrs. San¬ 
ders and Power, were elected by a joint assembly of one-half of the members of the 
senate and all of the members of what may be called the u Iron Hall ” house of rep¬ 
resentatives. Their said election is certified to the Senate by the secretary of state, 
with the seal of the State attached. But there is no certificate of the governor, as 
required by the act of Congress, and the secretary of state is not authorized by said 
act to certify, but only to attest the certification of the governor. 

The question, therefore, for the Senate to determine is which of these two sets of 
five persons claiming to be entitled to sit as members of the house of representatives 
were lawfully so entitled. 

The undersigned believe that an unbiased consideration of the facts above stated 
will fully justify their dissent from the majority of the committee and should pre¬ 
vent the Senate from adopting the resolution reported. 

The power conferred by the Constitution on the Senate to 11 judge of the elections, 
returns, and qualifications of its members ” is exclusive and judicial, and in its exer¬ 
cise the Senate acts judicially. 

The immediate constituency of a United States Senator is the legislature of the 
State which he represents. His credentials must purport to be a certificate that he 
was chosen by the legislature. 

The act of Congress prescribes that this certification shall be made by the gov- 


748 


SENATE ELECTION CASES. 


ernor of the State, under the seal of the State, and shall he countersigned by the 
secretary of state. Such a certificate is received by the Senate as prima facie evi¬ 
dence of the due performance by the legislature of its constitutional function to 
choose a Senator and of the title of the person named therein to a seat in this body. 

In the absence of such certification the Senate, in pursuing further its judicial 
inquisition, must inquire for itself whether the claimant has been duly chosen by the 
legislature of the State. In so doing it must seek to satisfy itself, first, that the body 
assuming to choose a Senator is in fact the legislature of the State, and, second, that 
it has actually and lawfully chosen a Senator. In deciding the first branch of this 
inquiry in this case the Senate will be relieved of all difficulty in deciding the sec¬ 
ond. 

A legislature must be taken to mean, for the purposes of such an inquiry and in 
the sense of the Constitution, “ the law-making power of the State.” The body 
capable of making laws for the State is the legislature, both in its literal and tech¬ 
nical sense, as was decided by the Senate in the case of Potter vs. Robbins, TatVs 
Election Cases, page 83. 

When the Senate finds such a body duly organized in both branches, capable of 
enacting laws and lecognized as such in the State and by the other departments, 
further inquiry is useless and inappropriate. The body authorized to choose a Sen¬ 
ator is found. The Senate can not in such a case make inquisition as to the title of 
the sitting members of such a body in order to invalidate its legal character or 
impinge in the slightest degree on the exclusive right of each branch to judge of the 
elections and qualifications of its own members. 

It is not believed that there is any difference of opinion in the committee upon 
this proposition, or as to the doctrine announced by the majority of the committee 
in the Rhode Island case just alluded to and reaffirmed by the undersigned, that 
“when the sovereign will of the State is made known through its legislature, and 
consummated by its proper official functionaries in due form, it would be a danger¬ 
ous exertion of power to look behind the commission for defects in component parts 
of the legislature or into the peculiar organization of the body for reasons to justify 
the Senate in declaring its acts absolutely null and void,” and “that contested elec¬ 
tions in the popular branch of Congress, where the people exert in their primary 
capacity the right of suffrage under various limitations and restrictions in the choice 
of Representatives from certain prescribed districts, open a much wider field of 
inquiry and investigation than a like contest for a seat in the Senate, which is a 
body wholly federative in its character and organization, and whose members hold 
their appointments from and represent the Stains as political sovereignties.” 

But the difficulty comes in cases like the present, where there are two bodies 
claiming to be the legislature of the State, or, to come more closely to the facts of 
the present case, when there is a single and legally organized State senate and a dual 
organization of the house of representatives, neither of the houses so organized hav¬ 
ing a quorum of members without counting those whose title is contested and right 
to sit denied by a like number in the other house, claiming to lawfully represent the 
same constituency. 

If either house had a quorum outside of such disputed membership, then the Senate 
would be concluded from any attempt at further inquisition. Such an attempt on 
its part would be an interference with the highest judicial function in the premises, 
the exclusive jurisdiction of each branch of a legislature to judge of the election’ 
etc., of its own members. 

But as confessedly neither house has such a quorum, then, unless the Senate shall 
decide that none of the claimants before it come accredited by a body competent to 
act as a legislature, or so recognized as such by the other departments of the State 
government as to make it de facto the legislature of the State in the sense of the Con¬ 
stitution of the United States, from necessity the Senate must pursue its inquiry as 
to which is the true and lawful house, outside the doors of either. 

In conformity to the doctrines already stated in this report, and to the safest pre¬ 
cedents and best traditions applicable to the premises, the undersigned believe that 
the Senate in prosecuting its inquiry, after leaving the doors of both alleged houses, 
must, under the facts and circumstances appearing in this case, seek the first for an 
officer or body on whom the law devolved the duty of ascertaining the result of the 
election and of certifying the result, and then ask what action has been had by such 
within his or its legal duty and powers, and especially inquire for any judicial decision 
on the question of disputed powers and duties, made prior to the time fixed for the 
convening of the legislature, because the facts and circumstances of the case as they 
stand admitted in the record bring us to this position : That, conceding the proposi¬ 
tion of the majority of the committee, that the Territorial board of canvass was the 
paramount authority to canvass the returns of the county board as to the votes cast 
tor representatives, and that we must first look to see what credentials members of 
the legislative assembly, or those claiming to be such, have from this canvassing 
board, yet it seems uncontrovertibly true that the Senate must inquire and judicially 


CLARK AND MAGINNIS VS. SANDERS AND POWER. 749 


determine, first, what are the legitimate powers of the said board under the act of 
Congress and the ordinances made pursuant thereto, and the principles of law appli¬ 
cable in the premises; and, second, what this board has assumed to do (comparing 
its acts with its lawful authority); and, third, what binding effect its proceedings 
as set out in the record should properly have upon the Senate in determining the 
question before it. 

Proceeding to this inquiry, we find that this Territorial board of canvass was con¬ 
stituted, by the eighth section of the enabling act and by the fifth section of ordi¬ 
nance 2 of the convention, to “ canvass the votes so cast (for or against the consti¬ 
tution), and declare the result;” that while the said enabling act, in its twenty- 
fourth section, provides “that the constitutional conventions may by ordinance 
provide for the election of officers for full State governments, including members of 
the legislature and Representatives in the Fifty-first Congress,” it is silent as to the 
manner in which said election shall be bad, thereby authorizing the said conventions 
to prescribe the details as to manner and methods of conducting the same. 

Accordingly, the said ordnance 2 of the convention, in its sixth section, provides 
that such an election for State officers, including members of the legislative assem¬ 
bly, should be held on the first Tuesday in October, 1889, and then in section 8 as 
follows: 

“Eighth. The votes for the above officers shall be returned and canvassed as is 
provided by law [that is, law of the Territory], and returns shall be made to the 
secretary of the Territory and canvassed in the same manner and by the same board 
as is the vote upon the constitution.” 

It will be observed that while the said board are to canvass the votes cast for or 
against the constitution, and to declare the result, it i@ expressly directed, in the 
matter of the election of representatives, to canvass only the returns from the so-called 
county canvassing boards, and the express authority “to declare the result” is 
omitted. 

Whatever view is taken of the extent of the implied authority asserted for said 
board to make some finding or statement of their transaction in the premises, the 
fact that express authority “to declare the result” was given«in the one case and 
withheld in the other can not be without significance in considering the powers of 
said board in regard to the canvass of the returns from the county boards, of the 
abstracts made by them of the votes cast in their respective counties for representa¬ 
tives. 

It is perfectly clear, in the opinion of the undersigned, that both the so-called 
county boards of canvass, underbhe general laws of the Territory, and the Territorial 
board of canvass, under the provisions of the ordinance prescribing its duties in 
regard to the election of representatives to the legislative assembly, had none but 
ministerial duties to perform, and was invested with no judicial functions whatever. 

A judicial authority of so high and important a nature as to stand between the 
electors and the result of their ballots, ought never to be taken as conferred other¬ 
wise than by express enactment of law, and in the opinion of the undersigned it 
never has been. By the general laws of Montana the county boards of canvass (of 
whose powers and duties more hereafter) were only authorized to make abstracts 
of the votes cast in the several voting precincts, and the returns which alone the 
Territorial board is authorized to canvass, are these abstracts. So that it would 
seem too plain for argument that the only duty of the said board in the premises 
was to aggregate and tabulate as a matter of arithmetic these abstracts, where, as 
in the case of the office of representative of Silver Bow County, the vote of the 
county elects the officers, the only duty would plainly be to verify the arithmetical 
processes and thereby confirm the return. 

When, however, the officer is voted for throughout the State, a large duty is 
devolved upon them, to aggregate the returns from the several counties that it may 
appear who of those voted for for the same office, has the larger number of votes. 
There is surely no authority here, allowing even the greatest latitude to the doctrine 
of implication, to canvass anything but returns from the county boards, or, more mon¬ 
strous still, to omit to canvass some returns, or to canvass where there are no returns, 
or to canvass part of a return. 

If authority were necessary for a conclusion so obvious, and so conformable to the 
practical common sense of a self-governing people, our judicial reports are full of 
decisions, commencing far back in our history and coming down to recent times, 
making an unbroken current of authority for the proposition, as stated by Judge 
McCrary in his work on elections, at section 226. He says: 

“It is well settled that the duties of canvassing officers are purely ministerial, and 
extend only to the casting up of the votes and awarding the certificate to the person 
having the highest number; they have no judicial power.” 

At section 229 of the same book, he says: 

“The doctrine that canvassing boards and return judges are ministerial officers 
possessing no discretionary or judicial power, is settled in nearly or quite all the 
States.” 


750 


• SENATE ELECTION CASES. 


Along list of cases is cited in support of this, which need only thus he referred to. 

In Attorney-General vs. Barstow (4 Wis. 749) the supreme court of the State says: 

“The canvassing officers are to add up and certify by calculation the number of 
votes given for any office; they have no discretion to hear and take proof as to frauds, 
even if morally certain that monstrous frauds have been perpetrated.” 

In State ex rel vs. Steers (44 Mo. 223), the court says: 

“To allow a ministerial officer arbitrarily to reject returns at his mere caprice or 
pleasure is to infringe or destroy the rights of parties without notice or opportunity 
to be heard, a thing which the iaw abhors and prohibits. * * * The exercise ot 

such a power is subversive of the rights of the citizen and dangerous and fatal to 
the elective franchise. But it is enough to say that the claim is utterly unauthor¬ 
ized. * * * When a ministerial officer leaves his proper sphere and attempts to 

exercise judicial functions, he is exceeding the limits of the law and guilty of usur¬ 
pation.” , 

The court goes on to say that it has examined, with a good deal of research, the 
authorities, and has “never been able to find a single one that held otherwise than 
that the canvasser acted ministerially; but they are unanimous and decisive in de¬ 
claring him to be a ministerial officer and nothing else.” 

It is submitted that there can be no serious difference of opinion as to the correct¬ 
ness of the foregoing view of the legitimate powers of this Territorial board of can¬ 
vass. Comparing these powers with what this board assumed to do, it will appear 
by their own showing that they have, in relation to the election of these five mem¬ 
bers from Silver Bow County, grossly transcended their lawful authority and wil¬ 
fully neglected the duties imxmsed upon them by law—sins of commission and of 
omission. , 

The only evidence that the Senate has before it of what this board did do, or did 
not do, is in what purports to be an official deliverance made on the 4th day of No¬ 
vember, 1889. And for the purposes of this case that is the best evidence. 

We have recited above all of that deliverance that is material to this inquiry. 
The Senate can not close its eyes or ears to what is there found. It is acting judici¬ 
ally, by virtue of power which is conferred upon it by the Constitution, which power 
is judicial in its nature. As has been seen, a decision as to the election and return 
of these five members from Silver Bow County, by the highest judicial tribunal hav¬ 
ing jurisdiction, to wit, the house of representatives of Montana, is wanting, and 
in the nature of things can not be had. The Senate has been compelled to leave the 
doors of both contesting bodies to institute its judicial inquiry, and seek for the 
highest and best legal evidence of the title of these five members sitting in the 
“Iron Hall House,” whom, the majority of the committee say, the Senate must find 
to be lawfully and duly elected by virtue of this said finding or deliverance of the 
Territorial board of canvassers. 

To this the majority refer us as the first evidence to which we must turn, and as 
the best, and upon us conclusive, evidence. Admitting that this board was lawfully 
created, aDd that it can, within the scope of its lawful powers, announce the result 
of the election of representatives in Silver Bow County, and that we would be bound 
thereby, it is nevertheless true that not every pretended act of this board, no mat¬ 
ter how unlawful or usurpatory in its character, is so binding. What is the act 
which has thus assumed the character of evidence conclusive (as claimed) upon the 
Senate? Not a simple certificate of result, such as was made in the famous and in¬ 
famous Louisiana case in 1876; but a judicial finding, purporting at great length to 
set out the reasons which supported its decision to eliminate the votes of a whole 
precinct of Silver Bow County, which they admitted they had before them But we 
have seen how purely ministerial their duty in the premises was. How can the 
Senate recognize such an act of such a body? But again, in their judicial finding 
they tell us, with amazing inconsistency, that when they were assuming to canvass 
the returns from the different counties they had no proper returns from Silver Bow 
County before them, and yet they attempt to declare the result from that county. 
In one part of their finding they profess to have a return from said county from 
which they tell us they decided to “eliminate” the votes of a whole precinct, and 
in another they declare that there is no return from said county before them. By 
what principle of law or common sense is the Senate bound by such a finding or by 
such an act? Is it not the clearest duty of the Senate in the exercise of a judicial 
power to reject altogether such evidence? 

The Territorial board of canvass has stated itself out of court. If it had been a 
body armed with judicial powers conferred by the ordinance,'still it would have 
been necessary that the Senate should satisfy itself of the existence, at least the 
presumed existence, of the facts necessary to its jurisdiction. But no presumption, 
even, of jurisdiction can prevail against the statements of the record, which not 
only rebut that presumption, but disclose the baldest and most flagrant usurpation 
of a jurisdiction not conferred by ordinance or statute. 

A suit on a judgment of a Federal or State court for the most insignificant amount 


CLARK AND MAGINNIS VS. SANDERS AND POWER. 751 


would be thrown out of any court in which it was brought if the record itself dis¬ 
closed a want of jurisdiction of either the subject-matter or the parties. And this 
is true even ii the judgment be of a court of geueral jurisdiction. But in the case 
ot a judgment of a court of statutory and limited jurisdiction it must affirmatively 
appear in the record, in the language of Judge Cooley, “ that the case was one which 
the law permitted the court to take cognizance of, and that the parties were subject 
to its jurisdiction.” 

No presumption in such a case exists in favor of jurisdiction. These are the ele¬ 
mentary and well-understood principles applicable to judicial tribunals. But these 
territorial canvassers, as we have seen and as must be admitted, are not a tribunal 
at all and are clothed with no judicial functions whatever; their duties are minis¬ 
terial.. A fortiori, then, must their said action in the matter of the election of repre- 
sentatiyes from Silver Bow County, to which wo are referred as being the credentials 
of the live members sitting in the “Iron Hall” house, appear to have been taken 
under authority «ol law, to have been within the scope of their lawful authority, and 
not outside of it. 

It is what the board may lawfully do, which, when done, may be evidence of title 
to sit as a member from Silver Bow County, and be called by the somewhat ambigu¬ 
ous name ol a credential to such member. No mere usurpatory and unauthorized 
action can be so dignified. It is this finding of November 4, the character of which 
we have now sufficiently displayed, that is relied upon by the majority of the com¬ 
mittee as the evidence of the right of the five u Iron Hali” representatives to sit as 
members from Silver Bow County. This is what is called their credentials. No 
other paper or document can be referred to as such. 

It is submitted that this finding, showing on its face that it was one not within 
the scope of the authority of said board to make, so far as the election of repre¬ 
sentatives from Silver Bow County is concerned, is not a credential at all in any 
proper seuse of that term, and must be disregarded by the Senate in its judicial 
inquiry as utterly void and of no effect. While to do otherwise would violate those 
rules of procedure which should govern the Senate as a judicial tribunal, it will 
appear further on that it would most seriously infringe the right of the people of 
Montana to free elections, and that technical law and the broadest principles of 
public morality and popular rights demand the same result. 'Far as the inherited 
tendencies and traditions of our race may compel us to go in paying the homage of 
our respect and obedience to the orderly and lawful though technical forms through 
which the principles of self-government have achieved their greatest triumphs, they 
will never compel us to stand uncovered in the presence of usurpation and fraud 
though masked in the forms of law. 

If the Senate fail, as we think they must fail, to be judicially satisfied that the 
deliverance of the Territorial board of canvass of November 4, 1889, is sufficient as 
evidence of the title of the five Silver Bow members in the “ Iron Hall ” house of repre¬ 
sentatives, they must turn elsewhere and seek for such evidence under the limita¬ 
tions hereinbefore stated. This will bring us to the abstract of votes made by the 
county board of canvass of Silver Bow County, under the law as interpreted by the 
Territorial court,^ and in obedience to the lawful mandate of said court. 

It is not necessary now to discuss the authority, under the law, of the county clerk 
to certify the result of the final canvass for representatives in the legislative assem¬ 
bly, or whether section 1325 of the general laws of Montana, quoted above, give the 
force of prima facie evidence to his certificate, was or was not repealed by the ordi¬ 
nances of the convention. For in the absence of any lawful act in the premises, by 
the board of final canvass, and in view of the fact certified to by them, that among 
the returns before them from the various county boards of canvass (which and which 
alone it was their duty to canvass) there were none from Silver Bow County, the 
Senate, unless it shall deem its duty to be to decline further inquiry, and to declare 
that there is no evidence of the existence of a legislative body competent to choose 
a United States Senator, must and properly should, ask for the abstracts of votes 
made by the board of canvass of Silver Bow County, the return of Avhich was not 
before the Territorial board of canvass at the time they made their canvass of the 
returns from the other counties, or if before them was not lawfully canvassed. 

If we can find these abstracts of the votes of the various voting precincts of Silver 
Bow County lawfully canvassed and certified by the officials of that county entrusted 
by law with that duty, we will have the very thing which the Territorial board was 
directed by. the ordinance to receive as showing the state of the vote, and to canvass 
and certify, and under the circumstances of this case the same will, in the opinion 
of the undersigned, be binding on the Senate. 

This makes it necessary to look at what was done by the said county board after 
the election on the first Tuesday of October. 

It has already been recited briefly in the foregoing pages. Suffice it to recall now 
that the law constituting this board prescribed its duty to bo, after the fifteenth day 
from the close of the election, or sooner if all the returns shall be received, to open 


752 


SENATE ELECTION CASES. 


said returns and make abstracts of the votes. (See section 1033 of general laws ot 
Montana above recited.) That after it had met on October 12 and had according to 
law opened the returns from all the voting precincts of said county and made ab¬ 
stracts of the votes, a majority of the board on October 14 determined to eliminate 
the vote of one of said precincts, viz, precinct 34, thereby changing the majority 
shown in favor of the five representatives, who afterwards sat in the court-house legis¬ 
lature, to one in favor of the five who afterwards sat in the Iron Hail legislature. 

Soon thereafter, before they had adjourned or completed their work on said ab¬ 
stracts, alernative writs of mandamus were served upon all the canvassers, com¬ 
manding them to include the returns from said precinct in the abstracts of votes of 
said county, or show cause to the contrary on the 28th of the said month of October. 
That on the 31st of October judgment awarding a peremptory writ of mandate was 
rendered by the court, in one of said suits, and on the 1st day of November a like 
judgment was rendered in the other, commanding the said board of canvass to count 
and include said precinct 34 in the abstracts of votes of said county, and the clerk of 
the board of county commissioners to deliver a certificate of election to each of the 
relators, the five Democratic candidates for representative. The said judgment of the 
court, and the opinion accompanying the same, and the said writ of peremptory 
mandamus issued in obedience to the same, are appended to this report as an ap¬ 
pendix. 

These judgments were delivered, and these peremptory writs of mandate were 
ordered to issue, ^vliile the Territorial board of canvass was in session before its 
alleged finding in fegard to the vote of Silver Bow County. No reasonable man 
doubts that, as a matter of fact, the members of said board was cognizant of this 
judicial determination; and there is no declaration on their part, or other evidence, 
that they were not. The indecent haste with which they sought to anticipate, by 
their action, the reception of a lawful return of the abstract of votes of said Silver 
Bow County, made in obedience to competent judicial authority, is one fact, among 
many, that combine to establish the existence of a purpose, born of reckless parti¬ 
sanship, to disregard the votes of the people, in order to obtain results favorable to 
a political party and its ambitious leaders. 

Ordinary respect for the laws of the society of which they were members should 
have constrained these canvassers to have postponed their adjournment till the 
abstracts which the court had ordered could be made, and which three days there¬ 
after actually were made. But this palpable evasion of legal official duty can not 
alter the fact that in conformity to law as interpreted by a court of competent juris¬ 
diction over this very case, and in obedience to a lawful mandate of said court, the 
county canvassers made abstracts of the votes from all the precincts of said Silver 
Bow County, including precinct 34, which were duly certified to the secretary of the 
said Territory. This return shows that the five persons sitting in the court-house house 
of representatives as members from Silver Bow County, were elected as such, and is, 
in the opinion of the undersigned, binding on the Senate, as, under the circum¬ 
stances, the best evidence of title to sit as representatives from said county. 

It was a board authorized and directed by law to canvass the returns of votes cast 
in said county. That it acted according to law is evidenced by the fact that what 
it did was in obedience and strict conformity to the mandate of the judicial depart¬ 
ment of the Government, lawfully issued in accordance with its interpretation of the 
law. What higher sanction can the Senate ask for official action? This is not the 
finding of an officer or board acting outside of the scope of his or its lawful author¬ 
ity, but the lawful act and law-directed performance of a duty to canvass, declared 
so to be by a competent judicial tribunal. 

The undersigned believe that the Senate is bound by the act so performed, and by 
the judicial opinion indorsing it. 

But it is said by the majority of the committee, to break the admitted force of this 
conclusion, that the execution of the judgment of the court referred to was super¬ 
seded by an appeal. A sufficient answer would be, that the judgment was executed 
by the service of the peremptory mandate upon the county canvassers and that said 
mandate was obeyed by them. Another and independent answer is, that the alleged 
appeal was not perfected by filing the appeal bond or undertaking within the five 
days of the notice of appeal required by the statute of Montana, and was therefore 
under the express provision of said statute “ unavailing for any purpose.” 

The undersigned therefore submit that, under the limitations, which they recog¬ 
nize as properly applicable to this judicial inquiry of the Senate, it is found and 
should be judicially determined by the Senate, that the five persons claiming to sit 
in the court-house assembly as representatives from Silver Bow County, are accred¬ 
ited by the act of the only officer or board that has lawfully canvassed the vote of 
said county. That this being so, it should be further found and determined by the 
Senate, that the joint assembly of the members of the senate and the members of the 
said court-house house of representatives, which chose Messrs. Clark and Maginnis 
as Senators of the United States from the State of Montana, contained a majority of 


CLARK AND MAGINNIS VS. SANDERS AND POWER. 


753 


all the members elected to both houses, present and voting, and was competent to 
choose such Senator, and that the Messrs. Clark and Maginnis are entitled to be 
admitted to seats in the Senate as Senators as aforesaid. 

It should be remembered that the governor of the State of Montana, constituting 
one of the three great departments ot the government, has never recognized the body 
assembling in Iron Hall as the house of representatives of Montana, but that he has 
so recognized the body which assembled in the court-house. 

It is well to notice here an objection urged by the majority to the conclusions we 
have based on the purely ministerial character of the duties imposed upon the Terri¬ 
torial board. It is this: That admitting that those duties are ministerial and not 
judicial, yet they say the board is required to judge whether what purport to be 
returns are properly returned or no. 

Without pausing to comment, except thus briefly, on the exceeding refinement of 
the distinction, and how convenient a door it opens for the escape of tricky and 
unscrupulous officials from the obligations of their duties, we answer that in this 
case the canvassing board in their finding declare that though they have u judged,” 
that no proper return was before them they afterwards in the same finding, “judge” 
that there is, and proceed to eliminate part of it. So that the proposition, even if 
true to the extent claimed, has no application or relevancy to the facts of this case. 

But the unqualified proposition that such a board may judge and determine as 
pleases them, whether any paper purporting to be a return is such, is not true. The 
rule in this regard is, that what is contained on the face of the return must decide 
this question. McCreary, in his work on elections, already cited, says: 

u The true rule is this: They must receive and count the votes as shown by the 
returns, and they can not go behind the returns for any purpose, and this necessarily 
implies that if a paper is presented as a return, and there is a question as to whether 
it is a return or not, they must decide that question from what appears upon the 
face of the paper itself.” 

There is an additional reason for the conclusion that the Senate must recognize 
the title to sit of the five members from Silver Bow County in the court-house legis¬ 
lature. It is quite independent of those already urged by the undersigned in this 
report. It is found in the fact that these five members have certificates of election, 
signed and issued by the county clerk of Silver Bow County, in conformity to the 
requirement of the statutes of Montana in that behalf, which it is submitted were 
in force at the time fixed for the convening of the legislature, and that such certifi¬ 
cates are made by section 1325 of said statutes “prima facie evidence of the right to 
membership of the person certified therein to be elected, for all purposes of organi¬ 
zation of either branch of the legislative assembly.” 

Section 9 of the enabling act provides that Territorial officers shall continue to 
discharge the duties of their respective offices until State officers are elected and 
qualified and the State is admitted into the Union. And section 24 of said act pro¬ 
vides that all Territorial laws shall remain in force, except as modified or changed 
by said act, or by the constitution of the State. It is not claimed the law requiring 
the county clerk to certify the election of representatives and making such certifi¬ 
cate of election prima facie evidence, etc., was repealed by any provision of the act 
of Congress, but it is claimed that the provision of the ordinance constituting the 
Territorial board of canvass worked a repeal by superseding the requirement of 
such a certificate from the county clerk. The argument of the majority of the com¬ 
mittee in favor of such a repeal is founded partly upon a mistake as to fact, and is 
otherwise an argument ab inconvenienti. The former, of course, fails when the mis¬ 
take is shown, and the latter can not avail against the express provision of the law. 

There is no necessary inconsistency between the requirements that one set of offi¬ 
cials should canvass and another official should declare the result. The fact that such 
requirements are often made in State laws would seem to settle the matter of their 
propriety and convenience. Indeed, a most conspicuous example of this is the pro¬ 
vision of the act of Congress with which we are concerned in this case, that directs 
that the governor of the State shall make the certificate of the election by the legis¬ 
lature of a United States Senator. Under the Territorial laws of Montana the 
power to issue a certificate of election to a Delegate in Congress was given to the 
governor after the canvass was made by the Territorial board. So in this case there 
is no inconsistency between the power of the said board to canvass the returns of 
elections for State representatives and the direction to the county clerk of the 
county from which they were elected to issue to them certificates of such election. 

The majority of the committee are mistaken when they say as a foundation for 
their argument that the county clerks can not be supposed to have official informa¬ 
tion of the result of the final canvass of the Territorial board, because they had no 
official relation to said board, while they did have such a relation to the county 
boards of canvass, whose action they were required to certificate. On the contrary, 
the law of the Territory, prior to the creation of this Territorial board of canvass, 
is an example of the provision for one set of officials to canvass and for another 

S. Doc. 11-48 



754 


SENATE ELECTION CASES. 


official to certify the result, because the county clerk is not the clerk of the county 
board of canvass and has no ex officio relation to it. 

If the county board of canvass appoint him a clerk of their hoard it is done pre¬ 
cisely as they might appoint any other person, or as the Territorial board of canvass 
might appoint him. As the county clerk has a convenient opportunity to know the 
result of the election in his own county of representatives to the legislative assem¬ 
bly, there can he no great inconvenience in his acquiring the information as to the 
verifying and confirming of that result by the Territorial board; hut whether it he 
convenient or inconvenient, can not determine the question of the implied repeal 
of express law hy a subsequent enactment. 

Finding, therefore, that the five members from Silver Bow County in the court-house 
house of representatives had certificates of election from the county clerk of Silver 
Bow County is, in this view of the law, sufficient to justify the Senate in recognizing 
their de facto title to sit as such, and thus hind us to the same conclusion as was 
arrived at above on independent grounds, viz, that Messrs. Clark andMaginnis were 
chosen United States Senators by a legally constituted joint legislative assembly of 
the State of Montana, and that Messrs. Sanders and Power were not so chosen. 

In this connection it is interesting to observe that this question as to the validity 
and effect of these certificates of the county clerk arose before the convening of the 
legislative assembly. The opinion of the attorney-general of the State was asked 
upon the question, and after an examination of the law he decided, and announced 
his opinion in writing, that the clerk of the board of county commissioners was to 
issue the certificates. The question also came before Judge Blake, the present chief 
justice of the State of Montana (and who declined to sit in the case of Thompson vs. 
Kenney, auditor, etc.), in a case where a mandamus was prayed for, by a member of 
the legislature who claimed to be elected, on the county clerk of Jefferson County 
to issue the certificate to him. Judge Blake issued an alternative writ, and in obe¬ 
dience thereto the clerk issued the certificate as prayed. 

Then the secretary of the Territory (a Republican) was asked the same question, 
and he responded unequivocally that the certificates of election must be issued to 
members of the legislature by the clerks of the boards of county commissioners of 
the several counties. Then the governor examined the question and reached the 
same conclusion, and so it was understood all over the Territory. The statements 
were made by the counsel for Messrs. Clark and Maginnis before the committee, and 
it is not known by the undersigned that they have ever been denied. 

All, then, were of one mind, Republicans and Democrats alike, that notwithstand¬ 
ing these ordinances of the constitutional convention there was no inconsistency, 
and the officer who, by positive statute, was required to issue the certificates, would 
still issue them. This remarkable concensus of opinion would undoubtedly have 
governed the organization of the legislative assembly but for the fierce heat of the 
political ambitions which dissolved it. But it should be none the less impressive to 
the judicial mind of the Senate. 

Basing its judicial finding on these two several grounds, either of which is suffi¬ 
cient therefor, the Senate will have kept within the lines of safe precedent, and has 
not lost sight of its own federative characler and organization and of the fact that 
its members represent the States in their organized capacities as sovereignties under 
the Constitution. 

The existence of this appropriate legal evidence of the election of these said five 
members, to which we have above referred, has not rendered it necessary that we 
should resort, as we might and must have resorted in its absence, to the finding of 
the only body clothed with judicial power, which by law stood between the electors 
of Silver Bow County and the announcement of the result of the election; that is, 
the judges of the election for precinct 34 of said county. 

They were required by law to pass upon the qualifications of each elector as he 
presented his ballot. Behind their finding of the lawful right of each ballot to be 
in the box, to be counted, the Senate, in the opinion of the undersigned, is not per¬ 
mitted to go. In exercising its judicial function it is bound by that finding. 

But inasmuch as the aspersion of the integrity of the vote and the fairness of the 
poll at said precinct, made by interested parties before the committee, seems to have 
made some impression upon the majority thereof, the undersigned think it right in 
closing this report to say a word in regard thereto. That this aspersion is unfounded 
and unjust will abundantly appear by the affidavits of the judges who held the 
election, a majority of whom were opposed in politics to the majority of the voters. 
Copies of these affidavits are attached to this report as an appendix. Their substance 
has been hereinbefore recited, and need not be again quoted. 

It is sufficient to say, referring to the sworn testimony in the record, that there is no 
proof that the election was not fairly conducted and the count honestly and publicly 
made according to the requirements of law. It seems like trifling with the Senate to 
dwell upon the ex parte affidavit of the Democratic judge, O’Reagan, as showing that 
the public were excluded from the room in which the count was made and thatnews- 


CLARK AND MAGINNIS VS. SANDERS AND POWER. 


755 


papers were pasted over the lower sash of the window of said room, the fact being 
apparent that the affidavit was carefully and artfully framed for an illiterate man 
by the plotters for the suppression of the vote of said precinct. 

On this point it will, we think, appear to be clearly established by the affidavits of 
other and less interested parties that the public were not excluded from the room 
during the count. That the door was locked only while the judges had adjourned 
the count that they might eat supper, or while it was necessary to exclude a drunken 
and disorderly person who was interfering with the conduct of the count. That the 
paper over the lower sash of the window was not put there by the said judges or 
officers of the election, but had been pasted there months before by the occupant of 
the store to which saul room belonged. Trivial and technical as these objections to 
the regularity of the election and the returns appear, and far as they are from touch¬ 
ing the honesty and fairness of the same, or from going to the point that the result 
was in any way affected by the matters objected to, they also for the most part fail 
to be supported by the facts or the law. 

Some of these objections have already been alluded to and need not again be men¬ 
tioned. Another on which much stress is laid by the majority of the committee, is 
that the poll list, which they allege was required to be kept of the voters as their 
votes were cast, and which was returned by the judges to the county board of can¬ 
vass, appears to be in alphabetical order. The explanation is this, that the registry 
law of Montana passed, March 8,1889, under which, for the first time, an election was 
held on the said first Tuesday of October, 1889, provided in its tenth section as fol¬ 
lows : 

‘•'The registry agent shall prepare and complete, not later than two days next pre¬ 
ceding that on which the election is to be held, in ‘index books/ one for each elec¬ 
tion precinct, and which shall be known as the ‘check lists/ lists of the names of 
all electors found on the official register, for such election precincts, alphabetically 
arranged (the surname first), with the number such name bears in the official regis¬ 
ter placed at the left of the name of the elector, and with a blank column at the 
right of the column of names, formed by two parallel perpendicular lines, in which 
the judges of election shall check the names of those voting by some particular char¬ 
acter, thus: ‘V’ for voted; said blank columns last mentioned shall have written 
headings made by the registry agents, showing what particular election the said 
‘check lists’ apply to, as, for instance, ‘Voted at the general election, 1888.' The 
copy of the official register, together with the ‘check lists’ for election precinct, 
as herein provided, shall be carefully preserved and duly certified to by the registry 
agent, and delivered, togther with affidavits of objection, to some one of the judges 
of election in each election precinct, at a time not later than the day next preceding 
that on which such election is to be held, and such ‘ check lists ’ shall be carefully 
preserved, and any surrendered certificates which may have come into the hands of 
such registry agents pursuant to this act, and after election they shall be transmit¬ 
ted by the judges of election to the clerk of the board of county commissioners, in 
connection with and as a part of the ‘election returns/ as provided by law.” 

A “ check list,” as provided by this section, was duly furnished to the judges of 
said election precinct 34, and the names of those who voted were “checked” or 
marked with a letter V, as their ballots were deposited. (A specimen page of their 
check list is attached to this report as an appendix.) 

From this list, so marked, a copy was made of the names of those who were 
checked as voted and returned by the clerks and judges, as the poll list of the pre¬ 
cinct, to the county canvassing board. This list was naturally in alphabetical order, 
but no suspicion can properly arise from that fact so explained. Even if it were 
not the exact poll list required by the old law prior to the recent registry law, it 
could not have affected in any way the integrity of the election or the count. 
Except that it did not give the order of voting, it gave as accurate and reliable infor¬ 
mation as to who, and how many voted, as a list of names written down as the votes 
were cast could possibly do. 

The undersigned have before them duly certified copies of the checklist furnished 
under the hand of the registry agent to the said judges of election of precinct 34, 
upon which the said marking or checking was done, and of the said poll list made 
as aforesaid and returned by said judges with their returns to the county clerk. 
The undersigned regret that the first of these papers, asked for by them, arrived 
too late to be included in the statement of facts made by order of the committee. 
They have also before them a certified copy of the poll book, or list, of precinct 17 
of said Silver Bow County, returned by the judges of said election of October 1, 
1889, to the county clerk of said county, on which appear 199 names of voters, and 
all in alphabetical order. So that it would seem that it was not an entirely unique 
impression that was made on the minds of the election officers of precinct 34, that 
the requirement of the registry law of 1889 as to a check list superseded and repealed 
the old provision as to a separate poll list, as each performed the same function. 
The certified poll list of said precinct 17 will be attached hereto as an appendix. 


75 6 


SENATE ELECTION CASES. 


The fact that the “poll list” of this precinct 17 was in alphabetical order does 
not seem to have excited any suspicion on the part of these schemers in Montana to 
throw out the vote of precinct 34, and who were so hypercritical as to the regularity 
of all matters touching the returns from the same. Perhaps the alleged fact that 
the Republican votes on said last mentioned list were as two to one of the Demo¬ 
cratic votes may explain this want of zeal. Much stress is laid by the majority of 
the committee on the remoteness of the said precinct 34 from the settled part of the 
county, and the fact that quite a number of the 174 votes cast were by aliens and 
by men who were in that locality for the purpose of working in the construction of 
a railroad then being built. 

Part of this objection is too illiberal and unAmerican for serious notice. Though 
it is worth while to remark, in passing, that these men lived only from 9 to 12 miles 
from Butte, the wealthiest and most populous town in the State, and county seat of 
Silver Bow County. The fact of their residence in the Territory and county for 
the period required by law was passed upon by the registry agent, and the oppor¬ 
tunity for challenge on this or other grounds given under the law for an interval of 
seven days, and afterwards at the polls, together with the presumption in favor of 
the due performance of duty by these officers, and the utter absence of all proof to 
rebut such presumption, should, it seems to the undersigned, set at rest all question 
on these points. But, for the satisfaction of the Senate and of all who are inquisi¬ 
tive as to the legality and fairness of the election at these polls, it is interesting to 
know that the question of legal residence was recently passed upon by a court of 
the State of Montana of competent jurisdiction, in a suit in which the due election 
of the sheriff of said Silver Bow County was directly in issue, and to whose election 
the votes cast at precinct 34 were necessary. The court in its opinion and finding 
of fact says: 

“ The official returns, then, and this certificate which they support, make out a 
prima facie case for respondent, and uncontradicted and unimpoached would entitle 
him to judgment and the office. The inquiry, however, does not stop here, but con¬ 
testant is permitted to go further and to show, if he can, that persons who were not 
qualified electors voted at said election for respondent, or that legal votes cast for 
contestant were by the election officers not counted for him, or were counted for 
respondent, or that they counted more votes for respondent than were cast for him, 
or any other legal cause why votes counted by the election officers for respondent 
should be rejected, or votes cast for himself should be counted and he declared 
elected. Contestant offered no proof of an illegal lack of qualification charged in 
statement against sixty-five persons who voted at precinct No. 34 for respondent, 
and whom he claimed had not been residents of Montana Territory for six months 
and of Silver Bow County for thirty days immediately preceding the date of said 
election, and he must be taken to have abandoned that cause of complaint in his 
statement altogether. He relies entirely on the lack of qualification of persons who 
voted at precincts Nos. 26 and 34, who were aliens, had never declared their intention 
before the clerk of a court of record, at his office, but had made their declaration of 
intention before deputy clerks, away from the office, which deputies, it is alleged, 
issued fraudulent certificates of election to said persons, being fraudulent for the 
alleged reason that no record of the declaration had been made; and the appoint¬ 
ment of said deputies, it is contended, were invalid and their acts unauthorized, 
their appointment and official oaths not having been spread upon the journal of the 
court; and upon evidence to show fraud and impeach the returns of the election 
officers at precinct No. 24.” 

The court, in the sentences last above quoted, states the remaining objection made 
to the legality of some of the votes cast at precinct 34 and another precinct, and 
about which the majority of the committee seem greatly concerned. But in the 
same finding and opinion of the court in the case just stated this objection is elabo¬ 
rately considered and disposed of. The court decides that when the act of Congress 
was so changed as to prescribe that these sworn declarations of intention couid be 
taken before the clerk instead of in the court, it permitted them to be taken in any 
place outside of the court that might be convenient and where the clerk might be. 
This was also the ruling of the supreme court of Michigan in a recent case, Andres 
vs. Judge of Circuit Court, decided October 25,1889. 

Campbell, J., in delivering the opinion of the court, says: 

“There is no substantial reason why a clerk must be in his office or in court for 
this purpose, any more thau for any other ministerial act not pertaining to court 
business. There is no law requiring him to be in any particular place to administer 
affidavits. 

* ***** * 

“There is no reason why an oath may not be taken before him at any place where 
he may happen to be, as well as before a judge, or notary, or commissioner. He is 
the person indicated by the law. When it dispenses with his action in open court, 
it dispenses with the only locality which is universally known for clerical action; 


CLARK AND MAGINNIS VS. SANDERS AND POWER. 


757 


and we can not require his action under the naturalization laws to he held in any 
particular spot, or room, or building without adding to the law a qualification of our 
own not indicated by its language and not required by any of its purposes.” 

This is sound reasoning, and whatever we may think of the general question of 
propriety on the part of the clerk in leaving his office for this purpose, it will hardly 
do to say that the men so qualified voted illegally in this respect at said precinct 34. 
The Montana State court, in the case above referred to, say that it had been the habit 
in the Territory tor aliens to make their declarations of intention in this manner. 
As this opinion is interesting and valuable on other points that concern this elec¬ 
tion, and contains a complete answer to all these objections, it is in part printed as 
an appendix hereto. 

It is unnecessary to comment further on the character of these objections. They 
are not even plausible, and the undersigned think that the majority of the commit¬ 
tee have been misled in indorsing them. It is not uncommon for a party who is 
prejudiced by a record to resort to some method of destroying it or impeaching it. 
And where the method is questionable and illegal this is not only recognized as 
criminative of the party making use of it, but as the strongest proof of the truth 
and genuine authenticity of the record so attacked. Omnia presumuntur contra spoli- 
atorum. There is, in the opinion of the undersigned, no room to question that the 
election at said precinct 34 was fairly conducted; that the electors voted without 
intimidation or undue influence exercised toward them from any source; and the 
votes so cast were fairly counted and honestly returned. 

Elections under our form of government must be conducted by the plain people of 
the country. That this should be so is one of the greatest securities to, as well as 
one of the cliiefest glories of, our scheme of self-government. The officers and all 
the machinery of the elections are provided for by laws of their own making, and 
furnished from the vicinage of the election precinct. 

It is essential to the working of such a system that substance and not form should 
be first regarded. This wholesome American doctrine is well laid down by Judge 
McCrary, quoting the language of the report of the election committee of the House 
of Representatives in an important case: 

“Your committee feel constrained to adhere to the law as it exists and is adminis¬ 
tered in all the courts of the country, not only because of the very great authority 
by which it is supported, but for the further reason, as stated in the outset, that we 
believe the rule to be most wise and salutary. The officers of election are chosen of 
necessity from among all classes of the people; they are numbered in every State by 
thousands; they are often men unaccustomed to the formalities of jegal proceedings. 
Omissions and mistakes in the discharge of their ministerial duties are almost inev¬ 
itable. If this House shall establish the doctrine that an election is void because an 
officer thereof is not in all respects duly qualified, or because the same is not con¬ 
ducted strictly according to law, notwithstanding it may have been a fair and free 
election, the result will be very many contests, and, what is worse, injustice will be 
done in many cases. It will enable those who are so disposed to seize upon mere tech¬ 
nicality in order to defeat the will of the majority.” 

In the opinion of the undersigned the Senate can not adopt the resolution reported 
by the majority of the committee without, practically, making itself a party to the 
sharp practices and questionable methods by which heated partisans have sought to 
suppress the votes honestly cast at said precinct 34. Nor can it adopt it without 
disregarding those safe rules of judicial action, established by high authority, ad¬ 
hered to in previous cases and which, we have endeavored to show, commend them¬ 
selves to a sober judgment, by their consonance with sound reasoning and the genius 
of our political system. 

The undersigned, therefore, respectfully submit, as an amendment to the resolutions 
reported by the committee, the following: 

Resolved, That the word “not” be stricken out of the first two resolutions and that 
the word not be inserted between the words “is” and “entitled” in last two of the 
resolutions so reported by the committee, so that said resolutions shall read: 

“liesolved , That William A. Clark is entitled to be admitted to a seat in the Senate 
from the State of Montana. 

“liesolved , That Martin Maginnis is entitled to be admitted to a seat in the Senate 
from the State of Montana. 

“Resolved , That Wilbur F. Sanders is not entitled, upon the merits of the case, to 
be admitted to a seat in the Senate from the State of Montana. 

“ Resolved, That Thomas C. Power is not entitled, upon the merits of the case, to be 
admitted to a scat in the Senate from the State of Montana.” 

Z. B. VANCE. 

J. L. PUGH. 

GEORGE GRAY. 

DAVID TURPIE. 


758 


SENATE ELECTION CASES. 


Monday, March 31, 1890. 

On motion by Mr. Hoar, 

The Senate proceeded to consider the report of the Committee on Privileges and 
Elections on the contested seats in the Senate from the State of Montana. 

Wednesday, April 2, 1891. 

On motion by Mr. Hoar, 

The Senate resumed the consideration of the report of the Committee on Privileges 
and Elections on the contested-election cases from the State off Montana; and 

The question being on the first resolution reported by the committee, viz: 

Resolved, That William A. Clark is not entitled to be admitted to a seat in the 
Senate from the State of Montana. 

[The debate appears on pp. 2906 to 2919, Cong. Record, 1st sess. 51st Cong.] 

Thursday, April 3, 1890. 

The Presiding Officer (Mr. Cockrell in the chair), at 1 o’clock p. m., laid before the 
Senate the unfinished business at its adjournment yesterday, viz, the report of the 
Committee on Privileges and Elections in the contested-election cases from the State 
of Montana; and 

The Senate resumed the consideration of the report; and, after debate, 

Ordered, That the further consideration thereof be postponed to Monday next. 

[The debate will be found at pp. 2968 to 2997, Cong. Record, 1st sess. 51st Cong.] 

Monday, April 7, 1890. 

The Senate resumed the consideration of the report of the Committee on Privi- 
liges and Elections on the contested-election cases from the State of Montana. 

[The debate will be found at pp. 3101 to 3114, Cong. Record, 1st sess. 51st Cong.] 

Tuesday, April 8, 1890. 

On motion by Mr. Hoar, 

The Senate resumed the consideration of the report of the Committee on Privi¬ 
leges and Elections on the contested-election cases from the State of Montana. 

[For the debate see pp. 3136 to 3145, Cong. Record, 1st sess. 51st Cong.] 

Wednesday, April 9, 1890. 

On motion by Mr. Hoar, 

The Senate resumed the consideration of the report of the Committee on Privileges 
and Elections on the contested-election cases from the State of Montana. 

[The debate may be found on pp. 3188 to 3200, Cong. Record, 1st sess. 51st Cong.] 

Thursday, April 10, 1890. 

On motion by Mr. Hoar, 

The Senate resumed the consideration of the report of the Committee on Privileges 
and Elections on the contested-election cases from the State of Montana. 

[For the debate see pp. 3228 to 3231 and 3232 to 3249, Cong. Record, 1st sess. 51st 
Cong.] 

Friday, April 11, 1890. 

On motion by Mr. Hoar, 

The Senate resumed the consideration of the report of the Committee on Privileges 
and Elections on the contested-election cases from the State of Montana, 

[The debate will be found on pp. 3279 to 3292, Cong. Record, 1st sess. 51st Cong.] 

Tuesday, April 15, 1890. 

On motion by Mr. Hoar, 

The Senate resumed the consideration of the report of the Committee on Privileges 
and Elections on the contested-election cases from the State of Montana. 

[The debate will be found on pp. 3378 to 3394, Cong. Record, 1st sess. 51st Cong.] 

^ . Wednesday, April 16, 1890. 

On motion by Mr. Hoar, 

The Senate resumed the consideration of the report of the Committee on Privileges 
and Elections on the contested election cases from the State of Montana; and & 

Pending debate, • 

On motion by Mr. Butler, at 2 o’clock and 25 minutes p. m., that the Senate ad¬ 
journ, 

It was determined in the negative, j . 

On motion by Mr. Paddock, 

The yeas and nays being desired by one-fifth of the Senators present, 




CLARK AND MAGINNIS VS. SANDERS AND POWER. 759 


Mr. Hampton voted in the affirmative. 

Those who voted in the negative are, 

Messrs. Aldrich, Allen, Allison, Berry, Butler, Chandler, Cockrell, Colquitt, Cullom, 
Daniel, Davis, Dawes, Dixon, Dolph, Eustis, Evarts, Faulkner, Gorman, Gray, Hale, 
Harris, Higgins, Hoar, Jones of Arkansas, McMillan, McPherson, Mitchell, Moody, 
Morgan, Morrill, Paddock, Pettigrew, Platt, Pugh, Quay, Sawyer, Sherman, Spooner, 
Squire,Stewart, Stockbridge, Teller, Turpie, Vance, Vest, Voorhees, Walthall, Wilson 
of Iowa. 

So the motion was not agreed to. 

After further debate, 

On the question to agree to the first resolution reported by the committee, viz: 

Resolved , That William A. Clark is not entitled to be admitted to a seat in the Sen¬ 
ate from the State of Montana, 

On motion by Mr. Butler, that the question be recommitted to the Committee on 
Privileges and Elections, 


It was determined in the negative, 


( Yeas. 26 


( Nays 


32 


On motion of Mr. Butler, 

The yeas and nays being desired by one-fifth of the Senators present, 

Those who voted in the affirmative are: 

Messrs. Barbour, Berry, Blackburn, Call, Coke, Colquitt, Daniel, Eustis, Faulk¬ 
ner, George, Gibson, Gorman, Gray, Hampton, Harris, Jones of Arkansas, Kenna, 
Morgan, Payne, Reagan, Turpie, Vance, Vest, Voorhees, Walthall, Wilson of 
Maryland. 

Those who voted in the negative are: 

Messrs. Allen, Allison, Blair, Casey, Cullom, Davis, Dawes, Dixon, Evarts, Frye, 
Hale, Higgins, Hiscock, Hoar, Jones of Nevada. McMillan, Mitchell, Moody, Morrill, 
Paddock, Pettigrew, Platt, Quay, Sawyer, Sherman, Spooner, Squire, Stewart, 
Stockbridge, Teller, Washburn, Wilson of Iowa. 

So the motion was not agreed to. 

On motion by Mr. Hoar, and by unanimous consent, 

Ordered, That the first two resolutions reported by the Committee on Privileges 
and Elections, viz: 

Resolved, That William A. Clark is not entitled to be admitted to a seat in the Sen¬ 
ate from the State of Montana; 

Resolved, That Martin Maginnis is not entitled to be admitted to a seat in the 
Senate from the State of Montana, be treated as one question. 

On motion by Mr. Gray to amend the resolution by striking out all after the first 
word “Resolved” and in lieu thereof inserting: 

That Wilbur F. Sanders is not entitled to be admitted to a seat in the Senate from 
the State of Montana; 

Resolved, That Thomas C. Power is not entitled to be admitted to a seat in the 
Senate from the State of Montana, 

It was decided in the negative, j g." * *' ‘ .. 32 

On motion by Mr. Gray, 

The yeas and nays being desired by one-fifth of the Senators present, 

Those who voted in the affirmative are: 

Messrs. Barbour, Berry, Blackburn, Call, Coke, Colquitt, Daniel, Eustis, Faulkner, 
George, Gibson, Gorman, Gray, Hampton, Harris, Jones of Arkansas, Kenna, Mor¬ 
gan, Payne, Reagan, Turpie, Vance, Vest, Voorhees, Walthall, Wilson of Maryland. 

Those who voted in the negative are: 

Messrs. Allen, Allison, Blair, Casey, Cullom, Davis, Dawes, Dixon, Evarts, Frye, 
Hale, Higgins, Hiscock, Hoar, Jones of Nevada, McMillan, Mitchell, Moody, Mor¬ 
rill, Paddock, Pettigrew, Platt, Quay, Sawyer, Sherman, Spooner, Squire, Stewart, 
Stockbridge, Teller, Washburn, Wilson of Iowa. 

So the amendment was not agreed to. 

The question recurring on agreeing to the resolutions, 

It was determined in the affirmative, j ^ays I!”!!”””!..!"!””!!”!” 19 


On motion by Mr. Hoar, 

The yeas and nays being desired by one-fifth of the Senators present. 

Those who voted in the affirmative are: 

Messrs. Allen, Allison, Barbour, Blair, Casey, Cullom, Davis, Dawes, Dixon, Evarts, 
Frye, George, Gibson, Hale, Higgins, Hiscock, Hoar, Jones of Nevada, Kenna, Mc¬ 
Millan, Mitchell, Moody, Morrill, Paddock, Pettigrew, Platt, Plumb, Quay, Sawyer, 
Sherman, Spooner, Squire, Stewart, Stockbridge, Teller, Walthall, Washburn, Wilson 
of Iowa. 








760 


SENATE ELECTION CASES. 


Those who voted in the negative are: 

Messrs. Berry, Blackbnrn, Call, Coke, Colquitt, Daniel,Eustis,Gorman,Gray, Hamp¬ 
ton, Harris, Jones of Arkansas, Morgan, Reagan, Turpie, Vance, Vest, Voorhoes, Wil¬ 
son of Maryland. 

So the resolutions were agreed to. 

On motion by Mr. Hoar, and by unanimous consent, 

Ordered , That the last two resolutions reported by the Committee on Privileges 
and Elections, viz: 

Resolved , That Wilbur F. Sanders is entitled, npon the merits of the case, to be 
admitted to a seat in the Senate from the State of Montana; 

Resolved, That Thomas C. Power is entitled, npon the merits of the case, to be 
admitted to a seat in the Senate from the State of Montana; be treated as one ques¬ 
tion; and 

On the question to agree thereto, 

On motion by Mr. Butler, to amend the resolutions by striking out all after the 
first word, u Resolved” and in lieu thereof inserting: 

That it is the judgment of the Senate that there has been no choice of United 
States Senators from the State of Montana, 

( Yfifia 93 

It was determined in the negative, ^ ^ g . 20 

On motion by Mr. Butler, 

The yeas and nays being desired by one-fifth of the Senators present, 

Those who voted in the affirmative are: 

Messrs. Barbour, Blackburn, Call, Coke, Colquitt, Daniel, Faulkner, George, Gib 
son, Gorman, Gray, Hampton, Harris, Jones of Arkansas, Kenna, Morgan, Payne 
Reagan, Turpie, Vance, Voorhees, Walthall, Wilson of Maryland. 

Those who voted in the negative are: 

Messrs. Allen, Allison, Blair, Casey, Cullom, Davis, Dawes, Dixon, Evarts, Frye, 
Hale, Higgins, Hiscock, Hoar, Jones of Nevada, McMillan, Moody, Morrill, Petti¬ 
grew, Platt, Quay, Sawyer, Sherman, Spooner, Squire, Stewart, Stockbridge, Teller, 
Washburn, Wilson of Iowa. 

So the amendment was not agreed to. 

The question recurring on agreeing to the resolutions, 

It was determined in the affimative, j .^" *^6 

On motion by Mr. Gray, 

The yeas and nays being desired by one-fifth of the Senators present, 

Those who voted in the affirmative are: 

Messrs. Allen, Allison, Blair, Casey, Cullom, Davis, Dawes, Dixon, Evarts, Frye, 
Hale, Higgins, Hiscock, Hoar, Jones of Nevada, McMillan, Mitchell, Moody, Mor¬ 
rill, Paddock, Pettigrew, Platt, Quay, Sawyer, Sherman, Spooner, Squire, Stewart, 
Stockbridge, Teller, Washburn, Wilson of Iowa. 

Those who voted in the negative are: 

Messrs. Barbour, Berry, Blackburn, Call, Coke, Colquitt, Daniel, Eustis, Faulk¬ 
ner, George, Gibson, Gorman, Gray, Hampton, Harris, Jones of Arkansas, Kenna, 
Morgan, Payne, Reagan, Turpie, Vance, Vest, Voorhees, Walthall, Wilson of Mary¬ 
land. 

So the resolutions were agreed to. 

Mr. Wilbur F. Sanders and Mr. Thomas C. Power appeared, and the oath pre¬ 
scribed by law having been administered to them by the Vice-President, they took 
their seats in the Senate. 

[This day’s proceedings may be found on pp. 3419 to 3435, and 3433 to 3435, 
Cong. Record, 1st sess., 51st Cong.] 


COMPENSATION OF CONTESTANTS. 


Friday, July 18, 1890. 

Mr. Gray, from the Committee on Privileges and Elections, reported the following 
resolution; which was referred to the Committee on Appropriations: 

Resolved , That there be allowed out of the contingent fund of the Senate to Wil¬ 
liam A. Clark and Martin Maginnis the sum of $5,000 each, in full compensation for 
their time and expenses in prosecuting their respective claims to seats in the Senate 
as Senators from the State of Montana. 

[These sums were appropriated by “ An act making appropriations to supply defi¬ 
ciencies in the appropriations for the fiscal year ending June 30, 1890, and for" prior 
years and for other purposes,” approved September 30, 1890. (26 St. L,. 529.) The 

same act appropriated “ to enable the Secretary of the Senate to pay Wilbur F. Sanders 
and Thomas C. Power their counsel fees and expenses in defending the title to their 
seats, $2,453. (II. 529.)] 49 






SHOUr AND MCCONNELL. 


761 


[Second session—Fifty-first Congress.] 

GEORGE L. SLIOUP and WILLIAM J. McCONNELL, 

of Idaho. 


December 29, 1890, a statement of the governor of Idaho transmitting a certified copy of the proceed¬ 
ings of the joint con vention of the legislature of that State in which three Senators were elected, one 
for the term beginning March 4, 1890, was presented to the Senate, and on the same day the credentials 
of Messrs. Shoup and McConnell, as Senators, were presented. Mr. Shoup, who was present, was 
sworn and took his seat. The credentials were on the same day referred to the Committee on Privi¬ 
leges and Elections, which reported that the credentials presented a sufficient certificate of the execu¬ 
tive of the State under its seal and countersigned by the secretary of state, and recommended that Mr. 
McConnell be also sworn and admitted to a seat. The report was adopted and Mr. McConnell was 
sworn. 

The history of the case here given consists of a transcript of the Journal of the Senate relating to it. 
The report ot the committee, No. 1904, Sen. Rep., 2d Sess. 51st Cong., being spread at length on the 
Journal, is not repeated below. The proceedings of the legislature of Idaho appear more fully in the 
case of Claggett v. Dubois, below. 


Monday, December 29, 1890. 

The Vice-President laid before the Senate a communication from the governor of 
Idaho, transmitting a certified copy of the proceedings of the joint session of the 
legislature of Idaho for the election of United States Senators, at Boise City, Idaho, 
December 18, 1890. 

Ordered , That it lie on the table. 

[This paper as printed on p. 847, Cong. Record, 2d Sess., 51st Cong.] 

The Vice-President laid before the Senate llie credentials of George L. Shoup and 
the credentials of William J. McConnell, elected Senators by the legislature of the 
State of Idaho; which were read. 

On motion by Mr. Vance, that the credentials be referred to the Committee on 
Privileges and Elections, 

On motion by Mr. Hoar, 

Ordered, That George L. Shoup, whose credentials have been read, be now sworn 
and admitted as such Senator, 

Whereupon 

Mr. Shoup appeared and the oath prescribed by law having been administered to 
him by the Vice-President, he took his seat in the Senate. 

[Mr. McConnell was not present.] 

The question recurring upon the motion of Mr. Vance to refer the credentials to 
the Committee on Privileges and Elections, 

After debate, 

On motion by Mr. Hoar that the motion to refer lie on the table, 

The yeas were 22 and the nays were 15. 

On motion by Mr. Harris, 

The yeas and nays being desired by o^ e-fifth of the Senators present, 

Those who voted in the affirmative are: 

Messrs. Aldrich, Allen, Casey, Dolph, Evarts, Frye, Hawley, Higgins, Honr, 
McMillan, Mitchell, Morrill, Plumb, Power, Sanders, Sherman, Spooner, Stewart, 
Stock bridge, Teller, Washburn, Wolcott. 

Those who voted in the negative are: 

Messrs. Bate, Cockrell, Coke, Edmunds, Gibson, Gorman, Harris, Kenna, McPher¬ 
son, Morgan, Pasco, Pugh, Reagan, Vance, Vest. 

The number of Senators voting not constituting a quorum, 

The Vice-President directed the roll to be called; 

When 

Fifty-four Senators answered to their names. 

A quorum being present, 

By unanimous consent the order for the yeas and nays was rescinded; and the 
motion to lay on the table was withdrawn by Mr. Hoar; 

When, 

The motion to refer the credentials to the Committee on Privileges and Elections 
was agreed to. 

[For the debate see pp. 843-848 Cong. Record, 2d Sess. 51st Cong.] 


762 


SENATE ELECTION CASES, 


January 5, 1891. 

Mr. Hoar, from the Committee on Privileges and Elections, to whom were referred 
the credentials of George L. Shoup and William J. McConnell, as Senators from the 
State of Idaho r submitted the following report (No. 1904): 

The Committee on Privileges and Elections, to whom were referred the creden¬ 
tials of George L. Shoup and William J. McConnell, as Senators from the State of 
Idaho, have considered the same and report: 

That the said credentials constitute a sufficient certificate of the executive of the 
State under the seal thereof, properly countersigned by the secretary of said State, 
and certifying the election of Mr. Shoup and Mr. McConnell, respectively, as Sena¬ 
tors from that State. Mr. Shoup has already been admitted to take the oath and has 
taken his seat. 

The committee therefore are of the opinion that Mr. McConnell should likewise be 
admitted to take the oath as Senator, and that said credentials should be placed on 
file. 

The credentials were accordingly placed on file, 

Mr. McConnell appeared, and the oath prescribed by law having been adminis¬ 
tered to him by the Vice-President, he took his seat in the Senate. 


CLAGETT VS. DUBOIS, 


763 


[Second session Fifty-first Congress.] 

FEED T. DUBOIS, 
of Idaho . 

December 30,1800, the credentials of Mr. Fred T. Dubois, as Senator from Idaho for six years begin¬ 
ning March 4, 1801, were laid before the Senate and referred to the Committee on Privileges and Elec¬ 
tions. January 5 that committee reported that it was not customary to consider any questions arising 
on the credentials of a Senator until the term for which he claimed to be elected, and recommended 
that the credentials be placed on file. The credentials were filed accordingly. 

The history of the part of the case here given is a transcript from the Journal of the Senate, 2d seas. 
51st Cong. The report of the committee, Senate Rep. 1905, 2d sess. 51st Cong., is printed in full in 
the Journal, and therefore is not repeated. 

For further proceedings in relation to Mr. Dubois’s seat v. infra Claggett vs. Dubois. 

Tuesday, December 30, 1890. 

The Vice-President laid before the Senate the credentials of Fred T. Dubois, elected 
a Senator by the legislature of the State of Idaho for the term of six years com¬ 
mencing March 4, 1891; which were read. 

Ordered that they be referred to the Committee on Privileges and Elections. 

[The credentials are printed at p. 863, Cong. Record, 2d sess. 51st Cong.] 

Monday, January 5, 1891. 

Mr. Hoar, from the Committee on Privileges and Elections to whom were referred 
the credentials of Fred T. Dubois, as a Senator from the State of Idaho, submitted 
the following report (No. 1905): 

‘‘The Committee on Privileges and Elections, to whom were referred the creden¬ 
tials of Fred T. Dubois, as a Senator from the State of Idaho, for the term of six 
years beginning March 4, 1891, have considered the same and report: 

“That it is the usage of the Senate to consider any questions that may arise upon 
the credentials of a Senator, at a session held during the term for which the Senator 
claims to be elected, and not before; and no reason appears to the committee for a 
departure from such usage in the present case. They therefore recommend that the 
credentials be placed on file.” 

The credentials were accordingly placed on file. 


Saturday, January 10, 1891. 

The Vice-President laid before the Senate a memorial of certain members of the 
legislature of Idaho, remonstrating against the admission of FredT. Dubois to a seat 
in the Senate, as a Senator from that State; which was refeired to the Committee on 
Privileges and Elections and ordered to be printed. 

[The memorial is Sen. Mis. Doc. 44, 2d sess., 51st Cong.] 


764 


SENATE ELECTION CASES. 


[First session Fifty-second Congress.] 

WILLIAM H. CLAGETT v. FEED. T. DUBOIS, 

of Idaho . 


The first legislature of tlie State of Idaho met pursuant to proclamation by the governor, Monday, 
December 8, 1890. The house of representatives effected a permanent organization on that day. The 
senate, the lieutenant-governor being ex-officio presiding officer, after prayer, elected a clerk pro tem¬ 
pore , after which the senators were sworn, a committee on rules selected, choice of seats provided fo^T 
a setof temporary rules adopted, and, finally, a committee on organizationappointed. Tuesday, Decem¬ 
ber 9, the permanent organization was perfected by the choice of a secretary and other officers. Tues¬ 
day, December 16, being the second Tuesday after Monday, December 8, each branch of the legislature 
took one ballot, acting under joint resolution “ to elect, as provided by law, United States Senators.” 
The following day the two houses met in joint convention, and the result of the previous day’s ballot¬ 
ing showing no choice of a Senator, proceeded to ballot. Ho person was elected on this day. On the 
following day, Thursday, December 18, the joint convention elected Messrs. Shoup and McConnell Sena¬ 
tors, to fill the existingVacancies, and Mr. Dubois for the term beginning March 4,1891. Mr. Dubois’s 
credentials were issued under date of December 18, 1890. February 6, 1891, the legislature of Idaho 
voted that there was “at least grave doubt” as to the validity of the election of Fred T. Dubois, and 
to proceed to a new election. In pursuance of this resolution a new election was held, and Mr. Clag- 
ett was declared elected February 11, 1891. The governor issued credentials, certifying that fact, 
under date of February 14,1891. On the assembling of the Fifty-second Congress Mr. Dubois pre¬ 
sented himself to take the oath as Senator. Objection was made and the matter went over until the 
following day, when Mr. Dubois was sworn, and his credentials, together with a memorial of William 
H. Clagett, claiming the seat, were referred to the Committee on Privileges and Elections. The 
majority of the committee reported that “both on construction and precedent the legislature of Idaho 
was organized on Monday, December 8, A. D. 1890, within the meaning of the term ‘organization’ as used 
in the constitution of the State of Idaho, in the act of admission, and in the Revised Statutes ” (R. S. § 14), 
that “Tuesday, the 16th day of December, was, in the judgment of [the] committee, the second Tues¬ 
day after the meeting and organization of the legislature of the State of Idaho,” and that therefore 
Mr. Dubois was duly elected and entitled to retain his seat. Two of the committee dissented, con¬ 
tending that according to precedent the word “organization” meant permanent organization , that the 
permanent organization was not effected until Tuesday, December 9, that the proceedings which cul¬ 
minated in the election of Mr. Dubois did not take place on the second Tuesday thereafter, but were 
premature, and that therefore he was not entitled to the seat as Senator fromTdaho. February 25, 
pending the discussion of the report of the committee, Mr. Clagett was given the right to speak in 
his own behalf for two hours, and on the following day the limit of time was removed. March 3 Mr. 
Dubois was declared entitled to retain his seat by vote of 55 yeas to 5 nays. April 1 the committee 
recommended the payment of $2,000 to Mr. Dubois and $4,000 to Mr. Clagett, in compensation of all 
expenses incurred by them in the contest, and the resolutions were referred to the Committee on Ap¬ 
propriations. 

The history of the case here given consists of a transcript of the journal of the Senate and the report 
of the committee, Senate Reports, 1st sess., 52d Cong., Ho. 148. 


Monday, December 7, 1891. 

Mr. Hale having objected to the oath of office being this day administered to Mr. 
Frederick T. Dubois, whose credentials as Senator from the State of Idaho were here¬ 
tofore presented, 

Mr. Cullom submitted a motion that the oath prescribed by law he administered 
to Mr. Dubois; and 

Ordered , That the consideration of the motion be postponed to to-morrow. 

Tuesday, December 8, 1891. 

The Senate proceeded to consider the motion yesterday submitted by Mr. Cullom, 
that the oath of office be administered to Frederick T. Dubois, as a Senator from 
the State of Idaho; and 

The motion was agreed to, 

Whereupon, 

Mr. Dubois appeared, and the oath prescribed by law having been administered 
to him by the Vice-President, he took his seat in the Senate. 

On motion by Mr. Hale, 

Ordered, That the credentials of Frederick T. Dubois and the memorial and papers of 
William H. Clagett, claiming a seat in the Senate from the State of Idaho, be taken 
from the hies of the Senate and referred to the Committee on Privileges and Elec¬ 
tions. 


Tuesday, February 2, 1892. 

Mr. Mitchell, from the Committee on Privileges and Elections, to whom was com¬ 
mitted the investigation of the contest inaugurated by William H. Clagett, involv¬ 
ing the right of Mr. Fred T. Dubois to a seat in the Senate as Senator from the State 


CLAGETT VS. DUBOIS. 765 

of Idaho, for the full term commencing March 4, 1891, submitted a report (No. 148) 
accompanied by the following resolutions: 

Resolved , That Fred T. Dubois is entitled to hold the seat ho now holds as Senator 
from the State ol Idaho for the full term commencing March 4, 1891. 

Resolved , That William H. Clagett is not entitled to be admitted to a seat in the 
Senate Irom the State of Idaho lor the term commencing March 4, 1891. 

Thursday, February 4, 1892. 

On motion by Mr, Mitchell, 

Ordered , That leave be granted to the minority of the Committee on Privileges 
and Elections to file with the Secretary their views in the matter of the contest for 
a seat in the Senate from the State of Idaho, and that they be printed in connection 
with the report of the committee (No. 148). 

Tuesday, February 16, 1892. 

Mr. Vance presented a digest of State precedents to accompany the views of a 
minority of the Committee on Privileges and Elections in the contested election 
case from the State of Idaho, which was ordered to be printed as part 2 of the Re¬ 
port No. 148. 

REPORT OF THE COMMITTEE. 

[The committee consisted of Messrs. Teller (chairman), Iloar, Mitchell, Chandler, 
Higgins, Vance, Pugh, Gray, Turpie. ] 


In the Senate of the United States. 

February 2, 1892.—Ordered to be printed. 

Mr. Mitchell, from the Committee on Privileges and Elections, submitted the fol¬ 
lowing report: 

The Committee on Privileges and Elections, to whom was committed the investi¬ 
gation of the contest inaugurated by Mr. William H. Clagett, involving the right of 
Mr. Fred T. Dubois to a seat in the Senate as Senator from the State of Idaho for 
the full term commencing March 4, 1891, and to which seat he was admitted on his 
prima facie case on the 8th day of December, 1891, having had the same under con¬ 
sideration, beg leave to submit the following report: 

STATEMENT OF FACTS. 

There is in this case roally no material controversy in regard to the facts. The 
questions involved are of law, arising out of the construction of various constitu¬ 
tional and statutory provisions and their applicability to these facts. The sitting 
member, Mr. Dubois, and the contestant, Mr. Clagett, each claims to have been duly 
elected a United States Senator by the legislature of the State of Idaho for the full 
term above mentioned. Mr. Dubois claims to have been thus elected on Thursday, 
the 18th day of December, 1890; while Mr. Clagett claims to have been thus elected 
on Wednesday, the 11th day of February, 1891. 

Inasmuch as each claimant claims to have been elected for precisely the same 
term, and as it is conceded that the election under which Mr. Dubois claims to have 
been elected was prior in time, it follows that, if it shall be held he was duly elected, 
that is the end of the contest and he is entitled to retain his seat. Upon the other 
hand, should it be determined that Mr. Dubois was not duly elected, then, and only 
then, will it become necessary to inquire into the legality of the election of Mr. 
Clagett. 

For the purpose of determining as to the validity of the election of Mr. Dubois, 
in so far as the facts are involved, it is only necessary to consider the record of the 
proceedings of the first twelve days of the first session of the legislature of the 
State of Idaho, commencing Monday, December 8, A. D. 1890. This record, together 
with accompanying affidavits, supplying an alleged omission in such record on one 
particular point, and the truthfulness of the allegation as to such omission, and of 
its proper correction by the affidavits referred to, are not denied by the contestant, 
disclose the following facts in reference to the organization of the legislature and 
the election of Mr. Dubois: 

Before proceeding, however, to a statement of the facts thus disclosed and 
admitted, it may be said that the State of Idaho was admitted into the Union by 
act of Congress dated July 3, 1890. This act refers to and adopts the constitution 
which the people of the late Territory of Idaho had adopted prior to that time. 
The fourteenth section of article 21 of such constitution contains the following pro¬ 
vision : 

“Within ten days after the organization of the legislature both houses of the leg- 


766 


SENATE ELECTION CASES. 


islature shall then and there proceed to elect, as provided by law, two Senators of 
the United States for the State of Idaho. At said election the two persons who shall 
receive the majority of all the votes cast by said senators and representatives shall 
be elected as such United States Senators, and shall be so declared by the presiding 
officer of the said joint session. The presiding officers of the senate and house shall 
issue a certificate to each of said Senators, certifying his election, which certificate 
shall also be signed by the governor and attested by the secretary of state.” 

The act of Congress admitting the State into the Union, including the recitals, 
reads in part as follows: 

“ Whereas the people of the Territory of Idaho did, on the 4th day of July, 1889, 
by a convention of delegates called and assembled for that purpose, form for them¬ 
selves a constitution, which constitution was ratified and adopted by the people of 
said Territory at an election held therefor on the first Tuesday of November, 1889, 
which constitution is republican in form and is in conformity with the Constitution 
of the United States; and 

“Whereas said convention and the people of said Territory have asked the ad¬ 
mission of said Territory into the Union of States on an equal footing with the 
original States in all respects whatever: Therefore, 

u Beit enacted, etc., That the State of Idaho is hereby declared to be a State of the 
United States of America, and is hereby declared to be admitted into the Union on 
an equal footing with the original States in all respects whatever; and that the 
constitution which the people of Idaho have formed for themselves be, and the same 
is hereby, accepted, ratified, and confirmed.” 

Section 20 of said act admitting the State reads as follows: 

“ Sec. 20. That the legislature of the said State may elect two Senators of the 
United States, as provided by the constitution of the said State; and the Senators 
and Representatives of said State shall be entitled to seats in Congress and to all the 
rights and privileges of Senators and Representatives of other States in the Congress 
of the United States.” 

THE REVISED STATUTES PROVIDING THE TIME AND MANNER OF ELECTING UNITED 

STATES SENATORS. 

Sections 14, 15, 16, 17, 18, and 19 of the Revised Statutes of the United States, 
relating to the time and manner of the election of United States Senators, the same 
being a reenactment of the act of July 25, A. D. 1866, are for the convenience of the 
Senate here inserted. They read as follows: 

“ Sec. 14. The legislature of each State which is chosen next preceding the expi¬ 
ration of the time for which any Senator was elected to represent such State in Con¬ 
gress shall, on the second Tuesday after the meeting and organization thereof, pro¬ 
ceed to elect a Senator in Congress. 

Sec. 15. Such election shall be conducted in the following manner: Each house 
shall openly, by a viva voce vote of each member present, name one person for Sena¬ 
tor in Congress from such State, and the name of the person so voted for who re¬ 
ceives a majority of the whole number of votes cast in each house shall be entered 
on the journal of that house by the clerk or secretary thereof; or, if either house 
fails to give such majority to either person on that day, the fact shall be entered on 
the journal. At 12 o’clock meridian of the day following that on which proceedings 
are required to take place as aforesaid, the members of the two houses shall convene 
in joint assembly, and the journal of each house shall then be read, and if the same 
person has received a majority of all the votes in each house, he shall be declared 
duly elected Senator. But if the same person has not received a majority of the 
votes in each house, or if either house has failed to take proceedings as required by 
this section, the joint assembly shall then proceed to choose, by a viva voce vote of 
each member present, a person for Senator, and the person who receives the majority 
of all the votes of the joint assembly—a majority of all the members elected by 
both houses being present and voting—shall be declared duly elected. If no person 
receives such majority on the first day, the joint assembly shall meet at 12 o’clock 
meridian of each succeeding day during the session of the legislature, and shall 
take at least one vote until a Senator is elected. 

“ Sec. 16. Whenever on the meeting of the legislature of any State a vacancy exists 
in the representation of such State in the Senate, the legislature shall proceed on the 
second Tuesday after meeting and organization to elect a person to fill such vacancy, 
in the manner prescribed in the preceding section for the election of a Senator for 
the full term. 

“Sec. 17. Whenever during the session of the legislature of any State a vacancy 
occurs in the representation of such State in the Senate, similar proceedings to fill 
such vacancy shall be had on the second Tuesday after the legislature has organized 
and has notice of such vacancy. 


CLAGETT VS. DUBOIS. 


767 


11 Sec. 18. It shall be the duty of the executive of the State from which any Sena¬ 
tor has been chosen to certify his election, under the seal of the State, to the Presi¬ 
dent ol the Senate of the United States. 

u Sec. 19. I'll certificate mentioned in the preceding section shall be countersigned 
by the secretary of state of the State.” 

ORGANIZATION OF THE LEGISLATURE. 

On Monday, December 8, A. D. 1890, tlie-first legislature of the State of Idaho met, 
pursuant to the proclamation of the governor as required by section 14, article 21, of 
the constitution of the State. 

ORGANIZATION OF THE HOUSE. 

The house met at 12 o’clock meridian on Monday, December 8, A. D. 1890, in the 
hall of the house of representatives, in the capital of the State at Boise City. Neither 
the State constitution nor any statute made any provision for officers of the house. 
The house, therefore, was possessed of the inherent aud exclusive power, not only of 
electing its own officers, but also of determining the number and kind of officers to 
be elected. 

On the first day of the session, namely, Monday, December 8, 1890, the house of 
representatives, a quorum of members being present, elected a speaker and principal 
officers. The house was called to order on that day by Hon. H. J. Burkhart, 
speaker of the house of representatives of the fifteenth legislative assembly of the 
late Territory of Idaho, at the hour of 12 o’clock m., whereupon Charles H. Reed, 
chief clerk of the house of representatives of the fifteenth session of the legislative 
assembly of the late Territory of Idaho, acting as the chief clerk of the house, with 
the consent of all, there being no protest, then read the proclamation of the governor 
of Idaho convening the State legislature on that date. 

The certificate of the secretary of state was then read, certifying the names of the 
different persons elected members of the house of representatives of the first session 
of the legislature of the State of Idaho. The roll of members, as they appeared upon 
such certificate of the secretary of state, was then called. All being present, the 
oath of office was administered to the members of the house, respectively, by Hon. 
John T. Morgan, associate justice of the supreme court of Idaho. After prayer by 
Rev. L. W. Go wan, the election of a speaker having been declared in order, Mr. 
Erne ry, of Custer County, placed in nomination Mr. Frank A. Fenn, of Idaho County; 
Mr. Jones, of Boise County, placed in nomination Mr. Ballentine, of Ada County. A 
ballot was taken, which resulted as follows: 

Mr. Fenn received 29 votes; Mr. Ballentine, 5; Mr. Emery, 1; Mr. Steunenberg, 1. 
Mr. Frank A Fenn, having received a majority of all the votes cast, was declared 
duly elected speaker of the house, and was conducted to the chair by a committee 
consisting of Messrs. Price, Armstrong, and Cameron, appointed for that purpose by 
the temporary chairman. The committee presented Mr. Fenn, who was introduced 
to the house by Mr. Burkhart, the temporary presiding officer, as speaker of the 
house. 

The oath of office was then administered to the speaker by Judge Morgan, associ¬ 
ate justice of the supreme court of the State of Idaho; whereupon the house pro¬ 
ceeded to the election of a chief clerk. Mr. Charles H. Reed, who had been acting as 
temporary chief clerk, was, on a ballot being taken, elected, and declared duly 
elected by the speaker, chief clerk of the house for the ensuing session. A recess was 
then, on motion of Representative Armstrong, taken for one hour. 

The recess having expired, the house was called to order at 2 o’clock p. m., Decem¬ 
ber 8, Mr. Speaker in the chair and a quorum present, whereupon Mr. John Hunter 
was elected sergeant-at-arms; Miss Carry Sweet, assistant chief clerk; Mr. J. W. 
Jackson, doorkeeper. An enrolling clerk, an assistant enrolling clerk, an engross¬ 
ing clerk, and an assistant engrossing clerk were also each duly elected, and all the 
above-named officers were declared, respectively, to have been duly elected on that 
date, December 8, A. D. 1890. A page and a messenger were also elected, after all 
which, on motion of Mr. Hawkins, the house adjourned until 10 o’clock a. m., Decem¬ 
ber 9, 1890, the record of proceedings in the house journal being signed as follows: 

“F. A. Fenn, speaker; attest, Charles H. Reed, chief clerk.” 

No action was taken on that day, December 8, in the house looking to the possible 
election of any other officers on any future day; whether the house would elect any 
other officers during the session was uncertain. At 10 o’clock on the morning of 
Tuesday, December 9, 1890, the house of representatives reassembled, Mr. Speaker 
in the chair. Immediately after the journal was read, and which was then approved, 
» ohaplain was elected. No other officer was chosen on December 9, 1890. 


768 


SENATE ELECTION CASES. 


ORGANIZATION OF THE SENATE. 

The senate of the State of Idaho also met at 12 o'clock meridian, Monday, Decem¬ 
ber 8, A. D. 1890, in the senate chamber of the capitol of the State at Boise City. 
The State constitution of Idaho provides that the lieutenant-governor of the State 
shall be the presiding officer of the senate. The lieutenant-governor was Norman B. 
Willey, and at the hour and on the day just named, the members-elect of the senate 
beingassembled in the senate chamber of the capitol at Boise City, a quorum being 
present, were called to order by Lieutenant-Governor Norman B. Willey, acting in 
virtue of a provision in the State constitution in the capacity ot presiding officer of 
the senate. 

After prayer by the Rev. Mr. Scidmore, Senator Gunn moved that M. C. Athey be 
elected secretary of the senate pro tempore, which motion, as will appear hereafter, 
prevailed. Mr. Athey was duly elected and so declared to be by the presiding officer, 
and he immediately entered upon the duties of his office. The president of the sen¬ 
ate then read the proclamation of the governor, convening the legislature of the 
State of Idaho, at Boise City, on the 8th day of December, A. D. 1890. The presi¬ 
dent of the senate then called the roll of members as certified by the secretary of 
state, and a quorum, 16 in all—the whole number constituting the senate of the 
State of Idaho being 18—answered to their names. The oath of office was then 
administered to the senators-elect by Mr. Justice Sullivan, chief justice of the supreme 
court of the State of Idaho. 

Senator Gray then moved that the senate adjourn until 2:30 o’clock p. m. of the 
same day. This motion was carried, and the president of the senate declared the 
senate adjourned until 2:30 o’clock Monday, December 8, 1890. At 2:30 o’clock p. 
m. of the same day the senate met pursuant to adjournment, Norman B. Willey, the 
lieutenant-governor, presiding. The roll was called, which disclosed the fact that 
all the senators were present. 

Senator Gray moved that the rules of the legislative council of the fifteenth ses¬ 
sion of the late Territory be adopted, as far as consistent, for the regulation of the 
senate until the report of the committee on rules be adopted; which motion was put 
by the presiding officer, and by him declared carried. 

Motions were then made for the purpose of determining the selection of seats of 
the several senators. 

Senator Finch moved that in drawing for seats names be placed in a hat and the 
first name drawn would take seat No. 1, and so on. 

Senator Gunn moved to amend this motion by adding that the senators retain the 
seats then occupied by them, which latter motion prevailed. 

The senate then adjourned. 

These acts on the part of the senate constitute, in the judgment of your committee, 
an organization on the part of that body sufficient to enable it to exercise every 
function of a State senate, legislative and otherwise, including that of electing a 
Senator of the United States. These acts constituted an organization, in the judg¬ 
ment of your committee, within the meaning of that term as employed is section 14 
of the Revised Statutes. Whatever else may have been done by the senate, thus 
organized on Monday, December 8, 1890, either on that date or at any subsequent 
time, could not, in the opinion of your committee, invalidate such organization. 

What further did occur, we will inquire, on Monday, December 8, or subsequently, 
on which contestant rests his contention that there was no such organization on 
Monday as is contemplated by the statute? Simply this: Senator Brigham, on Mon¬ 
day, December 8, after the members had been sworn, a chief clerk elected and entered 
upon his duties, and rules adopted, moved that the president appoint a committee 
of three on organization, to designate and determine the number and order of officers 
to be filled by the senate. This motion was carried, and the president of the senate 
anpointed Senators Brigham, Gunn, and Jewell such committee. 

Senator Shoup also moved, on Monday, that a committee of five be appointed by 
the chair to report rules for the government of the senate, which motion was carried. 
This was prior to the adoption of the motion of Senator Gray that the rules of the 
legislative council of the fifteenth session be adopted as hereinbefore recited. Sub¬ 
sequent to this the president, in accordance with Senator Shoup’s motion, appointed 
as a committee on rules of government of the senate, Senators Shoup, Weiler, Lang- 
rische, and Branstetter. 

But surely these acts, so far from proving or tending to prove that there was not 
already, prior to and at the time they occurred, a perfect and complete temporary 
organization of the senate, such as would have enabled it to censure or expel a mem¬ 
ber, pass a bill, or do any other act required of it by the laws of its being, that ft 
could rightfully do after the permanent organization had been effected, conclusively, 
as it seems to your committee, prove the very reverse. Why the necessity of adopt¬ 
ing the rules of a late Territorial council if it were not understood that the senate 
was organized and in a condition to transact business? Why adopt rule? “for the 


CLAGETT VS. DUBOIS. 


769 


regulation of the senate” if there were no organized senate in existence—no senate to 
regulate. And, again, can an unorganized senate adopt rules, appoint important 
committees, etc. I 

The appointment of the committee on organization clearly had reference to a 
permanent organization. This is made plain by what occurred on Tuesday, Decem- 
p* Y n that date the journal shows the senate met pursuant to adjournment at 
10 o clock a. in. It was the senate —an organized body that met, not the members of 
the senate in their unorganized capacity. 

I he senate, says the journal, was opened by prayer by Rev. Mr. Gowan. Roll 
called ; all present. The committee appointed on Monday reported a list of offices 
to be filled by the senate, which report was adopted. This list included president 
pi o tempore oi the senate and secretary of the senate pro tempore, each of whom had 
been duly installed on Monday. These several offices were then filled by election. 
M. C. Athey, who had been elected and installed on Monday as secretary pro tempore 
of the senate, was elected as secretary of the senate. 

All this conclusively shows, in the judgment of your committee, that the senate 
itself understood there had been a temporary organization of the senate on Monday, 
and it was the permanent organization that was being effected on Tuesday, December 
9. This view is fully confirmed by the character of the notices which passed between 
the two houses on Tuesday, December 9, as each of these recites that the house 
u has permanently organized. ” 

The question as to the effect in determining the date of organization which these 
notices should have, from the fact that they were not transmitted until Tuesday, 
will be further considered later on in this report. 

The only constitutional office of the senate is that of president. Upon the senate 
in like manner, as in the case of the house, devolves the power not only of choosing 
all of its other officers, but of determining what officers were to be chosen. Each 
house, therefore, it will be observed, had, by constitutional provision as to the 
president of the senate, and by election as to the other officers named, a duly elected 
and acting (and without any protest from any source) presiding officer and chief 
clerk of each house on Monday, December 8, 1890; the house having duly elected on 
that date eleven of its officers—all but chaplain, who was elected on Tuesday, De¬ 
cember 9—while the senate had on that date (Monday, December 8) its duly elected 
and qualified presiding officer, and also a duly elected and acting secretary pro 
tempore. 

The senate reassembled at 10 o'clock a. m. on Tuesday, December 9, 1890, and as 
appears from the record, elected certain other officers, all of whom were elected 
before the adjournment at 12 o’clock meridian of December 9. 

OMISSION IN JOURNAL. 

In this connection attention is attracted to an evident omission in the journal of 
the proceedings of the senate of December 8, 1890. 

The record of the proceedings of the senate of the State of Idaho of December 8, 
A. D. 1890, recites as follows: 

“ After prayer by the Rev. Scidmore, Mr. Gunn moved that M. C. Athey be elected 
secretary of the senate pro tempore . ” 

This record, it is true, does not recite the fact that the motion was carried or that 
Mr. Athey was either elected or declared elected secretary of the senate pro tempore. 
It does appear, however, from such record that M. C. Athey acted as secretary pro 
tempore of the senate on that day without objection from ahy source, and the pro¬ 
ceedings of the senate for that day, Monday, December 8, A. D. 1890, are in the 
journal certified as follows: 

“ N. B. Willey, president of the senate. Attest: M. C. Athey, secretary pro tem. v 

The journal therefore clearly shows upon its facethat M. C. Athey acted as secretary 
pro tempore of the senate on the 8th day of December, 1890. He was on that day, as 
appears from the record of the proceedings, de facto if not de jure secretary of the 
senate pro tempore, and therefore comes within the rule laid down in the case of 
Bank vs. Dandridge (12 Wheaton, 64), by the Supreme Court of the United States, 
and which is recognized in both England and America as settled law, namely: 

“ It (the law) will presume that a man acting in a public office has been rightly 
appointed.” 

But as a matter of fact Mr. M. C. Athey was formally elected secretary pro tempore 
on Monday, December 8, A. D. 1890, in pursuance of the motion made by Mr. Gunn, as 
recited in the record, and he then immediately entered upon his duties as such sec¬ 
retary pro tempore, and the record of the proceedings of the session of the senate of 
that day is shown to be clearly defective in omitting to recite that the motion of Mr. 
Gunn that Mr. M. C. Athey be elected secretary pro tempore of the senate was adopted 
by the senate. This is made clearly apparent by the affidavits of James Gunn, the 
author of the motion; M. C. Athey, the secretury pro tempore; by H. C. Branstetter, a 

S. Doc. 1-1-±9 



770 


SENATE ELECTION CASES. 


senator, representing Ada County in said senate; and by J. M. Wells, a member of 
the senate of the State of Idaho, representing the counties of Kootenai and Latah. 
These affidavits are as follow: 

“ State of Idaho, County of Alturas, ss: 

“ James Gunn, being first duly sworn, on his oath doth say: I am the duly elected 
and qualified senator for Alturas County in the senate of the State of Idaho. As such 
senator I was in my seat in the senate of the State of Idaho on the first day of the 
last session of the said senate, the same being the eighth day of December, A. D. 
1890. As such senator I made a motion that M. C. Athey be elected secretary of 
said senate pro tern. The said motion was duly seconded, and by the president of 
the senate put to the senate, and the same was carried unanimously. Whereupon 
the said M. C. Athey did immediately enter upon and perform all the duties of secre¬ 
tary of the senate from that time henceforward, until he was, by vote of the senate, 
made the permanent secretary of the senate. That immediately upon the election of 
the said secretary, as aforesaid, the senate proceeded to the regular business of the 
session. Further deponent said not. 

“JAMES GUNN. 

“ Subscribed and sworn to before me, this twenty-eighth day of September, in the 
year of our Lord 1891. 

“[seal.] “W.H.WATT, 

“ Notary Fublic. 


“State of Idaho, County of Ada, ss: 

“ M. C. Athey, of the city of Boise, county and State aforesaid, being duly sworn, on 
his oath says: That he is the identical M. C. Athey who was elected secretary pro tern. 
of the senate of the legislature of the State of Idaho, on the eighth day of December, 
A. D. 1890, and permanent secretary of said senate, on the ninth day of December, A. 
D. 1890. That the motion made by Mr. Gunn, in the first day’s proceedings of said 
senate, which reads as follows: ‘Mr. Gunn moved that M. C. Athey beelected secre¬ 
tary of the senate pro tem.;’ upon being seconded by Senator-, was stated to 

the senate by Lieutenant-Governor Norman B. Willey, president of the senate, and a 
vote taken thereon. M. C. Athey, having received a majority of all the votes cast, was 
then and there declared elected secretary pro tem. of the senate by its president. 
That in writing up the senate roll of the first day’s proceedings the fact of Senator 
Gunn’s motion for the election of M. C. Athey as secretary pro tem. of the senate, hav¬ 
ing been pat and carried in the senate and so announced by its president, was omit¬ 
ted from the record. Affiant further saith not. 

“M. C. ATHEY. 

“ Subscribed and sworn to before me, this 29th day of August, A. D. 1891. 

“[SEAL.] “A. J. PINKHAM. 

“ Secretary of State. 

“State of Idaho, County of Ada, ss: 

“ H. Clay Branstetter, residing at Boise City, in the county and State aforesaid, 
being duly sworn, on his oath saith that on the 8th day of December, A. D. 1890, he 
was a senator, representing Ada County, State of Idaho, in the senate of the legisla¬ 
ture ; that he has carefully read the affidavit of M. C. Athey, hereto attached, and 
that the statements therein made, relating to his election as secretary pro tem. of the 
senate on said 8th day of December, A. D. 1890, and the omission in the senate jour¬ 
nal of the same date, as stated by him are true. Affiant further saith not. 

“H. C. BRANSTETTER. 

“ Subscribed and sworn to before me this 28th day of October, A. D. 1891. 

“[seal.] “A. J. PINKHAM 

“ Secretary of State. 

“State of Idaho, County of Kootenai, ss: 

“ James M. Wells, of the county and State aforesaid, being duly sworn, on his oath 
saith: lhat he was a member of the senate of the State of Idaho at its first session, 
representing the counties of Kootenai and Latah, which convened at Boise City, the 
capital of said State, on December the 8th, A. D. 1890; that after the senate was 
called to order by Lieutenant-Governor Norman B. Willey, president of the senate 
on the day and date above named, prayer was offered by Rev. Skidmore, when Sen¬ 
ator James Gunn, of Alturas County, entered the following motion: ‘Mr. Gunn 
moved that M. C. Athey be elected secretary of the senate pro tern .;’ that said mo¬ 
tion, having received a second, was stated to the senate by its president, and a vote 
taken thereon, and the result duly announced by the president of the senate that M. 



CLAGETT VS. DUBOIS. 


771 


C. Atliey had been duly elected secretary pro tem. of the senate; whereupon M. C. 
Atliey took his seat and assumed the discharge of his duties as secretary pro tem. 
Affiant further saith not. 

“J. M. WELLS. 

“ Subscribed and sworn to before me this 19th day of October, A. D. 1891. 

[seal.] “W. H. PLUMMER, 

Farmington , Wash” 

It is therefore conclusively shown to your committee that Mr. M. C. Athey was 
formally and regularly elected to the office of secretary pro tempore of the senate of 
the State of Idaho on Monday, December 8, A. D. 1890. These affidavits, it will be 
observed, do not contradict the journal. While the journal as it stands does not 
expressly prove the formal election of Mr. Athey, it does not disprove it; nor is there 
anything in it from which a presumption can be indulged in that no such formal 
election took place, or which in any manner tends to overcome the counter presump¬ 
tion in its favor raised by the fact that Mr. Athey acted as secretary pro tempore, 
which fact clearly appears by the printed journal. 

These affidavits do not contradict the journal, but simply supply an apparent 
omission in the same. Certainly the presumption is violent that some disposition 
w.is made of the motion of Mr. Guun to the effect that M. C. Athey be elected secre¬ 
tary of the senate pro tempore. The record of the proceedings of the senate of that 
date fails to disclose that any disposition was made of it; but as the journal shows 
he acted as such this fact raises a conclusive presumption not only that Mr. Gunn’s 
motion was adopted, but also that Mr. Atliey was then and there duly elected. It 
is, therefore, in the opinion of your committee, although unnecessary to constitute 
a sufficient record in this case, clearly regular to permit this evident omission to be 
supplied by evidence aliunde the record. 

To hold that the failure of the secretary pro tempore to record the fact of his own 
election could vitiate the election of a Senator of the United States would border 
very closely on an absurdity. If there is any rule which would compel a judicial 
tribunal to refuse to permit such a correction in a record—and your committee be¬ 
lieve there is not—there most certainly is none which would compel the Senate of 
the United States, in the exercise of its rightful jurisdiction of judging of the elec¬ 
tion of its members, to close its eyes to the very truth of a case when clearly demon¬ 
strated by indisputable evidence other than that of the record itself and in harmo¬ 
nious connection with it. That no such rule is recognized in judicial tribunals is 
apparent from the rule in the following cases: 

In Green v. Weller (3 Miss., 650), the supreme court of Mississippi said: 

“ In England the journals of the Lords and Commons, which are kept as memorials 
of their proceedings, may be proved by an examined copy. But the courts do not 
judicially notice them, and they do not import absolute verity, and are not conclu¬ 
sive of the facts stated in them, except in the case of a judgment rendered by the 
House of Lords, as a judicial tribunal, upon appeal (1 Phill. Ev., 406). In this coun¬ 
try the same rule prevails, and such documents are not noticed judicially by the 
courts, but must be proved.” 

In Tayrnouth v. Koehler (35 Mich., 22), the supreme court of Michigan said: 

“The township clerk is, by statute, made the clerk of the board of highway com¬ 
missioners, and required, under their direction, to record their proceedings. It has, 
however, frequently been held that, while parol evidence can not be admitted to 
contradict the reeord, yet it might be introduced to show the facts omitted to be 
stated; that the rights of creditors, or third persons, can not be prejudiced by the 
neglect of the clerk to perform his duty in this respect.” 

In Ohio the clerk of the county commissioners was required by law to record 
certain official proceedings. In King v. Kenney (4 Ohio, 79), the supreme court of 
Ohio said: 

“The omission was in the clerk of the commissioners. It would seem unreasona¬ 
ble that such ministerial nonfeasance should render the whole proceeding nugatory. 
To authorize this construction, for such omission, would require precedents and au¬ 
thorities. But in fact they are the other way.” 

In the case of Bigelow v. Amboy (1 Dutcher, 297), the court said: 

“Nor can the right of the creditor to recover depend upon the regularity with 
which the minutes of the city council are kept, nor whether they are kept at all. It 
is expressly proved by the city clerk that a resolution, substantially the same as 
that shown to the clerk of the plaintiffs, was passed by the council. Whether the 
resolution furnished to the mayor was copied from the minutes, or furnished to him 
before the minutes were recorded, or whether they were recorded at all, is a matter 
which can not prejudice the claim of the creditor.” 

In the case of Marbury v. Madison (1 Cranch, 137), the court said: 

“ When all the requirements have been performed which authorize a recording 
officer to reeord any instrument whatever, and the order for that purpose has been 


772 


SENATE ELECTION CASES. 


given, the instrument is, in law, considered as recorded, althongh the mere labor of 
inserting it in a book kept for that purpose may not have been performed.” 

THE CONTESTANT CONCEDES THIS POINT. 

But the contestant, Mr. Clagett, has abandoned this contention and now makes no 
point on this omission in the record in his supplemental brief filed in this case. 
Mr. Clagett also in this paper abandons the point which was really the only one 
originally urged against the election of Mr. Dubois at the time of his election, namely, 
that he, Mr. Dubois, was not elected because his alleged election was had before the 
two Senators elected to existing vacancies had drawn for terms. We quote from 
Mr. Clagett’s brief the following on these two points: 

“ (1) I make no point on the omission of the senate journal to say that Mr. Athey 
was elected secretary pro tempore on Monday, December 8. I had personal knowledge 
that he was so elected, and, although the journal does not show the fact, in my brief 
(p. 22) I so state. Affidavits to prove an expressly admitted fact are, to say the 
least, unnecessary. 

“ (2) Neither do I urge that Mr. Dubois was not elected because his alleged election 
was had before the two Senators elected to fill existing vacancies had drawn for 
terms. I was for a short period inclined to this opinion, but on full consideration 
abandoned it, and it is not mentioned in my brief. Had the legislature waited until 
after the two Senators had drawn for terms, it would have avoided the undignified 
and indecent haste which characterized the election in December. It would also 
have been spared the political perfidy involved in the open repudiation of the 
instructions given to the members in the platforms of both political parties to so act 
as to assure as near as possible equal representation in the Senate to the two great 
sections of the State. Although undignified and indecent, the course taken was not 
for this reason illegal.” 

While your committee would be unwilling to hold that a formal election is indis¬ 
pensable to an organization where it is clearly shown that a certain person had acted 
m the capacity of secretary pro tempore with the consent of the senate and without 
objection from any source, and who as such had certified to the record of the pro¬ 
ceedings, still in the case under consideration your committee are fully satisfied from 
the evidence presented not only that Mr. Gunn moved that Mr. Athey be elected sec¬ 
retary pro tempore of the senate, but that such motion was put by the presiding 
officer and carried, and, further, that Mr. Athey was on that date duly elected as 
such and so declared to be, and in pursuance of such election then and there, Mon¬ 
day, December 8,1890, entered upon the duties of his office. 

WAS THE LEGISLATURE OF THE STATE OF IDAHO IN VIEW OF THE FOREGOING FACTS, 

ORGANIZED ON MONDAY, DECEMBER 8, A. D. 1890, WITHIN THE MEANING OF THE 

TERM “ ORGANIZATION,” AS EMPLOYED IN SECTION 14 OF THE REVISED STATUTES? 

It is virtually conceded by the contestant and admitted by all that if the legisla¬ 
ture of the State of Idaho were organized on Monday, December 8, A. D. 1890, within 
the meaning of the term “ organization ” as used in the fourteenth section of the 
Revised Statutes of the United States relating to the time and manner of electing 
United States Senators, then Mr. Dubois was duly elected Senator for the State of 
Idaho for the term for which he claims to have been elected. 

The contention on the part of Mr. Clagett, however, is, in so far as this question 
is concerned, that there was no such organization of the legislature as is contem¬ 
plated by the statute until Tuesday, December 9, A. D. 1890. It is conceded by the 
contestant, or, if not, the fact is clearly shown by the record, that there was at least 
a complete temporary organization of the legislature of the State of Idaho on Monday, 
December 8, 1890. The question therefore arises, What is necessary to be done to 
constitute an organization of a legislature within the meaning of the term organiza¬ 
tion as used in the statutes? Inasmuch as Congress has provided that the election 
shall be held, or at least the first steps preliminary to an election shall be taken, on 
the second Tuesday after the meeting and organization of the legislature, without 
indicating in the remotest manner what shall be the character of such organization— 
whether it is to be a permanent organization with all the officers of "every grade 
elected and installed which the legislature may determine necessary for its conven¬ 
ience in the transaction of business, as contradistinguished from a temporary organi¬ 
zation, such as will enable the respective bodies to exercise fully all legislative func¬ 
tions, enact laws, censure or expel a member, and the like—is it not competent for 
the legislature to elect on the second Tuesday after such temporary organization? 

In other words, does not such an organization as last described meet the require¬ 
ments of the Revised Statutes as to organization? Your committee are of the opinion 
that it does. If the term “organization” as used in the Revised Statutes must be 
construed to mean only such an organization as exists after every officer is elected 
that either house may see proper to elect, or may be necessary to elect, for the mere 


CLAGETT VS. DUBOIS. 


773 


convenience of the body, then it would seem to be quite unsafe to regard the legis¬ 
lature as organized within the meaning of the statute, so long as there existed the 
remotest possibility oi electing any additional officers of any grade or character 
during the progress of the session. In other words, if that is the character of organi¬ 
zation intended by Congress, then it would seem to be most difficult indeed to draw 
the line or define the exact date when the organization of the two houses is complete 
within the meaning of the law. 

\our committee are of the opinion that whenever each house has progressed so far 
in the election of such officers, respectively, as will enable it and the two houses 
together to transact business, exercise legislative functions, enact laws, and make 
and keep a record ol such business, that then there has been such an organization 
of the two houses as is contemplated by the statute. When that has been done, in 
so tar as the election of officers of the two houses is concerned which will enable 
them respectively to exercise the functions tor which they have been brought into 
existence, and which will enable them to make, keep, and certify a record of the 
same, then, it seems to your committee, although much less than this may, and by 
some members of your committee is, deemed to be sufficient, the requirement of the 
statute as to the organization necessary from which time shall date in the election of 
a United States Senator, is clearly and fully met. 

In other words, a legislature is, in the judgment of your committee, organized 
within the meaning of section 14 of the Revised Statutes relating to the time and 
manner of electing United States Senators when each house has a presiding officer, 
authorized to ascertain and declare its will, and a method of recording its action 
satisfactory to and recognized by itself, subject, of course, to any constitutional pro¬ 
vision, State or Federal, or existing statute on the subject. 

In defining the term “ organization,” as used in section 14 of the Revised Statutes, 
which with subsequent sections is a reenactment of the act of July 25, A. D. 1866, 
the purpose of Congress in enacting the same should not be lost sight of; and such 
construction should be given as will best effectuate such purpose. 

The intention of Congress, as is plainly evident from a consideration of the whole 
act, was to place it out of the power of a majority of either house to prevent a 
majority of the two houses acting together in joint assembly from electing a United 
States Senator, in a case where there had been such an organization of the legisla¬ 
ture as will enable it to exercise the ordinary functions of a legislative body, such 
as enacting laws and making record thereof. This being so, is not the conclusion 
irresistible that whatever is a sufficient organization to enable a legislature to do 
the latter should be sufficient to enable it to elect a United States Senator? 

Any other construction would place it in the power of each house to organize so 
as to enable the legislature to sit its entire session of forty, sixty, or one hundred 
days, as the case may be, enact laws, and perform every function of its being, save 
and except only that of electing a United States Senator, and then adjourn, and yet 
would place it in the power of a factious majority in either house, the dilatory and 
obstructive action of Avhich as a minority of a whole legislature in respect of pro¬ 
ceeding with the necessary preliminary steps toward the election of a United States 
Senator is the very thing above all others the legislation was aimed at, to absolutely 
prevent the election of a Senator by refusing to make th&t permanent organization 
which the contestant insists is necessary before the legislature can elect a Senator. 

Such a construction would, in the judgment of your committee, while there is noth¬ 
ing in the phraseology of the statute to warrant, much less compel it, and much to 
the contrary, would be absolutely and fatally destructive of the statute defining the 
time and manner of electing United States Senators, 

It must be conceded not only that it is one of the important duties of the legisla¬ 
ture of a State, but one among the most exalted, if indeed not the very highest duty 
incumbent on it, to choose Senators at the time and in the manner provided by law. 
It is a duty impressed by the National Constitution, and in its exercise or nonexer¬ 
cise is involved the very existence of that machinery absolutely essential to the full 
and perfect exercise of the functions of the National Government. 

Therefore the great purposes in the Congress in enacting the law of 1866 was to 
remove every obstruction that might by factious opposition be thrown in the way of 
an election of Senator and to facilitate the exercise on the part of the legislatures of 
the several States of this high constitutional duty, and to the end that States might 
not go unrepresented in the Senate of the United States. That such was the purpose 
is manifest from the character of speeches made in the Senate by such eminent Sena¬ 
tors as Lyman Trumbull, Reverdy Johnson, and others when the bill which finally 
became the act of July 25, 1866, regulating the election of United States Senators, 
was under consideration in the Senate. On July 11, 1866, when this bill was the 
pending measure in the Senate of the United States, Senator Trumbull, the member 
of the committee who reported the bill, said: 

“We think the public interest is not subserved by leaving a State unrepresented; 
the intention of the Constitution is that it should be represented, and it is for the 


774 


SENATE ELECTION CASES. 


public good that we should have a law that will produce uniformity iu these elections 
and secure representation.” 

While Senator Reverdy Johnson, also a member of the committee, said: 

“The Government of the United States can not go on without a representation in 
the Semite of the United States. The Constitution assumes that every State in the 
Union Avill elect Senators; and the Constitution, in its spirit, is obligatory upon 
every State to make such an election. The only way, as I think, to compel the State 
to perform that constitutional obligation is to stop the wheels of the government of 
the State until that higher duty is performed. It is infinitely a higher duty upon 
the part of the States and the members of the legislatures of the several States to 
elect Senators of the United States, the Government of the United States being impor¬ 
tant to all the States, than it is to go on with their ordinary legislation.” 

IT IS CONCEDED BY CONTESTANT’S COUNSEL THAT THE LEGISLATURE WAS SUFFI¬ 
CIENTLY ORGANIZED MONDAY, DECEMBER 8 , 1890, TO ENABLE IT TO ENACT LAWS 

THAT WOULD BE VALID. 

Counsel for contestant, Mr. Shell abarger, conceded on the hearing that the tempo¬ 
rary organization effected on Monday, December 8, was sufficient to enable the leg¬ 
islature to enact laws, and that such laws would have been valid; while the contest¬ 
ant, Mr. Clagett, virtually, if we do not misinterpret his language, concedes the 
same thing when, in the printed brief last filed with the committee (p. 5), he says: 

“Nor have I ever held that a State legislature is not organized within the meaning 
of section 14 until both houses have supplied themselves with all the officers and 
assistants which they may choose to provide for themselves during the session, nor 
even with all [the italics are Mr. Clagett’s] official force which the laws of the-State 
may provide where such provision is made by State law.” 

If the concession of Mr. Shellabarger be well founded, as your committee have no 
doubt, it is clear that, in the absence of the statute of 1866 or the provisions of the 
Revised Statutes, the legislature could at that moment—December 8, 1890—in its 
discretion, have proceeded to the election of a United States Senator, and such elec¬ 
tion would have been valid. 

It therefore follows, if the argument of the contestant be sound, that a legislature 
sufficiently organized for all purposes of legislation and also sufficiently organized 
for the election of a United States Senator, in the absence of this statute of 1866, is 
without power to make such election solely by the operation of the statute, which 
was intended not only to facilitate it, but to compel it. 

It appears clearly to your committee that one of two things must be true—either 
it must be held that whenever a sufficient number of officers of each house of a legis¬ 
lative assembly under the law as it stood as applicable to the State of Idaho when 
the first legislature of that State convened, are elected to enable each of such houses 
to exercise fully all legislative functions, or otherwise that no such organization as 
is contemplated by the statute relating to the time and manner of tiie election of 
United States Senators is consummated until all of the officers of every grade are 
elected by each of such houses which each house may in its judgment determine to 
elect. 

Your committee are of the opinion that the true line should be drawn at the date 
when each house has elected such officers and they have entered upon their duty as 
will enable the houses, respectively, to exercise their full functions as legislative 
bodies, and make, preserve, and certify a record thereof. In the case under consid¬ 
eration it is true the two houses did not notify each other, respectively, that the 
permanent organization was complete until Tuesday, December 9, but this*fact raises 
no implication whatever that a perfect temporary organization did not take place as 
a matter of fact the day before, and the fact that the notice of organization was not 
given until Tuesday can not alter the fact that the organization was had on Monday. 

The statute requires that the vote for Senator be taken on the second Tuesday 
after the meeting and organization of the legislature and not on the second Tuesday 
after the exchange of notices of the organization of the two houses; besides, in the 
case we are considering, the notices exchanged on Tuesday, December 9, related to 
the permanent organization of the two houses, and this fact is recited in the notices 
themselves, the notice from the senate reading: 

“I am instructed to inform your honorable body that the senate has permanently 
organized by the election of the following officers.” * * * 

While the notice from the house reads: 

“I am instructed to inform your honorable body that the house of representatives 
has permanently organized,” etc. 

And it is submitted that the very fact that the notices exchanged on Tuesday 
recited that the organization referred to was a permanent organization clearly implied, 
or if there was no such implication there was certainly nothing to negative the fact 
that a temporary organization had existed before such permanent organization had 

taken place. 


CLAGETT VS. DUBOIS. 


775 


PRECEDENTS. 

In the ease of the election of \V right and Howell to the Senate of the United States 
from the State ol Iowa in 1870, the senate of Iowa met on Monday, January 10, 1870. 
On that day a few temporary officers were chosen, but the senators were not sworn. 
On luesday, January 11, 1870, the senators were sworn and the permanent officers 
were,all elected; thereupon, as the journal of the senate of that day recites: 

u Senator 1 uttle moved that a committee of three be appointed to inform the house 
that the senate is now organized and ready to proceed to business, which was agreed 
to; and the president appointed as such committee, Senators Tuttle, Beardsley, and 
Fellows.” ’ 

Messrs. Wright and Howell were chosen United States Senators Tuesday, January 
18, 1870, one week and one day after the temporary organization. This was a case, 
therefore, in which the senate met on Monday, and notified the house of its organiza¬ 
tion on 1 uesday and a senator was elected on the next Tuesday thereafter, which is 
a precisely parallel case to that of the election of Mr. Dubois. 

Again, in 1872, the senate of Iowa met Monday, January 8. A few temporary offi¬ 
cers were chosen on that day, but the senators wore not sworn. On Tuesday, Janu¬ 
ary 9, the senators were sworn and all the permanent officers were chosen. The 
following proceedings, as shown by the journal, was then had: 

“ Senator McNutt moved that a committee of two be appointed to inform the house 
that the senate was organized and ready for business, which motion prevailed, and 
Senators McNutt and Boomer were appointed such committee.” 

The house of representatives met January 8, 1872; some temporary officers were 
chosen, but the representatives were not sworn. On Tuesday, January 9, the jour¬ 
nal shows the following proceeding was had: 

“ On motion of Mr. Irish, Messrs. Campbell and Hewitt were appointed a committee 
to wait upon the senate and notify them that the house was organized and ready to 
proceed to business.” 

William B. Allison was elected United States Senator Tuesday, January 16, 1872, 
and in joint convention was duly declared elected Wednesday, January 17, 1872, 
another case parallel with that of the election of Mr. Dubois. 

The same thing occurred in the Iowa legislature January 14, 1878. 

OATH NOT NECESSARY. 

But objection is made by the contestant that no oath of office was administered 
either to the secretary pro tempore of the senate or to the chief clerk of the house of 
representatives on Monday, December 8, 1890. But in the judgment of your com¬ 
mittee, no oath of office was then required, either by the Constitution of the United 
States, by the constitution of Idaho, or by any statute, Federal or State. It is pro¬ 
vided in the Federal Constitution that certain State officers shall be bound by oath 
or affirmation to support the Constitution. Article 6 of the Federal Constitution 
contains the following provision: 

“ The senators and representatives before mentioned, and the members of the several 
State legislatures, and all executive and judicial officers both of the United States and 
of the several States, shall be bound by oath or affirmation to support this Constitu¬ 
tion.” 

While this clause of the Constitution of the United States requires members of the 
State legislatures to be sworn to support the Constitution of the United States, it 
does not require them to be sworn to support the State constitution, nor is there in it 
any requirement whatever that any officers of either house of the State legislature shall 
be sworn at all. It is only u executive and judicial officers” who are required to take 
the oath, and the officers of a State senate and house of representatives are neither 
executive nor judicial officers, they are ministerial officers. There is therefore no 
power vested in Congress, express or implied, which authorizes that body to prescribe 
an oath of office for the officers of either house of a State legislature. The act of 
Congress of June 1, 1789, third section, provides as follows: 

“And the members of the several State legislatures and all executive and judicial 
officers of the several States, who shall be chosen or appointed after the said first day 
of August, shall, before they proceed to execute the duties of their respective offices, 
take the foregoing oath or affirmation.” 

This was simply making operative as to the members of the State legislatures and 
executive and judicial officers of the States, the provision of the Federal Constitution 
on that subject, and therefore was clearly valid; but Congress having no power under 
the Constitution to embrace within its scope officers of the respective houses of the 
State legislature as such, who are not executive or judicial officers, did not include in 
the legislation such officers of the respective houses in the class who should be bound 
by oath or affirmation to support the Constitution of the United States. Each house, 
therefore, of the legislature of Idaho having the power to make its own rules, pos- 


776 SENATE ELECTION CASES. 

8essed tlie exclusive power and right to determine whether its officers shall or shall 

not he sworn. , , ^ „ 

Your committee are therefore of the opinion that neither by the Constitution ot 
the United States nor the constitution of the State of Idaho, nor by any statute, was 
the secretary pro tempore of the senate or the chief clerk ot the house of representa¬ 
tives required to be sworn in order to make good the organization of these respect¬ 
ive bodies or of the legislature, within the meaning of the term “organization ” as 
used in the Revised Statutes. The lieutenant-governor presided in the senate; he 
had already been sworn into office. The speaker of the house of representatives 
was sworn in on Monday, December 8, 1890. 

The only tribunal to determine whether the secretary pro tempore of the senate 
should or should not be sworn was the senate itself, and until the senate was organ¬ 
ized it could not possibly pass upon the question, and the same is true of the house 
of representatives of the State of Idaho. If, after organization had been completed, 
either or both of the houses had determined, by rule or otherwise, that the respective 
officers of their houses should be sworn, this fact could not possibly vitiate an organi¬ 
zation. It is a fact, therefore, as your committee find, that all the offices of each 
house created in accordance with the State constitution were duly filled on Monday, 
December 8, 1890, and these, moreover, were all the offices that were necessary or in 
any manner required to enable the legislature and each house thereof to exercise its 
and their appropriate functions. 

Some other and additional officers, doubtless were necessary to enable this to be 
done with greater celerity, ease, and dignity; but these were not essential to the full 
exercise of every legislative function, nor were they necessary to an organization 
such as is contemplated by the statute. 

THE TERRITORIAL STATUTE NOT APPLICABLE, BESIDES IT IS MERELY DIRECTORY. 

It is suggested by the contestant, Mr. Clagett, that an old Territorial statute of 
the late Territory of Idaho requiring officers of the respective houses of the legisla¬ 
ture of the late Territory to be sworn is still in force and applicable to the officers 
of the respective houses of the legislature of the State of Idaho. It is a matter of 
very grave doubt, in the first place, whether the statute referred to can be held to 
be in force and applicable to the officers of the legislature of a State. Your commit¬ 
tee believe it can not be, for the reason that the offices of clerks of a Territorial leg¬ 
islative council and house are different offices from those of secretary pro tempore of 
a State senate and of chief clerk of a State house of representatives, and therefore 
the Territorial statute does not apply. 

Inasmuch as each house of the State legislature has the right to determine as to 
its own organization, as to the number and kind of organs it shall have to represent 
its action, record its decrees, and aid in the transaction of its business, and as it is 
conceded there is no constitutional requirement, either Federal or State, such a stat¬ 
ute, if applicable at all, must be regarded as merely directory; and your committee 
are clearly of the opinion that a failure of compliance with its provisions would in 
no manner affect the validity of an otherwise valid organization. 

THE LIEUTENANT-GOVERNOR, PRESIDENT OF THE SENATE, SPEAKER OF THE HOUSE, 

SECRETARY OF THE SENATE AND CHIEF CLERK OF THE HOUSE ALL CERTIFIED 

THAT TUESDAY, DECEMBER 16, WAS THE SECOND TUESDAY AFTER THE ORGANIZA¬ 
TION. 

That the leading officers, respectively, of the two houses of the Idaho legislature 
were of the opinion that the legislature of that State was duly organized on Mon¬ 
day, December 8th, A. D. 1890, is made elearly apparent by the certificate of such 
officers accompanying and constituting a part of the credentials, respectively, of 
Messrs. Shoup, McConnell, and Dubois. This certificate is dated Boise City, Idaho, 
December 19, 1890, and recites in terms that Tuesday, the 16th day of December, 
1890, was “the second Tuesday after the meeting and organization of the legisla¬ 
ture,” and on the day following, Wednesday, at noon, December 17,1890, both houses 
in joint assembly met and proceeded to vote for a United States Senator for the 
State of Idaho, and the same person not receiving a majorityof the votes cast, said 
joint assembly adjourned and reconvened on Thursday, the 18th day of December, 
A. D. 1890, at noon and proceeded to ballot for a United States Senator, * * * 

and then and there Fred T. Dubois received a majority of all the votes of the joint 
assembly and was thereupon, by the presiding officer of the joint assembly, declared 
duly elected a Senator of the United States for the State of Idaho for the term to 
begin March 4, 1891. This certificate is signed as follows: 

“Norman B. Willey, president of the Senate; F. A. Fenn, speaker of the house of 
representatives; Charles H. Reed, chief clerk of the house of representatives; M. C. 
Athey, secretary of the senate.” 


CLAGETT VS. DUBOIS. 777 

THE CONTESTANT, CLAGETT, CONCEDES THE CASE TO MR. DUBOIS BY IIIS DEFINITION 

OF THE TERM “ ORGANIZATION.” 

But the contestant, Mr. Clagett, it seems to us, concedes the case to the sitting 
member when, in his supplementary brief, page 5, he says: 

“ (5) Nor have I ever held that a State legislature is not organized within the 
meaning of section 14 until both houses have supplied themselves with all the offi¬ 
cers and assistants which they may choose to provide for themselves during the 
session, nor even with all the official force which the laws of the State may provide 
where such provision is made by State law.” 

And then states his position to be as follows: 

“ I affirm that the word ‘ organized as used in this section 14, and as applied to 
a legislative body, is used to signify that the entire body had come into the condi¬ 
tion where it was authorized and enabled to proceed according to settled parliament¬ 
ary usage in enacting laws; and when it was endowed with the necessary official 
torce provided by the laws of the State for the transaction of Ihe legislative bush 
ness.” 

While your committee do not deem it necessary to concede and do not concede 
that the foregoing definition is in all its essentials a proper one of the term “organ¬ 
ization,” as used in the statutes they submit that what was done by the two houses 
ot the legislature of the State of Idaho, on Monday, December 8, A. D. 1890, brings 
the case within this definition. Each house had a presiding officer; each house had 
a recording officer ; each house, in other words, was so organized as to authorize 
and enable the legislature to proceed according to parliamentary usage, and as such 
to perform the functions for which it was brought into existence. 

Either house as then organized, and the two houses as then organized, had full 
power to legislate—to enact laws. Either house could have expelled a member, or 
performed any other function rightfully attaching to a legislative body v 

“What is organization [says Coleridge] but the connection of parts in and for a 
whole, so that each part is at once end and means * * * to furnish with organs; 
to endow with the capacity for the functions of life.” 

If it be true, as claimed by the contestant, that a legislature is not organized 
within the meaning of the term organization as used in the Revised Statutes, where 
each house has a presiding officer and a recording officer de facto, if not dejure, and 
if it is further true as conceded by him, and as your committee agree that it is not 
necessary to an organization of a legislature within the meaning of that term as 
used in the Revised Statutes, that all the officers which the senate and house may 
deem proper to elect for convenience and the expedition of business, shall have been 
elected, then we repeat where is it, and when is it the line must be drawn between 
the two extremes, when the full requirement of the statute is met, and the organiza¬ 
tion is consummated within the meaning of the statute? 

PRECEDENTS IN ORGANIZATION OF THE NATIONAL HOUSE OF REPRESENTATIVES. 

The power of the house of representatives of the State of Idaho under the consti¬ 
tution of that State, and also the power of the senate of the State of Idaho under 
such constitution, save and except as to its prosiding officer, is identical with the 
power of the House of Representatives of the United States under the Federal Con¬ 
stitution. The provisions of the Federal Constitution, and the only provisions bear¬ 
ing upon the question as to when the Senate or House of Representatives of the 
United States is organized, are as follows: 

“The House of Representative shall be composed of members chosen every second 
year by the people of the several States. The House of Representatives shall choose 
their Speaker and other officers. The Senate of the United States shall be composed 
of two Senators from each State, chosen by the legislature thereof for six years. 
The Vice-President of the United States shall be President of the Senate, but 
shall have no vote unless they be equally divided. The Senate shall choose their 
other officers, and also a President pro tempore in the absence of the Vice-President, 
or when he shall exercise the office of President of the United States. Each House 
shall keep a journal of its proceedings. The Senators and Representatives before 
mentioned, and the members of the State legislatures, and all the executive and 
judicial officers, both of the United States and of the several States, shall be bound 
by oath or affirmation to support this Constitution.” 

As the constitution of the state of Idaho does not expressly create any office for 
either house, except the office of presiding officer of the senate, so the Federal Con¬ 
stitution does not expressly create any office for either House of Congress, except 
the office of President of the Senate. It does not indicate what officers the respec¬ 
tive Houses shall choose, save and excepting that the House of Representatives shall 
choose “their Speaker and other officers.” 

It is nowhere prescribed in the Constitution of the United States, except in the 


778 


SENATE ELECTION CASES. 


case of tlie presiding officer of the Senate, what officers shall be chosen by each 
House,except that the House shall have a Speaker; neither is there any limitation 
of the power of each House, respectively, to elect just such officers, and as many of 
them as each House may see fit, save and except in the case of the presiding officer 
of the Senate, which is created by the Constitution, and the Speaker of the House, 
whom the Constitution requires shall be elected by the House. 

The only provisions of the constitution of Idaho bearing upon the question when 
the senate or house of representatives of that State is organized are the following: 

“ The legislative power of the State shall be vested in a senate and house of rep¬ 
resentatives (Art. 3, Sec. 1). Each house when assembled shall choose its own offi¬ 
cers (Art. 3, Sec. 9). The lieutenant-governor shall be president of the senate (Art. 
4, Sec. 13). Each house shall keep a journal of its proceedings (Art. 3, Sec. 13). All 
bills and joint resolutions passed shall be signed by the presiding officers of the 
respective houses (Art. 3, Sec. 21). The members of the legislature shall, before 
they enter upon the duties of their respective offices, take or subscribe the following 
oath or affirmation : “ I do solemnly swear (or affirm, as the case may be) that I will 
support the Constitution of the United States and the constitution of the State of 
Idaho, and that I will faithfully discharge the duties of senator (or representative, 
as the case may be) according to the best of my ability (Art. 3. Sec. 25). In case of 
the absence or disqualification of the lieutenant-governor, from any cause which 
applies to the governor, or when he shall hold the office of governor, then the presi¬ 
dent pro of the senate shall perform the duties of the lieutenant-governor 

until the vacancy is filled or the disability removed (Art. 4, Sec. 13).” 

Thus it will be seen that the provisions of the constitution of Idaho, in so far as 
they relate to the officers of the two houses of the legislature, are identical with 
those of the Federal Constitution relating to the officers of the Senate and House of 
Representatives of the United States. In each case the presiding officer of the sen¬ 
ate is designated by the constitution. In the case of the constitution of Idaho the 
lieutenant-governor shall be the president of the senate, while under the Federal 
Constitution the Vice-President of the United States shall be President of the Senate. 

Under the State constitution, “each house, when assembled, shall choose its own 
officers;” while under the Federal Constitution it is prescribed that “the House of 
Representatives shall choose their Speaker and other officers.” In the case of the two 
Houses of Congress, therefore, the only officers prescribed or designated are (1) the 
President of the Senate, and (2) in the case of the House, a Speaker; while under 
the constitution of the State of Idaho, the presiding officer of the senate is the only 
officer named in the constitution. As to all other officers in both cases, namely, 
in the House of Congress and in the two houses of the legislature of the State of 
Idaho, the question as to the number and character of officers to be selected by the 
respective houses is left entirely to the discretion of the houses themselves, except 
it maybe very properly said, there is an implied power that each house shall elect 
a chief clerk or other similar officer, whose duty it shall be to keep a record of the' 
proceedings of the house. 

In this view of the case it becomes interesting to inquire what officers the Senate 
and House of Representatives of the United States have decided to be essential to 
the organization of those bodies. It appears from the record of the fifty-one Houses 
of Representatives which have assembled since the organization of the Government 
eleven declared themselves organized and ready for the transaction of legislative 
business before the election of any officer other than Speaker, while twenty others 
were ready for the transaction of business and so declared themselves before the 
election of any officers except Speaker and Clerk. One House declared itself organ¬ 
ized before any officers had been elected except Speaker, Clerk, and Sergeant-at- 
Arms. 

Only nineteen Houses of Representatives out of fifty-one have elected all their 
officers before announcing themselves organized and ready to proceed to business. 
The Senate has at different times for a period aggregating thirty-two days trans¬ 
acted its ordinary business with the office of Secretary vacant. On not less, there¬ 
fore, than eleven different occasions has the House of Representatives of the United 
States decided, and in this decision the Senate and the President have acquiesced, 
that it is an organized House when a quorum of the Representatives have assembled, 
taken the oath of office, and chosen a presiding officer. 

The case under consideration, it will be conceded, is infinitely stronger. Inas¬ 
much as in the senate of the State there was a presiding officer de jure, duly installed 
and exercising his functions, and also a secretary, pro tempore, while in the house 
there were not only duly elected a speaker and a chief clerk, each of whom entered 
on the duties of his respective office on that date, but all the other officers of the 
house that ever were elected during the whole session, save and except a chaplain, 
were elected on December 8. The House of Representatives has decided in at least 
thirty-three cases that it is an organized House when a quorum of the Representa¬ 
tives have assembled, taken the oath of office, and chosen presiding and reporting 


CLAGETT VS. DUBOIS. 


779 


officers. Each and every one of these decisions must be held to be an authority in 
opposition to the contention that the election of all the officers of each branch of 
a legislature is essential to the organization of such legislature within the meaning 
of section 14 of the Revised Statutes. 

Your committee, however, do not by any means base their decision in this case 
solely or at all on the House precedents, but rather upon the construction your com¬ 
mittee place upon the provisions of the statute as an original proposition now before 
the Senate for the iirst time for its decision. 

THE IDEA THAT THE LEGISLATURE WAS NOT ORGANIZED ON MONDAY, DECEMBER 8, 

A. D., 1890, AN AFTERTHOUGHT. 

So far as appears from the journals of either senate, house, or joint assembly no 
protest based on the ground that the legislature was not organized on Monday, 
December, 8, 1890, or that the organization did not occur till Tuesday, December 9, 
was ever made by anyone, nor was that question ever suggested by anyone opposed 
to the election of Mr. Dubois, or anyone else, until long after December 18, 1890, 
the date when he claims to have been elected. Not until February 6, A. D. 1891, 
was the question ever mooted, so far as appears from any record in the journal of 
either house of the legislature of the State of Idaho, that the organization of the 
legislature had not taken place until Tuesday, December 9, 1890. 

Prior to that date, however, on .January 10, 1891, a protest against the election of 
Mr. Fred. T. Dubois was presented to the Senate of the United States and on that 
date referred to the Committee on Privileges and Elections. This protest was 
signed by 23 members of the legislature of the State of Idaho. It contains no date, 
nor is there any evidence in the record tending to show the date when this protest 
was signed. It is fair to presume, therefore, that the same was signed at or about 
the time or shortly before the time when the same was presented to the Senate, 

This protest contains the first intimation, so far as appears from any evidence sub¬ 
mitted to your committee, except as hereinafter stated, that the date of the organ¬ 
ization of the legislature was questioned, or in which it was claimed that the 
organization did not take place on Monday, December 8, A. D. 1890, as had up to 
that date been assumed by the whole legislature, and which fact had been certified to 
twice, on two different dates, by the governor and secretary of state, and also once 
by the speaker and chief clerk of the house and the secretary pro tempore of the sen 
aite. And even this protest virtually concedes the organization of the house of rep 
resentatives on Monday, December 8, but insists that the senate did not organize on 
that date and claims it was not organized until Tuesday, the 9th day of December, 
1890. * 

Nor was this protest, it will be observed, the action of the legislature or of either 
house thereof, nor was it ever made a part of the record proceedings of the legisla¬ 
ture or either house thereof; and not until February 6, A. D. 1891, just fifty days 
after the date on which Mr. Dubois claims to have been elected, was the question 
ever raised by either house to the effect that the legislature of the State had not been 
organized on Monday, December 8, and then the question was only incidentally raised 
in a preamble and resolution adopted by the senate on that date—the recital in the 
preamble being to the effect that the legislature was organized on Tuesday, Decem¬ 
ber 9, 1890. 

Various other matters were recited in the preamble to the resolution, such as that 
the State constitution and the admission act required that two United States Sena¬ 
tors should be elected within ten days after the organization of the legislature; 
that such legislature had, on the 16th day of December, 1890, voted for a United 
States Senator in the two houses, acting separately, and thereafter, as provided by 
law, met in joint assembly on December 18, and within ten days after its organiza¬ 
tion elected, in the manner provided by law, the honorables George L. Shoup and 
William J. McConnell United States Senators, and thereupon immediately proceeded 
to vote for Hon. Fred T. Dubois for the term beginning March 4, 1891, in advance of 
the drawing for terms by the two Senators elected in advance of the time fixed by law, and 
without first voting in the two houses, acting separately, and against the protest of 
the members of the joint assembly, the preamble finally concluding as follows: 
“After full consideration of the facts, it is the opinion of the legislature that if the 
alleged election of said Hon. Fred T. Dubois is not void, there is at least grave doubt 
as to its validity,” after which followed the resolution, which is as follows: 

'* Resolved by the senate (the house of representatives concurring ): That at the hour of 
12 o'clock meridian of the first legislative day after the passage of this resolution 
the legislature will proceed to elect a United States Senator to succeed Hon. Wil¬ 
liam J. McConnell, for the term beginning March 4, 1891, and that such election 
shall be conducted in all respects in the manner provided in section 15 of the Revised 
Statutes of the United States.” 


780 


SENATE ELECTION CASES. 


Then followed five days subsequently, February 11, 1891, the voting for and alleged 
election of the contestant, Mr. Clagett. 

It is very plain to your committee that even at this time no reliance whatever was 
placed upon the question now urged as the one on which main reliance is placed, 
namely: That the legislature was not organized on Monday, December 8, as claimed 
by Mr. Dubois. 

The real ground of this protest evidently was that the legislature had no right to 
elect a third Senator until after the drawing had taken place between Senators 
Shoup and McConnell. 

It is true John S. Cray, a member of the senate of the State legislature of Idaho, 
in an ex parte affidavit made on the 19th day of February, A. D. 1891, and attached 
to the memorial of Mr. William H. Clagett, the contestant, states that he, on De¬ 
cember 18, 1890, when the joint assembly met, opposed the resolution offered by 
Senator Gunn to go into the election of the third Senator at that time, and urged 
several objections, among others, as he states, that the legislature was not organized 
until December 9, 1890; but the record of the proceedings of the joint assembly of 
that date, filed with your committee by Mr. Clagett, the contestant, fails to disclose 
any opposition, either on the part of Senator Gray or any other member upon such 
grounds. The following is the full record of the proceedings of this joint assembly, 
as appears from the journal filed with your committee: 

“ JOINT SESSION. 

“The joint session of the two houses was called to order by the lieutenant-gov¬ 
ernor, the president of the senate. 

“ The roll of the senate then called by the secretary of the senate. 

“All present. 

“The chief clerk then called the roll of the house. 

“ All present. 

“The chief clerk of the house read from the journal of the house of yesterday that 
portion relating to the joint assembly; which was approved. 

“ Senator Gunn offered the following resolution: 

“ ( Resolved, by the joint assembly of the senate and house of representatives of the legis¬ 
lature of the State of Idaho, That we proceed to elect two United States Senators to 
fill vacancies, and that after such elections we immediately proceed to elect one 
United States Senator to fill vacancy occurring March the 4th, 1891.’ ” 

“ Senator Gray then offered the following amendment: 

“I move to amend the resolution to read as follows: “ That we do now proceed to 
elect one Senator from North Idaho, and then proceed to elect one Senator from 
South Idaho, to fill vacancies now existing.’ ” 

“Senator Gunn raised the point of order that the amendment was not in order; 
which was sustained by the chair. 

“Senator Gray then withdrew his amendment, and offered the following as a sub¬ 
stitute for the original resolution: 

“ I move that the resolution read as follows: ‘ That we proceed to elect two Sena¬ 
tors to fill the vacancies now existing.’” 

“ The question being on the adoption of the substitute, the ayes and nays were 
called for and taken, with the following result: 

“senate roll call. 


“Ayes—Branstetter, DeLamar, Dempsey, Finch, Gray, Jewell. Lan^rische White* 
total, 8. * ’ ’ 

“ Nays—Brigham, Gunn, McPherson, Rogers, Shoup, Smith, Underwood. Weiler 
Wells, Wing; total, 10. 

“house roll call. 


“Ayes—Armstrong, Ballentine, Cameron, Casey, Dryden, Emory, Hanlev, Haw¬ 
kins, Irwin, Jones, Martin, Porter, Scofield, Smith, W. H., Smith, B. H ' Snerrv 
Steunenberg; total, 17. 

“Nays—Briggs, Caldwell, Ethel, Fenn, Frederickson, Goodnight, Green, Hixon 
Kmg, Lyons, Merrell Mills, Monroe, Price, Pyeatt, Ramsey, Scattaboe, Suydam! 
and Swanger; total, 19. J ’ 

“Total ayes in all, 25. 

“ Total nays in all, 29. 

“And so the substitute was rejected. 

“The question recurring on the original resolution, the ayes and nays were taken 

with the following result: 


CLAGETT VS. DUBOIS. 


781 


“roll call of senate. 

“Ayes—Brigham, Gunn, McPherson, Rogers, Shoup, Smith, Underwood, Weiler, 
Wells, Wing; total, 10. 

“Nays—Branstetter, De Lamar, Dempsey, Finch, Gray, Jewell, Langrische, White; 
total, 8. 

“roll call of house. 

“Ayes—Briggs, Caldwell, Ethel, Fenn, Frederickson, Goodnight, Green, Hixon, 
King, Lyons, Merrell, Mills, Monroe, Price, Pyeatt, Ramsey, Scattaboe, Suydam, 
Swanger; total, 19. 

“Nays—Armstrong, Ballentine, Cameron, Casey, Dry den, Emery, Hanley, Haw¬ 
kins, Irwin, Jones, Martin, Porter, Scofield, Smith, W. H., Smith, B. H.. Sperry. 
Stennenherg; total, 17. 

“Total ayes in all, 29. 

“Total nays in all, 25. 

“And so the resolution was adopted. 

“ The president directed that the joint assembly proceed to the election of a United 
States Senator to fill an existing vacancy by a viva vocev ote of each member present. 

“The rolls of the respective houses were then called, with the following result: 

“Total number of votes, 54; of which George L. Shoup received 31, William H. 
Clagett received 12, Alexander E. Mayhew received 10, W. J. McConnell received 1. 

“Those voting for George L. Shoup were: Messrs. Brigham, Gunn, McPherson, 
Rogers, Shoup, Smith, Underwood, Weiler, and Wells, of the senators; and Messrs. 
Briggs, Caldwell, Emery, Ethel, Fenn, Frederickson, Goodnight, Green, Hixon, 
King, Lvou, Martin, Merrell, Mills, Monroe, Price, Pyeatt, Ramsey, Scattaboe, 
Smith, W. A., Suydam, and Swanger, of the house—31. 

“Those voting for William H. Clagett were: Messrs. De Lamar, Finch, Gray, and 
Langrische, of the senate; and Messrs. Armstrong, Cameron, Casey, Hanley, Haw¬ 
kins, Porter, Scofield, and Sperry, of the house—12. 

“Those voting for Alexander E. Mayhew were: Messrs. Branstetter, Dempsay, 
Jewell, and White, of the senate; and Messrs. Ballentine, Dryden, Irwin, Jones, 
Smith, B. H., and Steunenberg, of the house—10. 

“Mr. Wing of the senate voting for William H. McConnell. 

“George L. Shoup having received a majority of all the votes cast, was declared 
duly elected United States Senator. 

“Mr. Emery moved to adjourn, upon which the yeas and nays were called and 
taken, with the following result: 

“roll call of senate. 

“Ayes—Branstetter, De Lamar, Dempsay, Finch, Gray, Jewell, Langrische,White; 
total, 8. 

“Nays—Brigham, Guun, McPherson, Rogers, Shoup, Smith, Underwood, Weiler, 
Wells, Wing; total, 10. 

“roll call of house. 

“Ayes—Armstrong, Ballentine, Cameron, Casey, Dryden, Emery, Hanley, Hawkins, 
Jones, King, Porter, Scofield, Smith, W. H., Smith, B. H., and Steunenberg; total, 15. 

“Nays—Briggs, Caldwell, Ethel, Frederickson, Goodnight, Green, Hixon, Lyons, 
Martin, Merrell, Mills, Monroe, Price, Pyeatt, Ramsey, Scattaboe, Sperry, Suydam, 
Swanger, Mr. Speaker; total, 20. 

“Ayes in all, 23. 

“Nay8 in all, 30. 

“And so the motion to adjourn was lost. 

“The joint assembly then proceeded to the election of a United States Senator to 
fill the other existing vacancy. 


“second ballot. 

“The rolls of the respective houses were then called with the following results: 
“Total number of votes cast, 54; of which W. J. McConnell received 29, Wm. H. 
Clagett received 15, and Geo. Ainslie received 10. 

“Those voting for W. J. McConnell were: Messrs. Brigham, Gunn, McPherson, 
Rogers, Shoup, Smith, Underwood, Weiler, Wells, and Wing, of the senate; and 
Messrs. Briggs, Caldwell, Ethel, Fenn, Frederickson, Goodnight, Green, Hixon, 
Lyon, Martin, Merrell, Mills, Monroe, Price, Pyeatt, Ramsey, Scattaboe, Suydam, 
and Swanger, of the house—29. 


782 


SENATE ELECTION CASES. 


“Those voting for W. H. Clagett were: Messrs. De Lamar, Finch, Gray, Langrische, 
of the senate; and Messrs. Armstrong, Cameron, Casey, Emery, Hanley, Hawkins, 
King, Porter, Scofield, Smith, W. H., and Sperry, of the house—15. 

“Those voting for Mr. Ainslie were: Messrs. Branstetter, Derapsay, Jewell, and 
White, of the senate; and Messrs. Ballentine, Dryden, Irwin, Jones, Smith, B. H., 
and Steunenberg, of the house—10. 

“Mr. McConnell having received a majority of all the votes cast was declared 
duly elected United States Senator. 

“Senator Gray moved to adjourn, upon which the ayes and nays were called for 
and taken, with the following result: 

“roll call of senate. 

“Ayes—Branstetter, De Lamar, Dempsay, Finch, Gray, Jewell, Langrische, White, 
and Wing; total, 9. 

“Nays—Brigham, Gunn, McPherson, Rogers, Shoup, Smith, Underwood, Weiler, 
Wells; total, 9. 

“house roll call. 

“Ayes—Armstrong, Ballentine, Cameron, Casey, Dryden, Emery, Hanley, Hawkins, 
Irvine, Jones, Porter, Scofield, Smith, W. H., Smith, B. H., Sperry, Steunenberg; 
total, 16. 

“Nays—Briggs, Caldwell, Ethel, Fenn, Frederickson, Goodnight, Green, Hixon, 
King, Lyons, Martin, Merrell, Mills, Monroe, Price, Pyeatt, Ramsey, Scattaboe, Suy- 
dam, and Swanger; total, 20. 

“Total of all ayes, 25. 

“ Total of all nays, 29. 

“And so the motion to adjourn was lost. 

“ The joint assembly then proceeded to the election of a United States Senator, 
whose term should begin March 1, 1891. 

“By request of Senator Gray his objection to the election of a third United States 
Senator is entered on the journal. 


“third ballot. 

“The rolls of the respective houses were called with the following result: 

“Total number of votes cast. 54; of which Fred T. Dubois received 32, Win . H. 
Clagett received 12, and John Haley received 10. 

“Those voting for Mr. Dubois were: Messrs. Brigham, Gunn, McPherson, Rogers, 
Shoup, Smith, Underwood, Weiler, Wells, and Wing, of the senate; and Messrs. 
Briggs, Caldwell, Casey, Ethel, Fenn, Frederickson, Goodnight, Green, Hixon, King, 
Lyons, Martin, Merrell, Mills, Monroe, Price, Pyeatt, Ramsey, Scattaboe, Sperry, 
Suydam, and Swanger, of the house—32. 

“Those voting for VVm. H. Clagett were: Messrs. De Lamar, Finch, Gray, and 
Langrische, of the senate; and Messrs. Armstrong, Cameron, Emery, Hanley, 
Hawkins, Porter, Scofield, Smith, W. H., of the house—12. 

“Those voting for Mr. Haley were: Messrs. Branstetter, Dempsay, Jewell, and 
White, of the senate; and Messrs. Ballentine, Dryden, Irwin, Jones, Smith, B. H., 
and Steunenberg, of the house—10. 

“Mr. Dubois, having received a majority of all the votes cast, was declared duly 
elected United States Senator for the term commencing March 1, 1891. 

“On motion of Mr. Wells the joint assembly dissolved. 

“house in session. 


“Mr. Speaker in chair. 

“On motion of Mr. Green the house adjourned. 

“F. A. FENN, 

“ /Speaker. 

“Attest: 

“Chas. H. Reed, Chief Cleric.” 

It will be seen from this record that the only protest against the resolution of 
Senator Gunn, made by Senator Gray, was first, he moved to amend the resolution 
by providing that the joint convention should then proceed to elect one Senator 
from north Idaho, and then proceed to elect one Senator from south Idaho to fill 
vacancies then existing. This amendment was ruled out of order by the chair and 


CLAGETT VS. DUBOIS 


783 


was thereupon withdrawn by Senator Gray, who then offered as a substitute the 
following: 

u That we pioceed to elect two senators to fill vacancies now existing.” 

This subtitute w as rejected—25 ayes, 29 noes. Senator Gunn’s resolution was then 
adopted. This seems to be the only protest offered to the resolution of Senator 
Gunn by Senator Gray, and no other protest or objection seems to have been made 
by any other member of the joint assembly. 

THE GOVERNOR OF THE STATE OF IDAHO CERTIFIED TWICE UNDER HIS HAND AND THE 
GREAT SEAL OF STATE THAT MR. DUBOIS WAS DULY ELECTED SENATOR THURSDAY, 
DECEMBER 18, A. D. 1890, AND THAT THE PRECEDING TUESDAY WAS THE SECOND 
TUESDAY AFTER THE ORGANIZATION OF THE LEGISLATURE. 


But the governor of the State of Idaho, Hon. Norman B. Willey, although he on 
the 14th day of February, 1891, signed the credentials of the contestant certifying 
to his election as Senator from the State of Idaho for the full term commencing 
March 4, 1891, had previously to that, first on the 19th day of December, 1890, in 
connection with the speaker of the house, and the chief clerks, respectively, of each 
house certified that the election of Mr. Dubois for the same term had taken place 
on Thursday, the 18th day of December, A. D. 1890, and that the preceding Tuesday 
was the second Tuesday after the meeting and organization of the legislature , and also 
had on the 23d day of December, 1890, certified over his own signature as follows: 

“ That at a joint session of the senate and house of representatives of said State, 
duly convened and held at Boise City, Idaho, the capital of said State, on the 18tli 
day of December, 1890, a majority of the members of the senate and house of 
representatives being present and voting, Fred. T. Dubois received a majority of 
all the votes cast at said joint session for Senator for the State of Idaho for the full 
term, commencing March 4, A. D. 1891, and was duly elected and so declared elected as 
said Senator for said term by the presiding officers of said joint session as provided 
by law. 

“ Given under my hand and the seal of the State of Idaho the day and year first 
above written. 

NORMAN B. WILLEY, 

“ Governor. 


“By the governor: 

“A. J. PINKHAM, 

“Secretary of State.” 


THERE WAS A VOTE IN THE SEPARATE HOUSES ON THE SECOND TUESDAY AFTER THE 

ORGANIZATION OF THE LEGISLATURE. 


Some objection is made that a vote was not taken in the houses separately prior 
to the convening of the joint assembly. This is incorrect. The record filed with 
your committee shows that senate concurrent resolution No. 3 was adopted by both 
houses. This resolution was as follows, having been offered by Mr. Gunn in the 
Senate: 

“Resolved hy the senate (the house concurring), That the senate and house of repre¬ 
sentatives proceed to elect, as provided by law, United States Senators at the hour 
of 12 o’clock in., on Tuesday, the 16tli day of December, 1890;” 

Which was on that date, December 12, on motion of Mr. Gunn, referred to the com¬ 
mittee on judiciary, of which Senator Gray was chairman. On the following day, 
December*13, 1890, Senator Gray, from the committee on judiciary, submitted the 
following report: 

“Senate Chamber, December 13, 1890. 

“ Mr. President: The judiciary committee, to whom was referred senate concur¬ 
rent resolution No. 3, that the senate and house of representatives proceed to elect, 
as provided by law, United States Senators at the hour of 12 o’clock m.,on Tuesday, 
December 16, *1890, have had the same under consideration, and respectfully report 
the same back with the recommendation that it do pass. 

“GRAY, Chairman. 


The resolution was then, December 13, 1890, taken up, considered, and on motion 
of Senator Gunn adopted, and, so far as the record shows, without any opposi¬ 
tion. It was sent to the house on December 16, and at 11:30 o’clock a. m. the 
same came up for consideration. Mr. Stennenberg moved that the rules be suspended 
and the resolution read a third time and placed on its final passage. On this motion 
35 votes were cast in the affirmative, the votes of all the members constituting the 


784 


SENATE ELECTION CASES, 


house of representatives, save and except one, Representative Mills, who was noted 
absent. 

So the rules were suspended, the resolution was read a third time, and the ques¬ 
tion being, “ Shall the resolution pass?” the ayes aud noes were taken, with the 
following result: Ayes 35, being the votes of all the members present, and all the 
members constituting the house of representatives except 1; noes 0. 

The hour of 12 o’clock meridian then having arrived on December 16, 1890, the 
speaker announced as the next business in order -the balloting for United States 
Senators, and directed the clerk to call the roll. The following is the journal pro¬ 
ceedings of the house of that date: 

“The roll being called, 35 votes were cast, of which 

“ Wm. H. Clagett received 6. 

“ Fred T. Dubois received 13. 

“Edward A. Stevenson received 6. 

“ Wm. J. McConnell received 5. 

“ Geo. L. Shoup received 5. 

“ The members voting for Mr. Clagett were: Messrs. Armstrong, Cameron, Hanley, 
Porter, Scofield, and Sperry—6. 

“ Those voting for Mr. Dubois were: Messrs. Briggs, Caldwell, Ethel, Frederickson, 
Goodnight, Hixon, King, Lyon, Merrell, Monroe, Price, Ramsey, and Mr. Speaker—13. 

“Those voting for Mr. Stevenson were: Messrs. Ballentine, Dry den, Irwin, Jones, 
Smith, B. H., and Steunenberg—6. 

“Those voting for Mr. McConnell were: Messrs. Casey, Green, Hawkins, Martin, 
and Scattaboe—5; and 

“Those voting for Mr. Shoup were: Messrs. Emery, Porter, Pyeatt, Smith, W. H., 
and Swanger. 

“Mr. Mills being absent. 

“And so the speaker announced that the house of representatives has failed to 
give a majority of the whole number of votes cast to any person. 

“ On motion of Mr. Emery, the house took a recess until 2:30 o’clock p. m. 

“ On motion of Mr. Caldwell, the house adjourned. 

“ F. A. FENN, Speaker. 

“Attest: 

“ Chas. H. Reed, Chief Clerk. 

The record discloses the following proceedings of the separate vote in the Senate 
on December 16 at 12 o’clock meridian, the time fixed by the foregoing resolution: 

NINTH DA*. 


“Senate Chamber, 

“Boise, December 16, 1890. 

“The senate met at 11:30 o’clock a. m., pursuant to adjournment. 

“ Mr. President in the chair. 

“Prayer bv the chaplain. 

“ Roll called. 

“All present except Mr. De Lamar, who was excused. 

“Journal of yesterday was read, corrected and approved. 

****** 

“At 12 o’clock meridian the president announced the business before the senate to 
be the consideration of the subject contained in senate concurrent resolution No. 3, 
to wit, the election of United States Senators. 

“After the reading of that portion of the United States Revised Statutes relating 
thereto, the senate proceeded to vote for United States Senator. Upon calling the 
roll, the vote stood as follows: 

“Those who voted for Fred T. Dubois were Messrs. Rogers, Smith, Underwood, 
and Weiler—4. ' 

“Those who voted for George L. Shoup were Messrs. Gray, McPherson, and James 
M. Shoup—3. 

“Those who voted for W. J. McConnell were Messrs. Brigham, Gunn, Welis, and 
Wing—4. 

“Those who voted for Wm. H. Clagett were Messrs. Finch and Langrische—2. 

“Those who voted for Mr. Ed. A. Stevenson were Messrs. Branstetter, Dempsav 
Jewell, and White—4. * * ** 

“Whole number of votes cast, 17. Necessary to a choice, 9. 

“The president announced that not a majority of all the senators elected having 
voted for United States Senator, therefore there has been no election. 

“ Mr. Gunn moved that the senate do now proceed to elect a second United State* 
Senator to fill the existing vacancy. 


CLAGETT VS. DUBOIS. 


785 


“Mr. Wetter moved that the senate take a recess until 2 o'clock p. m.; 
“Which motion prevailed. 

“Senate resumed its session at 2 o’clock p. m., 

“ Mr. President in the chair. 

“Roll called. 

“All present except Messrs. De Lamar and Wetter. 

******* 


“message from the house. 


“ Office of Chief Clerk of House of Representatives, 

“ Boise City , December 16, 1890. 

“Mr. President: I am instructed to inform your honorable body that the house of 
representatives has had under consideration and has passed senate concurrent reso¬ 
lution No. 3, requiring the senate and house of representatives to proceed to elect 
United States Senators as provided by law, which are herewith transmitted. 

“CHARLES H. REED, 

“ Chief Clerk. 


“At 4:30 o’clock p. m., on motion of Mr. Gunn, the senate adjourned until 10 o’clock 
a. m. to-morrow. 


“N. B. WILLEY, 
President of the Senate. 

tt o st * 

“M. C. ATHEY, Secretary.” 


It will be observed, therefore, that a separate vote for the United States Senators 
was taken in each house of the legislative of Idaho separately on Tuesday, Decem¬ 
ber 16, 1890, at 12 o’clock meridian; Mr. Clagett, Mr. Dubois, Mr. Shoup, and Mr. 
McConnell each receiving votes in each house, the voting being in pursuance of sen¬ 
ate resolution No. 3, aforesaid, which provided not for the election of a Senator or 
Senators for any given or specified term, but which provided simply for the election 
of United States Senators as provided by law. 

No person having received a majority of all the votes cast in both houses, or in 
fact in either house, the two houses, as provided in the Revised Statutes, met in 
joint assembly in the hall of the house of representatives on December 17, 1890, at 
12 o’clock meridian, and were called to order by the lieutenant-governor, acting in 
his official capacity as the president of the senate. The roll of the senate was then 
called by the secretary of the senate, all the senators being present. The chief 
clerk then called the roll of the house, all the members being present except Mr. 
Mills, who had been excused. The president then read from the Revised Statutes of 
the United States that portion relating to the election of United States Senators. 
The further proceedings of the joint assembly, as appears from the journal, were as 
follows: 

“The secretary of the senate read from the journal that portion of the proceed¬ 
ings of yesterday relating to the ballot taken for United States Senators, and the 
chief clerk of the house read from the journal of the house yesterday that portion 
relating to the ballot for United States Senators. 

“ It appearing therefrom that the same person has not received a majority of all 
the votes in each house, the president directed that the joint assembly proceed to 
choose, by a viva voice vote of each member present, a Senator. 

“ The rolls of the respective houses were then called, with the following result: 

“ Total number of votes cast were 53, of which William J. McConnell received 9, 
William H. Clagett received 8, Geo. L. Shoup received 9, Fred T. Dubois received 
17, Alexander E. Mayhew received 3, Edward A. Stevenson received 7. 

“ Those voting for Mr. McConnell were Messrs. Brigham, De Lamar, Gunn, Wells, 
and Wing, of the senate; and Messrs. Casey, Green, Martin, and Scattaboe, of 
the house—9. 

“Those voting for Mr. Clagett were: Messrs. Finch andLangrische,of the senate; 
and Messrs. Armstrong, Cameron, Hanley, Porter, Scofield, and Sperry, of the 
house—8. 

“Those voting for Mr. Shoup were: Messrs. Gray, McPherson, and Shoup, of the 
senate; and Messrs. Emery, Hawkins, Pyeatt, W. H. Smith, Suydam, Swanger, of 
the house—9. 

“Those voting for Mr. Dubois were: Messrs. Rogers, Smith, Underwood, and 
Wetter, of the senate; and Messrs. Briggs, Caldwell, Ethel, Frederickson, Good¬ 
night, Hixson, King, Lyon, Merrell, Monroe, Price, Ramsey, and Mr. Speaker—17. 

“Those voting for Mr. Stevenson were: Messrs. Branstetter, Dempsey, Jewell, 
and White, of the senate; and Messrs. Irwin, Jones, and B. H. Smith, of the 
house—7. 


S. Doc. 11-50 



786 


SENATE ELECTION CASES. 


“And those voting for Mr. Mayhew were: Messrs. Ballentine, Dryden, and Stem 
nenberg, of the house—3. 

“Absent: Mr. Mills, of the house. 

“ No person having received a majority of all the votes cast, Mr. Wells moved 
that a second vote be taken; which motion prevailed. 

“second ballot. 

“The rolls of the respective houses were then called, with the following result: 

“ Total number of votes cast, 53; of which William J. McConnell received 5, Fred 
T. Dubois received 17, William H. Clagett received 8, Geo. L. Shoup received 13, 
Alexander E. Mayhew received 5, and Edward A. Stevenson received 5. 

“ Those who voted for Mr. McConnell were: Mr. Brigham, of the senate, and 
Messrs. Casey, Green, Martin, and Scattaboe, of the house—5. 

“Those who voted for Mr. Dubois were: Messrs. Rogers, Smith, Underwood, and 
Weiler, of the senate; and Messrs. Briggs, Caldwell, Ethel, Frederickson, Good¬ 
night, Hixson, King, Lyon, Merrell, Monroe, Price, Ramsey, and Mr. Speaker, of 
the house—17. 

“ Those voting for Mr. Clagett were: Messrs. Finch and Langrische, of the senate; 
and Messrs. Armstrong, Cameron, Hanley, Porter, Scofield, and Sperry, of the 
house—8. 

“ Those voting for Mr. Shoup were: Messrs. De Lamar, Gray, Gunn, McPherson, 
Shoup, Wells, and Wing, of the senate; and Messrs. Emery, Hawkins, Pyeatt, W. H. 
Smith, Suydam, Swanger, of the house—13. 

“Those voting for Mr. Mayhew were: Messrs. Ballentine, Dryden, Irwin, Jones, 
and Steunenberg, of the house—5. 

“Those voting for Mr. Stevenson were: Messrs. Branstetter, Dempsay, Jewell, 
and White of the senate; and Mr. B. H. Smith, of the house—5. 

“No person having received a majority of all the votes cast, the president declared 
there was no election. 

“On motion of Mr. Gray, of the senate, the joint assembly adjourned.” 

# # * # # # « 

Two ballots having been taken without an election, the joint assembly of the two 
houses adjourned, and met again in joint assembly in the hall of the house of rep¬ 
resentatives the next day, Thursday, December 18, 1890, at 12 o'clock meridian, and 
proceeded to elect, and did elect, three United States Senators—Messrs. Shoup, 
McConnell, and Dubois. The proceedings of such joint convention are set out 
supra. 

But conceding, for the argument, that no action was taken on the second Tuesday 
after the organization of the Idaho legislature by a vote separately in the two 
houses in regard to the third Senator who was to be elected, then such omission 
could in nowise affect the validity of the election of Mr. Dubois in the joint assem¬ 
bly if in all other respects there was a compliance with the provisions of the statute. 
This is made clear by the express words of the statute of July 25, 1866, now section 
15 of the Revised Statutes, relating to the duty of the joint assembly, which reads 
as follows: 

“But if the same person has not received a majority of the votes in each house or 
if either house has failed to take proceedings as required by this section, the joint 
assembly shall then proceed to choose, * * * etc.” 

This precise question was presented and decided in the case of Hart v. Gilbert in 
the Forty-first Congress. Senator Trumbull submitted the report of the committee, 
which was agreed to. The following is an abstract from this report: 

“ The only ground for the other objection arises from the fact that the legislature 
failed to take action on the ‘ second Tuesday after its organization,' in regard to the 
third Senator who was to be elected; but it took action on the subject of electing 
Senators, and actually voted, though unsuccessfully, on that day for persons to fill 
the two existing vacancies. 

“ The object of the act of Congress was to insure the election of Senators by the 
proper legislature, and to fix a time when proceedings for that purpose should be 
commenced and continued till the elections were effected. 

“ The legislature, by which the sitting members were elected, was the one chosen 
next preceding the term which would commence on the 4th of March, 1869, and was, 
therefore, the proper legislature to elect. 1 The second Tuesday after the meeting 
and organization of the legislature,' was the time prescribed by the act of Congress 
for initiating the election of Senators, and that was the time when the legislature 
proceeded to that business. There being three Senators to elect, it took action on 
that day only in reference to two of them. Did its failure to take action on that day, 
and the two subsequent days (which were occupied in electing the first two Senators), 


CLAGETT VS. DUBOIS. 787 

in reference to the third Senator, render his election, in all other respects regular, 
invalid? The committee think not. 

“The language of the law is: ‘In case no person shall receive such majority on 
the first day, the joint assembly shall meet at 12 o’clock meridian, of each succeed¬ 
ing day during the session of the legislature, and take at least one vote till a Senator 
shall be elected.’ No formal adjournment from day to day, by vote of the joint 
assembly was necessary, but it was the duty of the members of each house to meet, 
in joint assembly, at noon of each day and vote at least once till all the Senators 
whom the legislature had the right to elect were chosen This is exactly what the 
legislature did. 

“ In no view which the committee can take would the petitioner be entitled to a 
seat in the Senate; for if the election of the sitting Senator was irregular, that of the 
petitioner, by the same legislature at a subsequent session, was equally so.” 

Again, the same question is substantially decided by the Senate in the case of the 
election of J. W. Flanagan and M. C. Hamilton as United States Senators from the 
State of Texas. That State was admitted to representation in Congress March 30, 
1870. On the 22d day of February, 1870, without any previous authority from Con¬ 
gress, the legislature of the State elected Mr. Flanagan United States Senator for the 
term ending March 3, 1875, and also at the same time elected M. C. Hamilton United 
States Senator for two terms, namely, the term ending March 3, 1871, and the term 
ending March 3,1877. Senator Stewart of Nevada, submitted the report of the com¬ 
mittee, declaring Mr. Hamilton legally elected for the term ending March 3, 1877, 
and he was admitted without debate or division. 

THE ELECTION OF MR. DUBOIS WAS WITHIN THE TIME FIXED BY THE ACT OF AD¬ 
MISSION AND THE STATE CONSTITUTION, PROVIDED THESE PROVISIONS SHOULD BE 

HELD APPLICABLE TO HIS CASE. 

While your committee are clearly of the opinion that the election of Mr. Dubois was 
valid under the provisions of the Revised Statutes, it is proper that the fact should 
be stated that in the event it should be held (and upon this point your committee 
being divided express no opinion) that an election of a Senator for the full term 
commencing March 4, A. D. 1891, could have been legally had under the provisions 
of the constitution of the State of Idaho, and of the act of Congress admitting that 
State into the Union, then your committee agree that Mr. Dubois’s election is also 
valid under those provisions. These constitutional and statutory provisions changed 
the law as to the time within which at least the first two Senators from the State of 
Idaho could be elected from the second Tuesday after the meeting and organization 
of the legislsture, as provided in the Revised Statutes, to within ten days after its 
organization. 

The legislature met and organized, as found by your committee, on Monday, 
December 8, while contestant claims the organization was not effected until Tues¬ 
day, December 9; so, in any event, inasmuch as the election of Mr. Dubois took 
place on Tuesday, December 18, it was within ten days after the organization of the 
legislature, and therefore valid, under the provisions of the State constitution and 
those of the act of Congress admitting the State in the Union provided they should 
be made applicable, as some members of your committee believe they should be, to 
this election. 

WHEN THE ORGANIZATION TAKES PLACE ON A TUESDAY, WHEN SHOULD THE VOTING 

IN SEPARATE HOUSES TAKE PLACE ? 

In this case the claim has been made upon the part of the sitting member, Mr. 
Dubois, that in the event it should be held that the organization contemplated by 
section 14 of the Revised Statutes means necessarily a permanent organization, which 
in this case it is conceded did not take place until Tuesday, December 9, although 
consummated prior to 12 o’clock meridian of that day, that still the next Tuesday 
following would be, within the meaning of the fourteenth section of the Revised 
Statutes, the second Tuesday after the meeting and organization of the legislature. 

While under the view taken of this case by the committee it is not necessary to decide 
this question, your committee are clearly of the opinion that this contention upon 
the part of Mr. Dubois is not well founded. It is the opinion of your committee 
that in the computation of time in respect of the provisions of this statute the first 
day, that is, the day of organization, must in the count be excluded; consequently, 
where the organization takes place on a Tuesday, the second Tuesday after the 
meeting and organization provided in the statute would be two weeks from that 
date. 

IMMATERIAL 1SSUE8. 

An immaterial issue was raised in the hearing before your committee, and both 
parties were permitted to argue it, involving the good faith of Mr. Dubois and others 
in connection with certain resolutions in each of the State platforms of the two 


788 


SENATE ELECTION CASES. 


political parties in the State of Idaho in the campaign preceding the election of the 
first legislature in the State of Idaho, and under and in pursuance of which it is 
claimed that one Senator should have been chosen from northern Idaho and another 
from southern Idaho, the State being thus geographically divided. This, however, 
being a wholly immaterial matter, one which can have no possible bearing upon the 
legal and constitutional questions involved, and which can properly have no influence 
whatever in determining the legality of the election of either the sitting member or 
the contestant, your committee do not feel called upon to express any opinion what¬ 
ever on the issue thus presented. 

Counsel for Mr. Dubois has also argued in his printed brief at some length that 
even conceding Mr. Dubois was not legally elected, and that therefore there existed 
a vacancy on February 11, 1891, the date when the contestant, Mr. Clagett, claims 
to have been elected, that the alleged election of the latter, for sundry reasons sug¬ 
gested, was not legal. But as your committee find that Mr. Dubois was legally 
elected December 18, 1890, for the same term for which Mr. Clagett claims to have 
been elected February 11, 1891, it follows there was no vacancy on the latter date 
and it is unnecessary, therefore, to consider the questions involved in the alleged 
election of Mr. Clagett. 

THE CONCLUSION. 

In conclusion it is now conceded on all sides, and of this there can be no question, 
that it was not only the right but the duty of the legislature of the State of Idaho 
which convened Monday, December 8, A. D. 1890, to elect, not only two Senators for 
the two then existing vacancies, but also a third Senator for the full term commenc¬ 
ing March 4, A. D. 1891, as it was then certainly known to the legislature that there 
would be a vacancy for such term, and it was also known that such term would com¬ 
mence before another legislature of the State would be convened. Senators Shoup 
and McConnell were, as all concede, duly elected to fill the two then existing vacan¬ 
cies, while in the judgment of your committee Mr. Fred T. Dubois was at the same 
time, on December 18, A. D, 1890, duly and legally elected Senator for the full term 
commencing March 4, A. D. 1891. 

It was a legal certainty from the moment of the election of Messrs. Shoup and 
McConnell that the term of one or the other of these Senators would expire March 
4, 1891. It was at that time a legal certainty that the three classes of Senators 
whose terms were to expire March 4, 1891,1893, and 1895, respectively, were required 
by the Federal Constitution to be equal in number as nearly as possible, and it was 
a legal certainty that when Senators Shoup and McConnell were sworn as Senators 
the classes of Senators whose terms were to expire March 4, 1893, and March 4,1895, 
respectively, contained each 29 Senators, while the class of Senators whose terms 
were to expire March 4,1891, contained only 28. It was therefore a legal certainty 
that one of the two Idaho Senators was a member of the latter class, and that, too, 
not by virtue of any act of the Senate, but by the operation of the Constitution 
itself. The function of the Senate of the United States was not to determine whether 
one of the two terms expired March 4, 1891, but to determine which one of the two 
terms expired on that day. 

Your committee hold, both on construction and precedent, that the first legislature 
of the State of Idaho was organized on Monday, December 8, A. D. 1890, within the 
meaning of the term “organization,” as used in the constitution of the State of Idaho, 
in the act of admission, and in the Revised Statutes. The election of Mr. Dubois 
took place on Thursday, the 18th day of December, A. D. 1890. 

Tuesday, the 16th day of December, A. D. 1890, was, in the judgment of your com¬ 
mittee, the second Tuesday after the meeting and organization of the legislature of 
the State of Idaho. On that date a separate vote for Senator was taken viva voce in 
each house of the legislature as provided by the Revised Statutes. There being no 
election, the two houses met in joint assembly Wednesday, on the 17th day of Decem¬ 
ber, A. D. 1890, at 12 o’clock meridian in pursuance of the Revised Statutes, and took 
two ballots for United States Senator. 

There being no election, the joint assembly again reconvened at 12 o’clock meridian 
Thursday, December 18, A. D. 1890, all the members of the two houses save one being 
present and voting, at which time Mr. Fred T. Dubois received the viva voce votes of 
10 senators, the whole number of senators constituting the senate of the State of 
Idaho being 18. He received 22 votes from as many members of the house of rep¬ 
resentatives, the whole number of members constituting the house being 36, making 
in all 32 votes that were cast for the sitting member, Mr. Dubois, the whole number 
of members of the legislature of the State of Idaho being 54. 

Your committee therefore report back the following resolutions and recommend 
their adoption: 

RESOLUTIONS. 

Besolved, That Fred T. Dubois is entitled to retain the seat he now holds as Sena¬ 
tor from the State of Idaho for the full term commencing March 4, 1891. 


CLAGETT VS. DUBOIS. 789 

Resolved, That William H. Clagett is not entitled to he admitted to a seat in the 
Senate from the State of Idaho for the term commencing March 4, A. D. 1891. 

H. M. TELLER, 

Chairman. 

GEO. F. HOAR. 

JOHN H. MITCHELL. 

WM. E. CHANDLER. 

ANTHONY HIGGINS. 

JAMES L. PUGH. 

DAVID TURPIE. 

VIEWS OF THIS MINORITY. 

It is admitted that the election held by the Idaho legislature on the 16th of Decem¬ 
ber, 1890, for two Senators to till existing vacancies from that State in the United 
States Senate was properly and lawfully held on that day, the application of the gen¬ 
eral regulation of such elections contained in the act of Congress of 1866 being super¬ 
seded by the language of the constitution of Idaho, ratified and approved by the act 
of Congress admitting said State into the Union, and permitting the election of those 
Senators “within ten days” after the organization of the legislature. 

It seems to be further admitted that the election of a third Senator by the same 
legislature to fill a vacancy to occur in the future, to wit, on the 3d of March, 1891, 
necessarily arising from the expiration of the term of the one of the two Senators 
elected on the said 16th day of December, 1890, which should draw the short term, 
was required to be held, not within ten days as prescribed above, but under the pro¬ 
visions of the act of Congress of 1866. The real question at issue then is whether 
the alleged election of F. T. Dubois was held in compliance with that act as to time 
and manner. If it was, Mr. Dubois is entitled to retain his seat. If not, then either 
W. W. Clagett is entitled to occupy the seat or else it is vacant. 

The following is a copy of the statute of 1866 referred to: 

“Sec. 14. The legislature of each State which is chosen next preceding the expira¬ 
tion of the time for which any Senator was elected to represent such State in Con¬ 
gress shall, on the second Tuesday after the meeting and organization thereof, pro¬ 
ceed to elect a Senator in Congress. 

“Sec. 16. Such election shall be conducted in the following manner: Each house 
shall openly, by a viva voce vote of each member present, name one person for Sena¬ 
tor in Congress from such State, and the name of the person so voted for who receives 
a majority of the whole number of votes cast in each house shall be entered on the 
journal of that house by the clerk or secretary thereof; or, if either house fails to 
give such majority to either person on that day, the fact shall be entered on the jour¬ 
nal. At 12 o'clock meridian of the day following that on which proceedings are 
required to take place as aforesaid, the members of the two houses shall convene in 
joint assembly, and the journal of each house shall then be read, and if the same 
person has received a majority of all the votes in each house, he shall be declared 
duly elected Senator. But if the same person has not received a majority of the votes 
in each house, or if either house has failed to take proceedings as required by this 
section, the joint assembly shall then proceed to choose, by a viva voce vote of each 
member present, a person for Senator, and the person who receives the majority of 
all the votes of the joint assembly—a majority of all the members elected to both 
houses being present and voting—shall be declared duly elected. If no person 
receives such majority on the first day the joint assembly shall meet at 12 o'clock 
meridian of each succeeding day during the session of the legislature, and shall take 
at least one vote until a Senator is elected. 

“Sec. 16. Whenever on the meeting of the legislature of any State a vacancy exists 
in the representation of such State in the Senate, the legislature shall proceed on the 
second Tuesday after meeting and organization to elect a person to fill such vacancy 
in the manner prescribed in the preceding section for the election of a Senator for 
the full term.” 

It will be seen that, in pursuance of the Constitution, Congress by this act has pro¬ 
vided regulations both for the time and the manner of electing United States Sena¬ 
tors. The time at which the elections are to begin is “ on the second Tuesday after 
the meeting and organization ” of the legislatures: the manner is prescribed to be 
by a viva voce vote of each member of each house oi the legislature taken separately, 
and on failure of any candidate to receive a majority of the votes in each house, or 
if either house has failed to take the required proceedings of voting separately, then 
the two houses are convened in joint assembly and proceed with the election, etc. 

The members of the legislature of Idaho assembled in compliance with law at Boise 


790 


SENATE ELECTION CASES. 


City, on Monday, the 8th of December, 1890. There can be no donbt, therefore, hut 
that Tuesday, the 16th of the same month, was the second Tuesday after the meeting 
of the legislature. But the legislature is required to elect Senators on the second 
Tuesday, not after the meeting alone, hut after “the meeting and organization.” 
Now, let us inquire if the Idaho legislature was organized, as well as had met, on 
Monday, the 8th of December, 1890; for, if it was not organized until Tuesday, 
the 9th, both reason and authority unite to say, and in part the report admits, that 
Tuesday, the 16th, was not the second Tuesday after organization, but the first. 

In adopting the language of the statute we have no reason to suppose that Con¬ 
gress attached any abstruse or unusual meaning to the word organization. On the 
contrary, we are to presume that they used it in its ordinal and common-sense 
application, such as is understood to be its universal meaning by all American com¬ 
munities in the formation of every class and character of representative assemblies, 
whether official and legal or merely popular or social. It is the comprehensive and 
familiar term used to describe that process by which collective bodies of the people 
emerge from the chaos of mere numbers into that combined unity which is necessary 
to efficient and concerted action. 

A number of men entertaining certain opinions or desiring to do certain things 
meet at a certain time and place, and by common consent choose a mouthpiece who 
shall represent them and give utterance to their collective will, and a scribe or 
recording officer to record that will. We then speak of such a body as “ organized,” 
and not until then. There is, perhaps, no exception whatever to this. 

No one probably ever heard of an assembly of any kind in our country being spoken 
of as organized until it had some one to preside over its deliberations, collect its 
will by an appeal to the members present, and a proper officer to record and perpet¬ 
uate that will when collected and announced. To suppose an instance to the con¬ 
trary would be to imagine an absurdity. We must conclude, therefore, that when- 
Congress fixed the time from which should be computed the “ second Tuesday after 
organization ” it meant so much and such complete organization as is usually under¬ 
stood to be necessary for the efficient action and practical working of legislative 
bodies in all the American States. 

It is not necessary to aver that Congress meant that the legislature should have 
elected and installed in office every possible officer that in its discretion it might 
deem necessary to its efficiency or convenience, but we hold that Congress must have 
meant that the organization should include, together with a presiding officer to col¬ 
lect and announce its will, a recording officer to preserve and perpetuate that will. 
And as the presiding officer was required to be sworn, so was the recording officer, 
and until both of these things had been done there was no organization within the 
meaning of the act. 

The records of the two houses of the Idaho legislature show that on the first day 
of the session, to wit, the 8th of December, the senate took no steps toward electing 
any of its officers, being called together by the lieutenant-governor, who, under the 
constitution of the State, was ex officio its president, and a secretary pro tempore 
being appointed, or assuming to act by a common consent. The members were 
sworn in, committees were appointed to provide rules for the government of the sen¬ 
ate, arrangements were made for the distribution of seats among the members, a 
resolution was adopted providing for the application of the rules of the fifteenth 
session of the legislative council to the government of the senate until the report of 
the committee on rules was adopted, and finally a committee on “organization to 
designate and determine the number and order of offices to be filled” was appointed, 
whereupon the senate adjourned until the next day. 

This comprised substantially the whole of the first day’s proceedings, not one act 
•f which constituted organization, but every one of which was a step in the process 
of organization; which condition of disorganization is fully and explicitly acknowl¬ 
edged by the adoption of a resolution for the appointment of a committee for the 
express purpose of providing for and determining that organization. 

On the next day, to wit, on Tuesday, the 9th of December, that committee on 
organization made the following report: 

“second day. 


“Senate Chamber, 

“ Boise City, December 9 , 1890 . 

“ Senate met, pursuant to adjournment, at 10 o’clock a. m. 

“ Senate was opened by prayer by Rev. Mr. Gowan. 

“ Roll called; all present. 

“The committee on organization made the following report: 

“‘Mb. President: We,your committee on organization appointed to designate 


CLAGETT YS. DUBOIS. 791 

and determine the number and order of the offices to he filled by the senate, ask lief 
to report as follows: 

“ ‘1st. President pro tevipore of the sonata 

“ ‘2d. Secretary of the senate. 

‘ “ 3d. Assistant secretary of the senate. 

“‘4th. Engrossing clerk. 

“ ‘5th. Assistant engrossing clerk. 

‘“6th. Enrolling clerk. 

“‘7th. Assistant enrolling clerk. 

“‘8th. Two pages. 

“ ‘ 10th. Doorkeeper. 

“‘11th. Janitor. 

“ ‘ 12th. Chaplain. 

“ ‘ Respectfully submitted. 

“‘J. W. BRIGHAM, Chairmanf 

“Mr. Weller moved that the report be adopted. 

“Which motion prevailed. 

“Mr. Wells moved that the senate now proceed to the election of the officers as 
designated in the report of the committee on organization. 

“ The motion prevailed.” 

The officers here provided for were all elected on the same day; they were notified 
of their election; were required to be present in the chamber at 2 o’clock to take the 
oath of office; they appeared and were sworn in. Whereupon, and not before, it 
was moved and carried that a message be sent to the “house of representatives, in¬ 
forming them that the senate is now organized and ready for the transaction of busi¬ 
ness.” Thus it appears that the senate of the Idaho legislature did not consider 
itself “ organized,” and, in fact, was not organized, until the afternoon session of 
Tuesday, December 9, 1890, when, and for the first time, it had in office the proper 
and necessary officers, duly sworn; whereupon it not only announced its organiza¬ 
tion to the lower branch, but announced it as well to the coordinate or executive 
branch of the lawmaking power of the State. 

In the house of representatives almost exactly similar proceedings were had; a 
speaker and principal officers were elected on Monday, the 8th, but none except the 
speaker were sworn or inducted into office that day. On Tuesday, the 9th, the offi¬ 
cers of the house were completed by the election of a chaplain; a committee was 
appointed to draft rules for the government of the house; the officers and attaches 
elected on the previous day were caused to appear, and the oath of office was admin¬ 
istered to them; and then immediately, as appears by the record, and not until then, 
on motion of Mr. Jones, it was ordered— 

“ That the chief clerk notify the council (senate) that the house was permanently 
organized and ready to proceed to the transaction of legislative business.” 

Nothing can be plainer than the fact that neither house of the legislature consid¬ 
ered itself organized until the moment when it so announced, and the attempt to 
evade the force of this fact by saying that the official and customary announcement 
of organization on a certain day does not forbid the conclusion that that organiza¬ 
tion had taken place the day previous, is the merest begging of the question, and is 
nothing short of trying to make an unsupported inference contradict the positive 
assertions of the record. 

This method of announcing the formal organization of legislative bodies immedi¬ 
ately succeeding the selection of its permanent officers has for its precedent the 
example of the United States House of Representatives. In the manual and digest 
of its rules, after providing for the method of electing a speaker, and after his elec¬ 
tion, it is stated on page 423: 

‘ ‘ The organization of the House is then completed by the election of the officers 
named in Rule 2, after which the Delegates from the Territories are then called and 
sworn.” 

Rule 2 is as follows: 

“ There shall be elected by a viva voce vote at the commencement of each Congress, 
to continue in office until their successors are chosen and qualified, a Clerk, Sergeant- 
at-Arms, Doorkeeper, Postmaster, and Chaplain, each of whom shall take an oath to 
support the Constitution of the United States.” 

The manual continues— 

“At this stage (immediately after such election and swearing in of officers) it is 
usual for the House to adopt the order that a message be sent to the Senate to 
inform that body that a quorum of the House of Representatives has assembled, and 

that-, one of the Representatives from the State of-, has been chosen 

Speaker, and that-, a citizen of the State of-, has been chosen Clerk, 

and that the House is now ready to proceed to business.* 







792 


SENATE ELECTION CASES. 


That is to say: 

“ Having a presiding officer to collect and announce the 'will of tne body and a 
olerk to record that will, we are now ready to proceed to business—we are now 
organized.” 

Is it possible to mistake the meaning of Congress in the language of the act of 
1866, in fixing the time for the election of Senators on the second Tuesday “ after 
the meeting and organization” of the legislature? Could they have meant anything 
else than that that organization should consist at least of the election of speaker 
and clerk, both duly sworn and inducted into office, when Congress itself required 
not only this much, but that all the other officers mentioned in Rule 2 to have been 
elected, sworn, and inducted into office before formally announcing to all concerned 
that their organization was complete and that they were ready to proceed to busi¬ 
ness? 

It must be borne in mind, too, that the evidence of the organization of the two 
houses of the Idaho legislature furnished by their records here referred to is not 
only possessed of all the ordinary weight attached to the solemn records of legisla¬ 
tive or judicial bodies, but is peculiarly convincing by reason of the fact that its 
statements were written down before any of these contentious, disreputable combina¬ 
tions and bitter feuds growing out of the Senatorial elections had arisen, and before 
their significance could have in any way been anticipated; and in this unbiased way, 
in this natural way, the truth incontestably appears that neither house of that leg¬ 
islature was organized on Monday, the 8th of December; that neither house treated 
itself as organized or claimed that it was organized, or attempted to do any act 
except those which would lead up to “ organization ” until Tuesday, the 9th of 
December, 1890. 

Then, having elected and sworn in the officers which they thought necessary, in 
obedience to the recommendations of a special committee appointed for that very 
purpose, then, and not till then, did they declare themselves organized and ready to 
proceed with the public business. 

An attempt is made to show that the language of the statute is complied with by 
maintaining that a temporary organization is sufficient and equivalent to permanent 
organization. This we do not think is tenable. The law only speaks of organiza¬ 
tion; one state or condition of readiness for the legal transaction of business. It 
must mean the real, the complete. 

It is not possible for any body to put itself into shape for effective action without 
going through some preliminary steps which must be permitted by sufferance and 
common consent. For example, a multitude desires to resolve itself into a delibera¬ 
tive body. The only possible way by which this can be done is for some one of the 
number to propose that A. B. be requested to take the chair, or to preside. Now, 
the mover of this proposition does so by virtue of no legal right or authority, all in 
the assemblage being upon an absolute equality. But some one must take the initial 
step or organization will never be effected. So by common consent he puts the 
machine in motion and calls for an expression of opinion or the will of the multitude 
on his own authority, and announces the result. A. B. is chosen chairman and 
organization is begun. 

Now, as well might it be said that the meeting was organized when this volunteer 
assumed to control its proceedings and take the sense of its members, as to say that 
an officer called upon temporarily to perform oertain duties in the legislature, for the 
purpose of testing the sense of the body as to who its officers should be, constituted 
an organization within the meaning of the act of Congress. This was not organiza¬ 
tion, but only one further step toward it. A temporary organization, as its name 
imports, is merely a makeshift, a tide-over, a stepping-stone to the real organization 
which the act of 1866 contemplated; a mere mold to hold the soft material in shape 
until it hardens into self-sustaining consistency. 

Viewed in another sense, a temporary organization is in terms an incomplete 
organization, and an incomplete organization is no more an “ organization ” contem¬ 
plated or required by the act than is a part of anything the thing itself. A body 
can not be said to be organized when it is admittedly only partly organized; and 
if there be no distinction between the organization of a body and the necessary 
unavoidable initial steps which lead up to it, then the whole force and purpose of 
the act of Congress is rendered indefinite and worthless, since there are a score of 
such preliminary steps, each one of which might be counted as “ organization,” and 
from which the time required by the statute might be computed. 

Nor do we think that the capacity of a legislature to enact a law a fair test of its 
condition of “ organization” within the meaning of the act of Congress. If such 
had been its meaning there would have been no necessity for the insertion of that 
word. In fact, it would have been quite as effective and much more definite if the 
words had been “on the second Tuesday after the meeting of the legislature,” for 
the body of men elected for that purpose would not in fact become the “legislature ” 
until they had put themselves in shape to discharge their constitutional functions. 


CLAGETT VS. DUBOIS. 


793 


This was the original language of the bill, but on the suggestion of Mr. Fessenden, 
Mr. Clark, who had the bill in charge, agreed to add the words “ and organization/' 
in order to meet the cases where organization did not immediately ensue after the 
meeting of the legislature. (See Globe, first session, Thirty-ninth Congress, pages 
3727,3728.) 

Congress, therefore, saw fit to use the words, “ meeting and organization,” and 
they must have meant by it to fix the time of electing Senators to depend upon some 
other stage of legislative existence than that of its first capacity to enact a law. 

Organization as applied to all deliberate assemblies in our country had a well- 
known meaning of universal use, and designated a stage in the existence of the 
assembly where it was supplied with all the necessary adjuncts of legislation, and 
nothing more was required to enable it to discharge its functions. Again, if the 
capacity to enact a law was a sufficient organization to comply with the statute, 
then the obvious intention of the lawmakers could be easily defeated. For it is not 
to be denied that a legislature has the power to enact a law without either a speaker 
or a clerk, unless required to have such officers by the State constitution. 

Yet, in requiring that there should be an organization as well as a meeting of the 
legislature at least two Tuesdays prior to its election of Senators, Congress plainly 
precluded such an idea, and described the event from which the time was to be com¬ 
puted as the organization of the legislature in the plain, simple, and usual maimer 
of such bodies. 

WHO HAS THE RIGHT TO DECIDE WHEN A LEGISLATURE IS ORGANIZED! 

The Constitution of the United States provides that Senators shall be chosen by 
the legislatures of the States, respectively, and grants to Congress the power of regu¬ 
lating the “time ” and “ manner ” of so choosing them. The act of Congress of July, 
1866, has fixed the time for initiating the proceedings for such choosing as the sec¬ 
ond Tuesday after the meeting and organization of the legislature next preceding, 
etc. Clearly the duty imposed by the Constitution is upon a lawmaking body; upon 
that department of the government having the legislative function, and when the 
act speaks of the organization of that body, it must, by every reasonable intendment, 
mean that systematized arrangement of constituent and independent parts, or organ¬ 
ization of each house, which by the determination of each house shall be appropriate 
and necessary for the discharge of its legislative function. 

What stage, or degree, or kind of organization may be appropriate and necessary 
for this purpose is not for the Senate of the United States to decide. That must 
belong to the two houses, respectively, of the legislature, and is necessarily exclu¬ 
sive. It is competent for either house to decide that an organization less complete 
than that sanctioned by the universal usage of American Commonwealths shall be the 
organization through and by which it will discharge its legislative duties. It might 
be determined that a presiding officer and clerk elected de novo each day should be 
the final method of organization. Or, if the constitution did not otherwise provide, 
that it would impose on the presiding officer the duty of keeping the journal. 

Such organization, it is true, would be anomalous, violation of established usage, 
and demoralizing, and not to be presumed as the will of a legislative body, except 
upon the clearest proof that such was its determination. 

But the point we are making is that it is exclusively within the competence of 
each branch of a State legislature, except so far as it is restrained by the constitu¬ 
tion or laws of the State, to decide for itself what its final or legislative organiza¬ 
tion shall be. When that determination clearly appears, either by express declara¬ 
tion or by conduct of business, or by both, then it is not competent for any other 
body or person or department of Government to determine otherwise. 

It is a clearly established fact in the present case that both houses of the legisla¬ 
ture of Idaho were merely proceeding on the 8th of December in orderly fashion 
towards a final legislative organization, such an organization as they considered 
necessary and appropriate for the performance of their legislative functions. The 
evidence is overwhelming that neither branch considered the so-called temporary 
organization made on the 8th as anything more than a proper and necessary step in 
the process of reaching that final legislative organization which was accomplished 
on Tuesday the 9th. What either branch might have considered this first stage in 
the proceeding is not the question, but what did it consider it? 

Not only do we have the conduct and action of each branch, as set forth in their 
respective journals, as evidencing its determination in this regard, but we have 
their declarations, as set forth in resolutions adopted by each house, expressing and 
confirming that determination. 

In addition to the resolutions adopted by each house separately on Tuesday, 
December 9, to inform the other that it was permanently organized, we have the 
resolutions of the two houses passed on Tuesday, December 9, after the reception ojf 


794 


SENATE ELECTION CASES. 


the messages from the houses, respectively, pursuant to the resolutions referred to, 
as follows: 

“Mr. Mills offered the following resolution; which was adopted: 

“ 1 Resolved, That a committee of three (3) members be appointed by the speaker 
to join a like committee which may be appointed by the senate to wait upon his 
excellency, the governor, and inform him that the legislature is organized and now 
in session and ready to receive any communications he may be pleased to transmit/ 

u The speaker appointed as such committee Messrs. Monroe, Porter, and Ballen- 
tine. 

“Mr. Wells moved that a committee of two be appointed to act with a like com¬ 
mittee of the house to wait upon his excellency, the governor, to inform him that 
the legislature is now organized and ready to receive any communication he desires 
to make. 

“ The motion prevailed.” 

It is idle, therefore, to contend that the partial and incomplete organization o. 
either house on Monday was sufficient to enable it to perform legislative business if 
it chose to do so, in the face of the fact that both houses determined that a further 
and more complete stage of the process, not attained until Tuesday, was necessary 
for that purpose. 

INCIDENTAL REFERENCES NOT CONCLUSIVE OF THE FACT OF ORGANIZATION. 

It can not surely be maintained with seriousness that the incidental recital of a 
conclusion by a presiding or other officer of the body is entitled to greater weight 
than the direct and solemn resolution of the body itself. Yet the committee insist 
that the recitals of President Willey and Speaker Fenn, contained in their certificate, 
made on the 19th of December, 1890, that the houses were organized on Monday, the 
8th, are conclusive, although the two houses themselves announced their organiza¬ 
tion on the 9th at the moment of its accomplishment, and subsequently, on the 9th 
of February, 1891, by a joint resolution, solemnly declared that their organization 
was made on Tuesday, the 9th of December, 1890. 

THE AFTERTHOUGHT CONCERNING THE WRONG DAY NOT MATERIAL. 

In answer to the allegations of the report that the charge that the election of 
Dubois as Senator was held on the wrong day was merely an afterthought and was 
not suggested by anyone at tbe time, it seems to the undersigned to be sufficient to 
simply remind the Senate that when a time and place are fixed by law for holding 
an election the election must be held then and there, and nowhere else, or it is void. 
Consent of all the voters can not change it, and the fact that no one objected makes 
not the slightest difference if in fact the time was not the day prescribed by the law. 

CONGRESSIONAL AND STATE PRECEDENTS. 

The conclusion reached by the committee that Mr. Dubois was elected is based 
entirely upon the contention that the Idaho legislature was organized within the 
meaning of section 14, on Monday, December 8, because on that day each house had 
a permanent presiding officer, duly chosen and qualified, and a permanent clerk in 
the house, duly chosen but not qualified, and a secretary pro tempore in the senate, 
who was never, as secretary pro tempore, qualified by being sworn into office. In 
other words, that each house was organized within the meaning of section 14, because 
it had a permanent presiding officer and acting clerk in the house, and a permanent 
presiding officer and temporary secretary in the senate. To support this contention 
the committee in its report cites certain alleged precedents in the House of Repre¬ 
sentatives and the legislature of Iowa in the years 1870 and 1872. 

We regret that the committee did not make a more careful examination from the 
original records of these alleged precedents. Had it done so it would have discovered 
that instead of being precedents in favor of the sitting member when tested by con¬ 
ceded legal principles and examined as to facts in detail, they are without exception 
precedents in favor of contestants. These alleged precedents are all dwelt upon at 
length in the printed brief of Mr. Paine, counsel for Mr. Dubois, submitted to the 
committee, and which the majority of the committee seems to have accepted without 
examination as being correctly stated as to fact and conclusion. 

We will examine the alleged precedents in Iowa first. In the years 1870 and 1872, 
when Senators were elected in that State, the legislature elected such Senators on 
the second Tuesday after the meeting of the legislature on Monday, the day appointed 
by law for holding its regular sessions. In both of those years, as also in every year 
thereafter, down to 1890, the uniform practice adopted on Monday, the day of meet¬ 
ing, was to elect a speaker and clerk pro tempore in the house, and then adjourn 


CLAGETT VS. DUBOIS. 795 

pntil the next day, after appointing a committee on credentials in some cases, and 
in others without appointing such committee. 

On Tuesday (the next day) where the committee on credentials had been appointed 
the day before, the report of this committee was first received, and where not 
appointed the day before, a committee was appointed on Tuesday to ascertain from 
their credentials who were the members elect, and therefore entitled to take part in 
the organization of the body. This being ascertained, in every instance, the mem¬ 
bers elect were sworn into office on Tuesday, and immediately thereafter proceeded 
to elect their regular officers, which being done, notice was given to the senate that 
the house was organized. 

In those two y ears the legislature elected Senators on the second Tuesday from 
this Monday, and the credentials of those Senators presented to the Senate certified 
that they were elected on the second Tuesday after the temporary organization of 
the legislature. It will not be disputed that the qualification of the members by 
being sworn into office (as required by the Constitution of the United States) is abso¬ 
lutely essential to transform a body of members elect into members, and change such 
body of members elect into a legislative house. In the two cases above mentioned 
this was not done until the Tuesday after the day of meeting. Until such Tuesday, 
therefore, there was not even a house of representatives in existence, to say nothing 
about there being a house duly organized. Nevertheless, the Iowa legislature, in 
electing Senators in those years, assumed that each house was organized within the 
meaning of section 14 on Monday, the day of meeting, w hen there was not a legisla¬ 
tive house in existence, but only a body of men claiming that they had a right to 
sit as members when it should be ascertained they were so entitled and they should 
be duly sworn in as members. 

The simple statement of these facts disposes of those two alleged precedents, unless 
it can be shown that a violation of all law becomes law from the mere fact of such 
violation. 

At the next five ensuing Senatorial elections in that State, made in the years 1876, 
1878,1882,1884, and 1888, respectively, the legislature of Iowa followed the course 
taken by its predecessors in 1870 and 1872 and elected Senators on the second Tues¬ 
day after Monday, its day of meeting, and before a single member had been sworn in 
in either house. This action seems to have been taken in deference to the example 
set prior to 1876. Those five legislatures, however, beginning with 1876, evidently 
concluded that the idea of treating the two houses as being organized when there 
was not any house in existence was radically wrong, because while following the 
practice in 1870 and 1872 and electing the second Tuesday after the temporary organ¬ 
ization, they also held a double election in each case one week after the permanent 
organization and elected the same person over again. 

This deliberate action by the Iowa legislature at five successive elections is proof 
that those legislatures considered that the action taken in 1870 and 1872 was without 
warrant of law. And at the last election held in that State in 1890 the legislature 
deliberately overturned those two alleged precedents and distinctly declared, not 
only by its action, but by formal resolution also, that it was the permanent and not 
the temporary organization that is referred to in section 14. We now refer to the 
facts relating to the last election in 1890, as shown by the journals of the two 
houses. 

The legislature met Monday, January 13, 1890. In the house nothing was done on 
that day, except that a person was authorized to “ act as temporary reading clerk." 
(H.J.,p.l.) 

Beginning with Tuesday, January 14, the house balloted daily and without suc¬ 
cess down to January 27, when a temporary speaker and speaker pro tempore and a 
temporary clerk and a clerk pro tempore were elected. Immediately upon their elec¬ 
tion a committee on credentials was appointed, and the members being ascertained 
were duly sworn into office. Balloting then began for permanent officers and continued 
without success from January 27 to February 19, when a permanent speaker, chief 
clerk, and other officers were elected and sworn. (J., pp. 83-87.) 

After the election of such permanent officers, and not before, the house in the 
usual form notified the senate “That the house has completed its organization and 
is ready to receive any communication from the senate.” (J., pp. 87,88.) From the 
meeting of the legislature, on January 13, to February 19, when the permanent offi¬ 
cers were elected, the house transacted no legislative business whatever. 

The senate on the day of meeting elected a temporary secretary, sergeant-at-arms, 
and other officers (S. J., p. 1), and adjourned until the next day. January 14 the 
members were sworn, and on the same day thereafter, the permanent officers elected 
and qualified, and the governor thereupon notified that the senate was organized. 
January 15 the senate notified the house of its organization. 

Thus on January 27 the senate had a permanent and the house a temporary organiza¬ 
tion. If the legislature had followed the practice in 1870 and 1872, it would have 
initiated the election of Senator on the second Tuesday after January 27. Instead 


796 


SENATE ELECTION CASES. 


of doing so, however, it waited until the 4th of March, being the second Tuesday 
after February 19, on which day both houses had secured a permanent orgauization. 

On March 3, 1890, the legislature of Iowa passed a concurrent resolution which in 
terms settled the construction in that State of section 14, and removed for the future 
the doubts which had theretofore prevailed as to whether the temporary organiza¬ 
tion could legally answer the requirements of that section, in the election of a 
Senator. The concurrent resolution, found in House Journal, page 153, is as follows: 

“ That at 12 o’clock meridian on Wednesday, March 5, 1890, that being the day 
following the second Tuesday after the organization of the general assembly, the 
members of the general assembly will meet in joint convention in the hall of the 
house to compare the journals of the two houses and to declare the result thereof 
with reference to the election of a United States Senator for the State of Iowa for 
six years from the 4th day of March, 1891.” 

On the day following the passage of this resolution, viz, on March 4, the two 
houses voted separately for Senator, said day being the second Tuesday after the 
permanent organization, and on the next day, viz, on March 5, met in joint assem¬ 
bly, as provided in the concurrent resolution, and Mr. Allison was duly declared 
elected Senator. 

Thus, after twenty years of confusion and doubt, the State of Iowa has at last 
distinctly settled for itself the construction of section 14 by adopting the construc¬ 
tion which has uniformly prevailed in every other State of the Union on that sub¬ 
ject. So that now we have a uniform legislative exposition of all the States to the 
effect that it is the permanent and not the temporary organization which is the event 
from which to compute the second Tuesday. 

We have heretofore shown that the adoption of the construction claimed by the 
majority of the committee would make universal in all the States the same doubt 
and confusion which prevailed in Iowa for twenty years, and absolutely destroy the 
value of the act of 1866 by substituting for a certain day, and hour of the day, when 
an election is held, a shifting, indefinite, and uncertain time, under which every 
evil would be greatly increased to prevent which that act was passed; not only 
increased in States where the evils existed prior to the passage of that act, but 
extended to every State of the Union which prior to that time had held regular and 
orderly elections under the safeguards of State laws, which State laws were abro¬ 
gated and all others prohibited when Congress legislated on this subject. 

To the above statement, that the construction in all the States is now to the effect 
that it is the permanent organization created by the election of permanent presiding 
and recording officers that is mentioned in section 14, there would appear to be an 
exception in the South Carolina case cited in Mr. Paine’s brief (p. 19). This cita¬ 
tion is made in such terms as to cause it to appear that in 1868 the legislature of 
that State voted that it was permanently organized, by the election and qualifica¬ 
tions of a permanent spealcer only, the clerk and other officers being such pro tempore. 
As stated, this case would seem to support the claim of the committee; and, although 
not referred to by it in the report, we deem it proper to consider it, as it has been 
called to the attention of the Senate by the distribution of Mr. Paine’s brief. 

The legislature of 1868 was the first one convened under the State constitution 
adopted in that year, at the close of the period of reconstruction, and the manner in 
which the first legislature should be organized is prescribed in an ordinance at¬ 
tached to the constitution, as follows: 

“ Sec. 2. That each house shall be temporarily organized by the election of a pre¬ 
siding officer, to whom the oath of office shall be administered by the president of 
this convention, and which presiding officer shall then administer the said oath to 
the other members. 

“ Sec. 3. That as soon as the house of representatives has permanently organized by 
the election of a spealcer, and shall have appointed a date for the purpose, the governor 
shall be installed into office in the presence of both houses, and the oath of office 
shall be administered to him by the president of this convention, and who shall 
thereafter administer the said oath to the lieutenant-governor in the senate cham¬ 
ber. . (Constitution S. C., 1868, p. 43.)” 

It is thus seen that at that session, specially provided for in the constitution, the 
house was declared permanently organized by the election of a speaker only, and the 
proceedings in the organization of that legislature were strictly in accordance with 
the constitution. At subsequent elections held in that State in the years 1870, 1872, 
and 1878, and when it was not proceeding under this special constitutional provision’ 
the legislature of that State, by its action and vote, held that the house was not 
organized until the permanent spealcer and cleric were both elected and qualified. 

THE CONGRESSIONAL, PRECEDENTS REFERRED TO IN REPORT OF COMMITTEE. 

The eleven Congressional precedents in the House of Representatives cited in the 
committee’s report [page 681, ante ] are cited to show that in these eleven case® 
the House of Representatives has voted that it was organised and ready to proceed 


CLAGETT VS. DUBOIS. 797 

to business when it had a permanent presiding officer only, and when it had no regu¬ 
larly chosen and qualified recording officer. 

This appears from the language of the report [p. 682, ante], as follows: 

“On not less, therefore, than eleven definite occasions has the House of Repre¬ 
sentatives ot the United States decided, and in its decision the Senate and the 
President have acquiesced, that it is an organized House when a quorum of the 
Representatives have assembled, taken the oath of office, and chosen a presiding 
officer.” 

The conclusion reached by the committee, that in these eleven Houses the House 
had no regularly chosen and qualified recording officer, is based upon the fact that 
after the election of Speaker, and before the election of the Clerk, the House has 
notified the Senate that it was organized and ready to proceed to business, and in 
many instances has transacted legislative business during the time intervening 
between the election of the Speaker and the election of a Clerk. 

The alleged precedents are no precedents at all in favor of Mr. Dubois, but are 
precedents of the most conclusive character in favor of contestant, for the reason 
that since the beginning of the Twenty-fifth Congress (1839) the House has had a 
standing rule by which its Clerk and Sergeant-at-Arms, and at a later date its 
Doorkeeper and Chaplain, when once elected, hold their offices until their successors 
are elected and qualified. Prior to 1839 the practice of the House is thus summarized 
by Mr. Barclay: 

“ On the 1st of April, 1789, being the first day of a quorum of the House assembled 
under the new Constitution, the House immediately elected a Clerk by ballot, with¬ 
out a previous order being passed for that purpose, although in the case of a Speaker, 
who was chosen on the same day, an order was previously adopted. A Clerk has 
been regularly chosen at the commencement of every Congress since. The provision 
for the election of all officers of the House by viva voce vote was adopted December 
10, 1839. (See Barclay's Digest, p. 163.)” 

In 1839 the following rules were adopted by the Twenty-fifth Congress: 

“ The Clerk of the House shall take an oath for the true and faithful discharge of 
the duties of his office to the best of his knowledge and ability, and shall be deemed 
to continue in office until another he appointed. (Constitution, Rules, and Manual, 
Twenty-fifth Congress, p. 67.) 

“A Sergeant-at Arms shall be appointed to hold his office during the pleasure of the 
House, whose duty it shall be to attend the House during its sittings; to execute the 
commands of the House from time to time, together with all such powers issued by 
authority thereof as shall be directed to him by the Speaker. (See Constitution, 
Rules, and Manual, Twenty-fifth Congress, p. 59.)” 

These rules were adopted, by special order, by the Twenty-sixth Congress (Con¬ 
gressional Globe, Vol. 6, p. 56), by the Twenty-seventh Congress (Congressional 
Globe, Vol. 8, p. 4), by the Twenty-eighth Congress (Yols. 12 and 13, p. 335), by the 
Twenty-ninth Congress (Vol. 15, pp. 4 and 428), by the Thirtieth Congress (Vol. 18, 
pp. 3 and 49), by the Thirty-first Congress (Vol. 21, p. 78), by the Thirty-second 
Congress (Vol. 26, p. 10), by the Thirty-third Congress (Vol. 32, p. 4), by the Thirty- 
fourth Congress (Vol. 38, p. 35), and by the Thirty-fifth Congress (Vol. 4, p. 3). 

At the first session of the Thirty-sixth Congress, on March 16, 1860, these old 
rules were changed to read as follows: 

“ There shall be elected at the commencement of each Congress, to continue in office 
until their successors are appointed, a Clerk, Sergeant-at-Arms, Doorkeeper, and Post¬ 
master, each of whom shall take an oath for the true and faithful discharge of the 
duties of his office to the best of his knowledge and ability, and to keep the secrets 
of the House; and the appointees # of the Doorkeeper and Postmaster shall be subject 
to the approval of the Speaker; and in all cases of election by the House of its offi¬ 
cers the vote shall be taken viva voce. (Rule 10, Constitution, Rules, and Manual, 
1876, p. 163.)” 

This rule 10 remained the standing rule of the House until the present rule 2 was 
adopted, which rule is as follows: 

* 1 There shall be elected by a viva voce vote at the commencement of each Congress to 
continue in officeuntil their successors arechosen and qualified, a Clerk, a Sergeant-at-Arms, 
Doorkeeper, Postmaster, and Chaplain, each of whom shall take an oath to support 
the Constitution of the United States, for the true and faithful discharge of their 
duties to the best of their knowledge and ability, and to keep the secrets of the House, 
and each shall appoint all of the employes of his department provided for by law. 
(Rule 2, Constitution, Manual, and Digest Fifty-second Congress.)” 

It thus appears that the entire period covered by the eleven Congressional prece¬ 
dents referred to by the committee the Clerk and Sergeant-at-Arms of the House of 
Representatives after being once chosen and qualified, continued in office as the regu¬ 
lar officers of the House until their successors were chosen and qualified. 

It results, therefore, that in every instance referred to by the committee to show 
that the House had no clerk when it notified the Senate that it was organized after 


798 


SENATE ELECTION CASES. 


the election of the Speaker, is incorrect, because in every case the Clerk elected at 
the last preceding Congress was in office, holding over under the Rules of the House. 

To make it absolutely clear that at every period of its existence the House has con¬ 
sidered the election and qualification of a Clerk equally as essential to the organiza¬ 
tion of that body as the election and qualification of its Speaker, attention is called 
to the fact that in the Thirty-first Congress the Clerk's office became vacant during 
the session by the death of the incumbent. The proceedings taken thereon by the 
House (Mr. Howell Cobb, Speaker) are inserted herein in full, as follows: 

“ House of Representatives, Tuesday, April 16,1850. 

“The Speaker called the House to order at 12 o'clock. 

“One of the assistants of the late Clerk of the House, Mr. J. C. Walker, proceeded 
to read the Journal of yesterday. 

“Mr. Hall interposed and said that he had risen to inquire by what authority any 
person prepared the Journal here, under what authority the individual now at the 
desk was reading the Journal. The House had had a Doorkeeper and a Postmaster 
foisted upon it and he, for one, was not willing that a Clerk should be put upon the 
House in the same way. He objected to the Journal being read until the House had 
authorized some individal to read it. 

“ The Speaker. The Chair will state to the House that the Journal has been pre¬ 
pared as usual under the direction of the Speaker. The individual at the desk, who 
was reading the Journal, was one of the subordinate officers of the late Clerk of the 
House of Representatives. The positions occupied by these officers previous to the 
death of the Clerk are still, in the judgment of the Chair, occupied by them. They 
are not authorized, however, to discharge the duties of Clerk. In the opinion of the 
Chair until a Clerk shall have been elected the House is not organized and no business can 
be transacted until an election shall have taken place. But this state of things does not 
prevent the preparation or the reading of the Journal. The Journal has been regu¬ 
larly read even before the election of the Speaker in the original organization of the 
House, and the Chair is not able to perceive any objection against the reading. 

“Mr. Hall said he wished to remark that he considered the present state of things 
very different from that which existed when the House was organized. Under tJie 
rule of the House the Clerk of each Congress held over until his successor ivas elected. If 
the gentleman who read the Journal did so merely at the discretion of the House 
and not as clerk, he (Mr. Hall) had no objection to it. But he understood that the 
gentleman was acting as clerk. 

“The Speaker. The Chair has stated that no person was authorized to discharge 
the duties of clerk. 

“The Journal was then read and approved. 

“Mr. Harris, of Illinois, rose and moved that the House proceed to the election o, 
a Clerk. 

“Mr. Brown, of Mississippi, moved to amend the motion by adding after the word 
‘Clerk’ the words ‘and Doorkeeper.' 

“The Speaker. In the opinion of the Chair, the amendment is not in order. 

“Mr. Brown. Then I offer the following resolution: 

“The resolution was read as follows: 

“ ‘ Resolved, That the order heretofore passed by the House, postponing the elec¬ 
tion of Doorkeeper, be, and the same is hereby, rescinded; and that the House of 
Representatives proceed to the election of Clerk and Doorkeeper.' 

“The resolution having been read: 

“The Speaker. In the opinion of the Chair, no resolution, no business is in order 
until a Clerk shall have been < lected, and the House can take action upon no subject 
whatever until the election of a Clerk—that being necessary to the organization of the 
House. 

“Mr. Brown. I suppose some motion is necessarily in order! 

“The Speaker. No motion is in order except the motion made by the gentleman from 
Illinois (Mr. Harris) that the House proceed to the election of a Clerk. 

“Mr. Kaufman rose to inquire whether the motion of the gentlemen from Illinois 
(Mr. Harris) was debatable; because, if it was so, he had risen for the purpose of 
moving the previous question. 

“The Speaker. The Chair does not think that the motion to go into the election 
of a Clerk is debatable. If it is so, the debate must be confined within very narrow 
limits. But the Chair thinks that the question is not debatable at all. 

“Mr. Kaufman. Then it is unnecessary for me to move the previous question. 

“ Mr. Brown. That I may have the sense of the House on that question, I appeal 
from the decision of the Chair, and I would like to submit a remark. 

“The Speaker. The Chair has ruled that the resolution of the gentleman from 
Mississippi (Mr. Brown) is out of order, upon the ground that the House is not organ¬ 
ized until a Clei'k shall have been elected, and that no business is in order until the Home 


CLAGETT VS. DUBOIS. 799 

shall have been organized by the election of a Cleric. From this decision the gentleman 
from Mississippi appeals. And the question is: 

“ ' Shall the decision of the Chair stand as the judgment of the House ?’ 

“ And the question thereon was taken and decided in the affirmative without a 
division. 

“ So the judgment was affirmed. 

“ The question then recurred and was taken on the motion of the gentleman from 
Illinois (Mr. Harris), that the House do now proceed to the election of a Clerk; and 
it was decided in the affirmative without a division. 

/ ( So the motion was agreed to. And thereupon the House proceeded to the elec¬ 
tion viva voce of a clerk. 

“ (Congressional Globe, vol. 21, part 1,1849-’50, pp. 740,741.) ” 

It results, therefore, that the House of Representatives, from the foundation of the 
Government, has by its action uniformly held that the election and qualification of its 
permanent 'presiding and recording officers were absolutely essential to its organization 
and to authorize it to proceed with legislative business. And in the only instance in 
which there was a vacancy in the office of Clerk, it (upon the question being directly 
raised) formally decided that all legislative and other business must stop until this 
vacancy was filled. 

When we consider that the rules of the House of Representatives, in connection 
with Jefferson’s Manual, constitute the generally, if not universally, accepted parlia¬ 
mentary law governing the State legislatures, the above facts are conclusive to the 
effect, first, that a regularly chosen and qualified permanent cleric is essential to the 
organization of a legislative body; and, secondly, that a temporary designation of a 
speaker and clerk is not an organization of the body, but only the preliminary stages 
in such organization, especially when the body immediately and universally follows 
the so-called temporary organization by the election of its permanent officers, and 
postpones until then all legislative business and the notification to the other house 
that it is organized and ready to proceed with the public business. 

SENATORIAL PRECEDENTS REFERRED TO IN COMMITTEE’S REPORT. 

The committee is equally unfortunate in the statement [p. 682, ante ] that: 

“The Senate has at different times for periods aggregating thirty-two days trans¬ 
acted its ordinary business with the office of Secretary vacant.” 

As this statement is made in the same terms in the brief of Mr. Payne (pp. 17,18), 
the committee doubtless refers to the two cases mentioned in that brief (p. 15), where 
it is alleged that the Senate, in 1814 and again in 1861, decided that the formal elec¬ 
tion of a Secretary was not indispensable to its organization. 

If it were true that in case of a vacancy in the office of Secretary his duties 
were performed by an acting clerk it still would not follow that the election and 
qualification of a Secretary was not essential to the organization of the Senate. 
The Senate is a continuous body. It has never been organized but once—namely, in 
1789. If the Senate had then voted that a Secretary was not essential such vote 
would be a precedent here. It would be as absurd to say that when a continuous 
body has become organized by the election of the necessary officers it becomes dis¬ 
organized and resolved into its original elements by the death of one of those officers 
as it would be to hold that where a newly created county had been organized by the 
appointment of the county officers it ceased to be an organized county upon the 
death of one of them. 

We, however, deny the facts upon which this portion of the committee’s report is 
based. The facts in the case cited in 1814, as shown by the records, are as follows, 
to wit: 

The Secretary having died during the recess prior to the convening of the special 
session held that year, on the assembling of the Senate it was— 

i( Resolved, As the former Secretary of the Senate has departed this life, that the 
Chief Clerk do act as the Secretary thereof until one shall be appointed, 

“And thereupon such clerk was regularly sworn in as the Secretary of the Senate. 
(Senate Journal, 1814, vol. 5, p. 523.)” 

On being so appointed and sworn in the person who therefore had been the Chief 
Clerk became the Secretary of the Senate and acted as such until it pleased the Sen¬ 
ate to elect another, on October 11. The Journal shows that no legislative business 
was transacted by the Senate after convening until the Secretary was sworn in on 
September 19. 

In the case in 1861 there never was a vacancy in the office of Secretary. When 
the Republicans obtained the control of the Senate in the Thirty-seventh Congress 
they removed the Secretary, Sergeant-at-Arms, and Doorkeeper by electing their 
successors under special resolutions passed at different dates. 

The Senate Journal, Thirty-seventh Congress, 1861, p. 1, shows that the Senate 
had a Secretary in office when it convened in special session July 4,1861. The officers 


800 


SENATE ELECTION CASES. 


first removed were the Sergeant-at-Arms and Doorkeeper (pp. 6,7). Their successors 
were elected and sworn in July 5. July 6 an assistant doorkeeper was elected (p. 
20). July 10 a Chaplain was elected (p.25). July 15 a new Secretary was elected 
(p. 41). 

None of the several resolutions to elect the above officers mentioned the fact that 
such elections were for the purpose of removing the then incumbents. But that such 
was the purpose is shown by the remarks of Mr. Hale (who made all of the several 
motions to elect) immediately after the removal of Mr. McNair, Sergeant-at-Arms, as 
follows: 

u As an act of justice and courtesy to Mr. McNair, who is removed without any cause 
affecting his moral character , etc. (Congressional Globe and Appendix, first session 
Thirty-seventh Congress, p. 11.) ” 

It thus appears that from the foundation of the Government the Senate has never 
assumed to transact any legislative business, except where it had a regularly chosen 
and qualified Secretary. 

We have had examined the Journals since 1866 of one-half of the States, and in 
no instance has a case been found, first, where any legislative house has ever con¬ 
sidered itself organized so as to authorize it to transact legislative business until 
the permanent organization was completed by the election in all cases of at least a 
permanent presiding and recording officer; in most cases of a permanent presiding, 
recording, and executive officer, and in very many cases of all the permanent officers 
which it deemed necessary or convenient for the transaction of its business; and, 
secondly, no case where a legislative house has ever notified the other branch of the 
legislature that it was organized when it had a temporary organization only ; or when 
it had a permanent presiding officer and a temporary secretary, or while it was engaged 
(as in the case in Idaho), in the election of its officers. In every case the notices 
have been formally exchanged after the permanent officers have been chosen and 
qualified and not before, and upon such exchange being made the house has, for the 
first time, proceeded to legislative business. 

We are now having prepared a tabulated statement showing the above facts, which 
we hope to have completed before the determination of this case by the Senate so 
that the Senate may have the same before it as an aid to a correct decision. 

When it is considered that in every state of the Union it is now the accepted prac¬ 
tice to compute the second Tuesday from the permanent organization of both houses 
of the legislature, and that it is the universal practice in the States to treat the elec¬ 
tion and qualification of a permanent presiding and recording officer as essential to the 
organization of a legislative house, and that the same rule has from the foundation 
of the Government prevailed in the Senate and House of Representatives, it becomes 
clear that to seat Mr. Dubois the Senate will have to overturn the State and Con¬ 
gressional precedents of more than a hundred years. 

The undersigned are further of the opinion that the present occupant of the seat 
was not duly elected Senator from Idaho, for the reason that, supposing the legisla¬ 
ture had been duly organized on Monday, December 8, yet on the second Tuesday 
thereafter, to wit, on December 16, the two houses did not, as required by law, pro¬ 
ceed to vote separately for a Senator to fill the term beginning March 4, 1891. This 
fact appears by the record of their proceedings on that day. 

We think in this respect the language of the act of Congress is mandatory to the 
extent that at least one house must comply. Had the intention of Congress been to 
include both houses by the use of the words “either house” it is inconceivable to 
suppose a reason why they did not say so. If they had said so it would be scarcely 
possible to avoid the conclusion that they were attempting an absurdity. Unmis¬ 
takably they were striving to remedy the evil, then too common, of a failure of one 
branch of the legislature to cooperate with the other branch, when, on joint ballot, 
the party having the control of the one house was in the minority, and, not being 
able to elect their candidate, were determined to defeat any election. 

In this view of the action of Congress the legislation of July, 1866, was wise and 
timely. Surely they were not attempting to force the election of Senators where 
both houses should determine to hold no election. Surely they did not contemplate 
a remedy for a case where both houses having a majority of jbhe same political faith 
and able to elect their candidate should yet refuse to do so. Such an idea we sub¬ 
mit is not for a moment to be entertained. And where both houses, as in this case, 
failed to take the initial step of a separate vote on the day required, and failed to 
produce their journals as demanded by the act, it is impossible to see what gave 
jurisdiction to the joint assembly. 

The condition precedent not having been performed, all powers and proceedings 
dependent thereon failed, as it seems to us. 

It is true that the two houses did vote separately on Tuesday, the 16th, for Sena¬ 
tors, and it is true that the record shows that Mr. Dubois was voted for, but it is 
respectfully submitted that the record, imperfect as it is, plainly discloses the fact 


CLAGETT VS. DUBOIS. 


801 


that these votes were cast for the election of two Senators to fill the two then exist¬ 
ing vacancies. 

In addition to what is disclosed by the record it is a matter of notoriety that the 
elections gone into on Tuesday (16th) were to fill these existing vacancies simply, 
and it was not until after the failure of two ballots in joint assembly to fill those two 
vacancies that a resolution was suddenly sprung upon the assembly to fill the other 
at the same time. The following is a copy of the said resolution: 

“ Resolved by the joint assembly of the senate and house of representatives of the legis¬ 
lature of the State of Idaho, That we proceed to elect two United States Senators to 
fill existing vacancies; and that after such election we immediately proceed to elect 
one United States Senator to fill the vacancy occurring March 4, 1891.” 

So far as we have been able to ascertain this resolution adopted on the 18th was 
the first attempt or even mention of the election of a Senator for the term beginning 
March 4, 1891. In the case of Hart vs. Gilbert, Forty-first Congress, cited by the 
committee, it is true that no vote was taken in the separate houses for the election 
of a third Senator for the term beginning March 4,1869, but the two houses did take 
separate action in regard to the election of that third Senator by the passage of a 
joint resolution that they would meet in joint assembly on a day named for the pur¬ 
pose of electing such Senator. 

They did not ignore the act of Congress altogether. But whatever may have been 
the conditions which influenced the admission of Gilbert to his seat, we can not 
believe that in the passage of the act Congress intended to say that the two houses 
of the legislature in proceeding to the election of a Senator should ballot separately 
on a given day, but that both as well as either one were at liberty to disobey the law 
if they saw fit. 

Unable therefore for the foregoing reasons to concur in the committee’s report, 
and believing that the alleged election of Fred T. Dubois was not held in compliance 
with law, either as to the time or manner thereof, submit the following: 

Resolved, That Fred T. Dubois is not entitled to retain the seat he now occupies as 
Senator from the State of Idaho for the full term commencing March 4, 1891. 

Resolved, That William H. Clagett is entitled to be admitted to a seat in the Sen¬ 
ate from the State of Idaho for the term commencing March 4, 1891. 

Z. B. VANCE. 

GEORGE GRAY. 


[The Digest of Precedents referred to in the views of the minority is omitted. It 
may be found in Sen. Repts., 1st sess. 52d Cong., No. 148, pt. 2, and also Cong. 
Record* 1st sess. 52d Cong., pp. 1187-1202.] 

PROCEEDINGS IN THE SENATE OF THE UNITED STATES. 


Tuesday, February 10, 1892. 

On motion by Mr. Mitchell, 

The Senate proceeded, etc. [For the debate see Cong. Record, 1st sess. 52d Cong., 
pp. 1202-1209.] 

Wednesday, February 17, 1892. 

On motion by Mr. Mitchell, 

The Senate resumed, etc. [See Record, ib., 1229-1244.] 


Wednesday, February 24, 1892. 

Mr. Stewart submitted the following resolution for consideration; which was 
ordered to be printed: 4 

Resolved, That William H. Clagett, the contestant for the seat in the United States 
Senate now occupied by Hon. Fred. T. Dubois, have leave to occupy a seat on the 
floor of the Senate pending the discussion of the report of the Committee on Priv¬ 
ileges and Elections, and that he have leave to speak to the merits of his right to 
the seat, and on the report of the committee. 

******* 

On motion by Mr. Mitchell, 

The Senate resumed, etc. [See Record, ib., 1384-1401.] 

Thursday, February 25, 1892. 

The President pro tempore laid before the Senate the resolution yesterday submit¬ 
ted by Mr. Stewart, granting William H. Clagett, contestant for a seat in the Sen¬ 
ate from the State of Idaho, leave to speak on his right to the seat; and having been 
amended on motion of Mr. Mitchell, by inserting after the word “speak” the words 
not exceeding two hours, 

On the question to agree to the resolution as amended as follows: 

Resolved That William H. Clagett, the contestant for the seat in the Senate now 
occupied by Hon. Fred T. Dubois, have leave to occupy a seat on the fleor of the 

S. Doc. 11-51 



802 


SENATE ELECTION CASES. 


Senate pending the discussion of the report of the Committee on Privileges .and Elec¬ 
tions, and that he have leave to speak not exceeding two hours, to the merits of his 
rights to the seat, and on the report of the committee, 

It was determined in the affirmative. Yeas 48, nays 1. 

On motion by Mr. Platt, 

The yeas and nays being desired by one-fifth of the Senators present, 

Those who voted in the affirmative are: • 

Messrs. Allen, Allison, Barbour, Bate, Berry, Brice, Call, Carey, Casey, Chandler, 
Chilton, Cockrell, Coke, Cullom, Daniel, Davis, Dawes, Dubois, Felton, Frye, Gal- 
linger, Gorman, Hale, Harris, Hawley, Hiscock, Kyle, Mitchell, Morgan, Morrill, Pad- 
dock, Pasco, Peffer, Perkins, Pettigrew, Proctor, Pyle, Ransom, Sanders, Sherman, 
Squire, Stanford, Stewart, Teller, Vance, Vest, Washburn, Wolcott. 

Mr. Platt voted in the negative. 

So the resolution was agreed to. 

[For the debate on this resolution see Record, ib., 1430-1432.] 

#*##**• 

The Senate resumed, etc. [See Record, ib., 1445-1448.] 

Friday, February 26, 1892. 

The Senate resumed the consideration of the report of the Committee on Privi¬ 
leges and Elections on the contested seat in the Senate from the State of Idaho; and 

Pending debate, 

On motion by Mr. Morgan, 

Ordered, That the limitation as to time allowed the contestant, William H. Clag- 
ett, to speak be withdrawn. 

After further debate. [See Record, ib., 1473-1486.] 

On motion by Mr. Sherman, 

The Senate proceeded to the consideration of executive business. 


The Senate resumed, etc. [See Record, ib., 


On motion by Mr. Mitchell, 

The Senate resumed, etc. [See Record, ib., 


On motion by Mr. Mitchell, 

The Senate resumed, etc. [See Record, ib., 


Monday, February 29,1892. 
1538-1551.] 

Tuesday, March 1, 1892. 
1584-1598.] 

Wednesday, March 2, 1892. 
1622-1636.] 


Thursday, March 3, 1892. 

On motion by Mr. Mitchell, 

The Senate resumed the consideration of the report of the Committee on Privi¬ 
leges and Elections on the contested seat in the Senate from the State of Idaho; and 

The question being on the first resolution reported by the committee, viz: 

Resolved, That Fred T. Dubois is entitled to retain the seat he now holds as Sena¬ 
tor from the State of Idaho for the full term commencing March 4,1891, after debate, 

On motion by Mr. Morgan to amend the resolution by striking out all after the 
word “ resolved,” and in lieu thereof inserting: 

Resolved, That the vote or other proceeding that constitutes a choice of a Senator of the 
United States must be had by the legislature of the State in which such Senator is chosen, 
and until the houses of such legislature have met and organized as legislative bodies, they 
can not choose a Senator of the United States. 

2. The Constitution of the United States requires that the choice of a Senator shall be, 
when made, the act of the legislature of the State, and not the act of the Senate or of Con¬ 
gress. 

3. That in regulating the time and manner of choosing a Senator, a new electoral body, 
which is not the legislature, and is not acting by its authority, can not be substituted so as 
to act in the place and stead of the legislature, and so to deprive the legislature of its power 
to elect a Senator. 


4. That if it i* lawf ul in regulating the time and manner of electing Senators, to trans¬ 
fer the power to choose a Senator from the two houses, in their organized capacity, to a 
number of the members of the two houses, such electoral power is secondary to the right of 
the legislature to choose a Senator, and can only be exercised when the houses of the legis¬ 
lature, or either of them, has made default in considering the subject of choosing such Sena¬ 
tor, or having made an effort, has failed to make, or to proceed to make such choice. 

5. When, as in the case of the claim of Ron. Fred T. Dubois, the members of the legisla¬ 
ture of Idaho who, on the 18th day of December, 1890 , voted for Hon. Fred T. Dubois sat in 


CLAGETT VS. DUBOIS. 


803 


their respective houses on Tuesday, the 16th day of December, 1890, a quorum being present 
in each house, and voted for two Senators fvom Idaho, who were, on subsequent days, chosen 
as such, and failed to take any action upon the question of electing a third Senator to the 
seat no w occupied by Hon. Fred T. Dubois, they can not claim or exert the power to choose 
such Senator in default of action on that subject, which was the result of their own delin¬ 
quency in public duty. 

Mr. Mitchell raised a question of order, viz: That the amendment is simply a 
declaration of principles and decides nothing; that it is offered as a substitute for 
a resolution which relates to a question of the highest privilege, namely, whether 
the sitting member was or was not duly elected a Senator from the State of Idaho 
for the full term commenciug March 4, 1891; and that it neither declares the con¬ 
testant elected nor does it declare there was no election. 

The Vice-President submitted the question of order for the decision of the Senate, 
and 

On the question, Is the amendment in order f 


It was determined in the negative, j .. g® 

On motion of Mr. Mitchell, 

The yeas and nays being desired by one-fifth of the Senators present, 

Those who voted in the affirmative are— 

Messrs. Berry, Cockrell, Coke, George, Gorman, Harris, Hill, Jones of Arkansas, 
Morgan. 

Those who voted in the negative are— 

Messrs. Allen, Allison, Bate, Blodgett, Call, Carey, Carlisle, Casey, Chandler, 
Chilton, Cullom, Daniel, Davis, Dawes, Dolph, Felton, Gallinger, Gibson of Mary¬ 
land, Hansbrough, Hawley, Higgins, Jones of Nevada, Kenna, Kyle, Mitchell, Morrill, 
Paddock, Palmer, Pasco, Peflfer, Perkins, Pettigrew, Platt, Proctor, Pugh, Sanders, 
Sawyer, Sherman, Shoup, Squire, Stanford, Stockbridge, Teller, Turpie, Vest, Vilas, 
Voorhees, Warren, Washburn, White, Wolcott. 

So it was decided that the amendment was not in order. 

On motion by Mr. Vance, to amend the resolution by striking out all after the 
word “Resolved,” and in lieu thereof inserting: 

That Fred T. Dubois is not entitled to retain the seat he now occupies as Senator 
from the State of Idaho for the full term commencing March 4, 1891. 

Resolved, That William H. Clagett is entitled to be admitted to a seat in the Senate 
from the State of Idaho for the term commencing March 4,1891. 


It was determined in the negative, | ^ ay8 . 55 

On motion by Mr. Vance, 

The yeas and nays being desired by one-fifth of the Senators present, 

Those who voted in the affirmative are— 

Messrs. George, Gorman, Harris, Kyle, Morgan, Pasco, Stewart. 

Those who voted in the negative are: 

Messrs. Allen, Allison, Bate, Berry, Call, Carey, Carlisle, Casey, Chandler, Chilton, 
Cockrell, Coke, Colquitt, Cullom, Daniel, Davis, Dawes, Dolph, Felton, Frye, Gal¬ 
linger, Gibson of Maryland, Hansbrough, Hawley, Higgins, Hill, Jones of Nevada, 
Kenna, McPherson, Mitchell, Morrill, Paddock, Palmer, Peflfer, Perkins, Pettigrew, 
Platt, Proctor, Pugh, Sawyer, Sherman, Shoup, Squire, Stanford, Stockbridge, Tel¬ 
ler, Turpie, Vest, Vilas, Voorhees, Walthall, Warren, Washburn, White, Wolcott. 

So the amendment was not agreed to. 

The question recurring on agreeing to the resolution, as follows: 

Resolved, That Fred T. Dubois is entitled to retain the seat he now holds as Sena¬ 
tor from the State of Idaho for the full term commencing March 4, 1891. 


It was determined in the affirmative, 


J Yeas. 
(Nays 


55 

5 


On motion by Mr. Mitchell, 

The yeas and nays being desired by one-fifth of the Senators present, 

Those who voted in the affirmative are— 

Messrs. Allen, Allison, Bate, Berry, Call, Carey, Carlisle, Casey, Chandler, Chilton, 
Cockrell, Coke, Colquitt, Cullom, Davis, Dawes, Dolph, Felton, Frye, Gallinger, Gib¬ 
son of Maryland, Hansbrough, Hawley, HiggiDS, Hill, Jones of Nevada, Kenna, Mc¬ 
Pherson, Mitchell, Morgan, Morrill, Paddock, Palmer, Peflfer, Perkins, Pettigrew, 
Platt, Proctor, Pugh, Sawyer, Sherman, Shoup, Squire, Stanford, Stockbridge, Teller, 
Turpie, Vest, Vilas, Voorhees, Walthall, Warren, Washburn, White, Wolcott. 

Those who voted in the negative are— 

Messrs. George, Harris, Kyle, Pasco, Stewart. 

So the resolution was agreed to. 








804 


SENATE ELECTION CASES. 


On the question to agree to the second resolution reported by the Committee on 
Privileges and Elections, as follows: 

Resolved, That William H. Clagett is not entitled to he admitted to a seat in the 
Senate from the State of Idaho for the term commencing March 4, A. D. 1891. 

It was determined in the affirmative. 

[See Record, ib., 1665-1677.] 

COMPENSATION OF CONTESTANTS. 


Friday. April 1, 1892. 

Mr. Mitchell, from the Committee on Privileges and Elections, reported the follow¬ 
ing resolution; which was referred to the Committee on Appropriations: 

Resolved, That there be allowed and paid to Fred T. Dubois, Senator from the State 
of Idaho, out of any moneys in the Treasury not otherwice appropriated, the sum of 
$2,000, in full compensation for his expenses incurred in connection with the contest 
inaugurated by William H. Clagett, involving his right to a seat in the Senate as 
Senator from the State of Idaho. 

Mr. Mitchell, from the Committee on Privileges and Elections, reported the follow¬ 
ing resolution; which was referred to the Committee on Appropriations: 

Resolved, That there be allowed and paid to William H. Clagett, out of any 
moneys in the Treasury not otherwise appropriated, the sum of $4,000, in full com¬ 
pensation for his time and expenses in prosecuting his claim to a seat in the Senate 
as Senator from the State of Idaho. 


WILKINSON CALL. 


805 


[First session—Fifty-second Congress.1 

WILKINSON CALL, 

Of Florida. 


December 7,1891, R. H. M. Davidson presented the credentials from the governor of Florida described 
m the following case, at the same time a transcript of the proceedings of the two houses of the legis¬ 
lature of Florida in a joint convention, composed of a majority of the members of the two houses, but 
a ma J° rit y °f the members of each, recording what purported to be the election of Wilkinson 
(vail. Mr. Call presented himself on the same day, claiming the right to take the oath by virtue of the 
proceedings of that joint convention. The facts set forth in the transcript were undisputed. The 
matter went over under objection to the next day, when Mr. Call was admitted to take the oath, on 
motion by Mr. Hoar, and the credentials were referred to the Committee on Privileges and Elections. 

The history of the case here given consists of a transcript of the Journal of the Senate in relation 
to it. 


Monday, December 7, 1891. 

The Vice-President laid before the Senate the credentials of Wilkinson Call, being 
a transcript* of the proceedings of the legislature of the State of Florida, in joint 
assembly, certifying to the election of Mr. Call as Senator from that State for the 
term of six years commencing March 4, 1891; which were read. 

Ordered , That they lie on the table. 

Mr. Harris presented the credentials of Robert H. M. Davidson, appointed a Sen¬ 
ator by the governor of the State of Florida to fill a vacancy alleged to exist in the 
term commencing March 4, 1891; which were read. 

Ordered, That they lie on the table. 

On motion by Mr. Hoar, that the oath prescribed by law be administered to Mr. 
Wilkinson Call as Senator from the State of Florida, 

Ordered, That the consideration of the motion be postponed to to-morrow. 


Tuesday, December 8,1891. 

On motion by Mr. H oar, 

The Senate proceeded to consider the motion yesterday submitted by him, thatthe 
oath of office be administered to Wilkinson Call as a Senator from the State of 
Florida; and 

The motion was agreed to. 

Whereupon 

Mr. Call appeared, and the oath prescribed by law having been administered to 
him by the Vice-President, he took his seat in the Senate. 

On motion by Mr. Hoar, 

Ordered, That the credentials of Wilkinson Call and also the credentials of R. H. 
M. Davidson, claiming a seat in the Senate by appointment of the governor of 
Florida, be referred to the Committee on Privileges and Elections. 


* The transcript of the proceedings of the legislature of Florida in joint assembly, 
resulting in the election of Mr. Call, is printed in the Record, 1st sess. 52d Cong., 
p. 2. The credentials of Mr. Davidson may be found in the same place. 




806 


SENATE ELECTION CASES 


[First session—Fifty-second Congress.] 

E. H M. DAVIDSON y. WILKINSON GALL, 

Of Florida. 

In April, 1891, the legislature of the State of Florida met and was duly organized at the time and 
place appointed by law. On the second Tuesday after such organization, being the 21st day of April, 
1891, the two chambers of which it was composed held a session and voted, each separately, for the 
election of a United States Senator. No one was chosen at this election, and it was so declared and 
entered upon the journals of the respective houses. On the foliowing day, being Wednesday, the 22d 
of April aforesaid, the legislature met at noon in joint assembly, and one vote was taken for Senator, 
which resulted in no election. Amd on every succeeding day, except Sundays, until the 26th day of 
May, 1891, they met and took one vote in the same manner, with the same result. On the 26th day of 
May, 1891, the joint assembly met as before, and upon a vote being taken for United States Senator it 
was found that Wilkinson Call had received a majority of the votes of those present and voting, the 
same being also a majority of all the members elected to both houses of the legislature. Thereupon 
Mr. Call was declared duly elected. 

The validity of this election was questioned upon the ground that there was not a quorum of the 
State senate present and voting at the time it occurred. This objection was based upon the proposi¬ 
tion that the joint convention or assembly in such cases is composed of the two houses as such, and 
that therefore a quorum of each must attend to properly form such convention. 

The governor being of the opinion that this position was sound appointed Robert EL M. Davidson 
to be Senator from the State of Florida until the next meeting of the legislature, and issued credentials 
in the usual form under date of September 22, 1891, to which the secretary of State affixed the great 
seal of the State in obedience to a peremptory writ of mandamus issued by the supreme court of 
Florida, November 17, 1891. The credentials of both claimants were presented to the Senate Decem¬ 
ber 7, 1891. On the following day Mr. Call was sworn and his credentials, as well as those of Mr. 
Davidson, were referred to the Committee on Privileges and Elections. The committee reported, Feb¬ 
ruary 1, 1892, finding the facts set forth in the preceding paragraph, and holding that “This act [of 
July 25, 1866] provides that ‘the members of the two houses shall convene in joint assembly,’ etc. 
The joint assembly is thus composed not of the two houses, but of the members thereof. The joint 
assembly is not a junction or union of the two houses as such; it is not a merger of the two houses 
into one of either, but it is a body distinct and separate from either as such, and has by the words of 
the enactment a quorum of its own prescribed and defined, to wit, ‘amajority of all the members 
elected to both houses,’without any reference to a quorum either of the senate or the house. * * * 
The term legislature in this clause is not to be construed technically with reference to the separate 
chambers which may exist within it, but as designating the collective number of all the persons com¬ 
posing it,” and that therefore Mr. Call was duly elected. 

February 4, 1892, the Senate considered the report of the committee and declared Mr. Call “lawfully 
entitled to a seat in the Senate.” 

The history of the case here given consists of a transcript of the Journal of the Senate relating to 
it with the report of the committee, No. 106, Parts 1 and 2, 1st sess., 52d Cong. 

The decision of the supreme court of Florida was rendered in the case of The State of Florida ex rel. 
Francis P. Fleming, governor, v. John L. Crawford, secretary of State, 28 Fla. 441. 

[For the first proceedings in this case see the case of Wilkinson Call, supra , p. 709.] 

Monday, January 25, 1892. 

Mr. Turpie, from the Committee on Privileges and Elections, to whom were referred 
the papers, evidence, and certificates in the case of Wilkinson Call, and of the con¬ 
testant R. H. M. Davidson, respecting the question of the title to a seat in the 
Senate, submitted a report (No. 106) with the following resolution: 

Resolved, That the Hon. Wilkinson Call, of Florida, was duly elected by the legis¬ 
lature of the said State on the 26th day of May, 1891, a Senator of the United States 
from the said State for the term of six years commencing on the 4th day of March 
1891, and that he is lawfully entitled to a seat in the Senate. 

[The resolution may also be found in the Record, 1st sess. 52d Cong., p. 512. There 
was no discussion at this time.] 

REPORT OF THE COMMITTEE. 

[The committee consisted of Messrs. Teller (chairman), Hoar, Mitchell, Chandler, 
Higgins, Vance, Pugh, Gray, Turpie.] 

In the Senate of the United States. 

February 1, 1892.—Ordered to be printed. 

Mr. Turpie, from the Committee on Privileges and Elections, submitted the fol¬ 
lowing report: 

The Committee on Privileges and Elections, to whom were referred the papers in 
the case of R. H. M. Davidson, contestor, against Wilkinson Call, contestee, concern- 


DAVIDSON VS. CALL. 807 

ing the right to a seat in this body for the State of Florida, hare had the same 
under consideration, and have instructed me to make the following report: 

In April, 1891, the legislature of the State of Florida met and was duly organized 
at the time and place appointed by law. On the second Tuesday after such organ¬ 
ization, being the 21st day of April, 1891, the two chambers of which it was com¬ 
posed held a session and voted, each separately, for the election of a United States 
Senator. No one was chosen at this election, and it was so declared and entered 
upon the journals of the respective houses. On the following day, being Wednesday, 
the 22d of April aforesaid, the legislature met at noon in joint assembly, and one 
vote was taken for Senator, which resulted in no election. And on every succeeding 
day, except Sundays, until the 26th day of May, 1891, they met and took one vote in 
the same manner, with the same result. On'the 26th day of May, 1891, the joint 
assembly met as before, and upon a vote being taken for United States Senator it 
was found that Wilkinson Call had received a majority of the votes of those present 
and voting, the same being also a majority of all the members elected to both houses 
of the legislature. Thereupon Mr. Call was declared duly elected. 

The validity of this election is questioned upon the ground that there was not a 
quorum of the State senate present and voting at the time it occurred. This objection 
is based upon the position that the joint convention or assembly in such cases is 
composed of the two houses as such, and that therefore a quorum of each must at¬ 
tend to properly form such convention. The law of the case is found in the act of 
Congress of July 25, 1866, being chapter 1, title 2, of the Revised Statutes, concern¬ 
ing the election of United States Senators, an act adopted by the constitution of the 
State of Florida in respect to such elections, and so in a double sense to be regarded 
as the law of this case. But if the constitution of Florida had provided in express 
terms that a quorum of both houses was necessary to constitute a joint assembly 
this would not be the law unless the same is required by said act of 1866. The 
Federal law is paramount. 

This act provides that “the members of the two houses shall convene in joint 
assembly,” etc. The joint assembly is thus composed not of the two houses, but of 
the members thereof. The joint assembly is not a junction or union of the two 
houses as such; it is not a merger of the two houses into one of either; but it is a 
body distinct and separate from either as such, and has by the words of the enact¬ 
ment a quorum of its own prescribed and defined, to wit, “a majority of all the mem¬ 
bers elected to both houses,” without any reference to a quorum either of the senate 
or the house. The joint assembly is authorized and created by the act of Congress, 
and when the circumstances have transpired which make it necessary to convene the 
same, all the members of both houses, without any reference to the further action of 
either house as such, are entitled to seats in it, and may join together and cooperate 
as members in the choice of a Senator until one is elected. It has always been con¬ 
ceded that the object of the statute of 1866 was to prevent the inaction or neglect 
of either house—that is, of a majority or quorum of either house—from delaying or 
defeating the will and voice of the majority of the whole legislative body. 

The two houses, as such, are given their day in court—are given, under a previous 
provision of the act, an opportunity to make the choice of Senator. After they have 
failed to make a choice, to hold that a quorum of each is necessary to make a joint 
assembly is to give them a chance to repeat this failure—it is to vitiate the very pur¬ 
pose of the enactment and to reinstate the evil which it was designed to remedy. 
It was not the intention of the makers of the law of 1886 to place or leave it in the 
power of any minority of the whole number, or of a quorum in either house, as such, 
to prevent or postpone the representation of the State in this body. For this reason 
the law operates, so far as it relates to the joint meeting, upon members as individuals, 
not as component parts of the respective bodies to which they may belong; and for 
this reason also a majority of the whole number of members is constituted the quorum 
of the joint assembly; that is, the number requisite to transact its business in the 
senatorial election. If the minority of the members, absent at the time of Mr. Call's 
election, had all been present and voted, this would not have changed the result. It 
seems unreasonable, under the provisions of this statute or any other, to give a 
greater effect to the absence and nonaction of this minority than to their presence 
and action. 

It seems yet more unreasonable to hold that a quorum of the senate, in Florida 17 
members, should defeat the action of thrice their number under a statute designed 
expressly to provide for the permanent and, as far as practical, the continuous rep¬ 
resentation of the States in the Senate of the United States. 

It is implied in the argument made against the right of the contestee that this 
construction of the act is in conflict with the section of the Constitution which pro¬ 
vides that Senators shall be chosen by the legislature—that this is composed of two 
houses—and that a quorum of each is practically and legally the house; that with¬ 
out a quorm there is no house. We grant that the quorum is in legal effect the house. 
But the term legislature in this clause is not to be construed technically with refer¬ 
ence to the separate chambers which may exist within it, but as designating the col- 


808 


SENATE ELECTION CASES. 


tective number of all the persons composing it. This is clear from the fact that one 
of the States at least, Pennsylvania, had at the time of the adoption of the Consti¬ 
tution only one legislative chamber. Besides this the word legislature is commonly 
used in this way—as the word magistracy is used and indeed is defined to mean 
“the body of magistrates” in a State or country. Legislature in this section means 
the body of legislators of the State, without reference to the different chambers, as 
such, in which they may serve. The joint assembly created by the act of 1866 is 
thus in the fullest sense of the term the legislature of the State, its whole number 
being equal to that of all the persons elected to either branch of the legislature and 
its quorum being a majority of that number. 

In these views the recent decisions of the Senate agree. 

The legislature of Florida is composed of a house of 68 and a senate of 32 members, 
in all 100. Fifty-two members attended the joint assembly of the 26th of May afore¬ 
said; were present and voted. Mr. Call received of this number the votes of 51. 
So that the joint assembly contained and the person chosen received the votes of a 
majority of all the members elected to both houses. 

We are therefore of the opinion that Mr. Call was duly elected. 

The appointment by the governor thereafter of Mr. Davidson, under the erroneous 
supposition that a vacancy existed in the office of United States Senator, was an act 
of mere irrelevancy which it is not necessary further to notice. 


Thursday, February 4, 1892. 

On motion by Mr. Turpie, 

The Senate proceeded to consider the report of the Committee on Privileges and 
Elections on the question of the title to a seat in the Senate from the State of 
Florida; and, 

After debate, 

The resolution reported by the committee was agreed to, as follows: 

Resolved, That the Hon. Wilkinson Call, of Florida, was duly elected by the legis¬ 
lature of said State on the 26th day of May, 1891, a Senator of the United States 
from said State for the term of six years, commencing on the 4th day of March, 1891, 
and that he is lawfully entitled to a seat in the Senate. 

[The debate may be found, Cong. Record, 1st sess. 52d Cong., pp. 833-846.] 


EXPENSES OF CONTESTANTS. 

Wednesday, February 10, 1892. 

Mr. Vance submitted the following resolution; which was referred to the Commit¬ 
tee on Privileges and Elections: 

Resolved, That there be paid out of the contingent fund of the Senate the sum of 
$1,258 to the Hon. R. H. M. Davidson for expenses in prosecuting his claim to a seat 
in the Senate under the appointment of the governor of Florida. 

Thursday, March 31, 1892. 

Mr. Chandler, from the Committee on Privileges and Elections, to whom was referred 
the resolution submitted by Mr. Vance February 10, 1892, to pay R. H. M. Davidson 
for expenses in prosecuting his claim to a seat in the Senate under the appointment 
of the governor of Florida, reported the following amendment, intended to be pro¬ 
posed in the general deficiency bill; which was referred to the Committee on Appro¬ 
priations : 

To enable the Secretary of the Senate to pay R. H. M. Davidson the expenses in¬ 
curred by him in prosecuting his claim to a seat in the Senate under the appoint¬ 
ment of the governor of Florida, $1,250. 

[See Cong. Record, 1st sess. 52d Cong., p. 2754.] 


WILLIAM N. ROACH, SENATOR FROM NORTH DAKOTA. 809 


[Special session of the Senate, March 4, 1893.] 


WILLIAM N. ROACH, Senator from North Dakota. 


On the 28th day of March, 1893, Mr. Hoar submitted a resolution providing for an investigation of 
certain allegations charging William N. Roach, a Senator from the State of North Dakota, with the 
offense of criminal embezzlement. On the 10th day of April, 1893, a substitute for this resolution was 
introduced by Mr. Hoar, and on the 14th day of April, 1893, a substitute for the resolutions then 
pending in said matter was introduced by Mr. Gorman. The resolution and the substitutes were the 
subject of debate in the Senate, but no action was had or taken thereon. 

It appears from the debates that the case presented the question as to the right of the Senate to 
take cognizance of an accusation against a Senator of an offense committed before his election to the 
Senate. 

The history of the case here given consists of a statement of the proceedings in the Senate in rela¬ 
tion thereto, as published in the Congressional Record, with a reference to the debate as contained in 
the Congressional Record, and extracts from remarks by Mr. Chandler in such debate, with the 
statement made by Mr. Roach in the Senate in reference to the matters referred to in such resolution 
and substitutes. 


PROCEEDINGS IN THE SENATE. 


Tuesday, March 28, 1893. 

Mr. Hoar submitted the following resolution, which was read: 

‘ ‘ Resolved, That the Committee on Privileges and Elections be directed to investi¬ 
gate the allegations recently extensively made in the public press, charging William 
N. Roach, a Senator from the State of North Dakota, with the offense of criminal 
embezzlement, to report the facts of the transactions referred to, and further to report 
what is the duty of the Senate in regard thereto. For that purpose the committee 
shall have authority to send for persons and papers, to administer oaths, to employ a 
stenographer, and to act through a subcommittee. ’ ’ 

The resolution was ordered to lie over and be printed. 

(Cong. Rec., vol. 25, p. 37.) 


Monday, April 10, 1893. 

Mr. Hoar submitted the following resolution, which was read: 

“ Resolved, That the Committee on Privileges and Elections be directed to examine 
the allegations recently made in the public press, charging William N. Roach, a Sen¬ 
ator from the State of North Dakota, with certain criminal offenses committed while 
cashier or officer of a bank in the city of Washington, and to ascertain the facts and 
circumstances so far as to enable the committee to determine and report what are the 
duty and power of the Senate in regard thereto; and for that purpose the committee 
shall have authority to send for persons and papers, to employ a stenographer, to sit 
during the recess of the Senate, and to act through a subcommittee; and its expenses 
shall be paid from the contingent fund of the Senate.” 

Mr. Hoar. This resolution is proposed as a substitute for one introduced by me 
the other day, and has been agreed upon after a conference between several Senators 
on both sides of the Chamber as the proper form. I will let it lie over, however, one 
day in order that it may be seen by Senators. 

The resolution was ordered to lie over and be printed. 

(Cong. Rec., vol. 25, pp. Ill, 112.) 

Friday, April 14, 1893. 

Mr. Roach. Mr. President, I rise to a question of personal privilege. 

My colleague, the senior Senator from North Dakota [Mr. Hansbrough], is reported 
to have said, referring to the charges alleged in the resolution of the Senator from 
Massachusetts, that I told him I desired to offer a resolution for investigation, or that 
I thought it was the best thing to do. I rise now to confirm that statement, and to 
say further that as far as that investigation is concerned I desire it and am perfectly 
willing that it shall be proceeded with. 


810 


SENATE ELECTION CASES. 


After the conversation referred to by my colleague, I yielded to the advice of 
friends in the Senate and did not act upon my own impulses in the matter. Hence 
I did not offer the resolution that I desired and intended to offer. New to this body 
and entirely unfamiliar with the customs and usages of the Senate, I naturally 
attached weight to the advice and opinion of those older in the service and versed in 
the practices and precedents of the Senate. I was given to understand that, however 
much I might desire or demand an investigation, it was not the practice of the Senate 
to take jurisdiction of alleged acts or conduct prior to the election of a Senator and 
having no connection with the legality thereof. If this practice is to be now changed, 
I have no protest to make; on the contrary, I repeat I am willing and desirous that 
the investigation be made. I seek no shelter and shrink from no scrutiny into my 
public and private character. 

I desire to say at this time that I am perfectly willing and desirous that this inves¬ 
tigation shall be proceeded with. That has been my position from the beginning. 
I stand here now to say that much and to repeat it. 

With reference to my rising at this time, I will state that I have been blamed for 
not speaking. I have also been criticised because it is alleged that I did say some¬ 
thing. In justice to my colleague and myself with reference to what has been said 
in the newspapers (because these things so far are proceeding from newspaper allega¬ 
tions) I thought it my duty to say this much at this time. 

(Cong. Rec., vol. 25, p. 137.) 

After further discussion Mr. Gorman offered a substitute for the resolution offered 
by Mr. Hoar; which substitute offered by Mr. Gorman was read, as follows: 

‘ ‘ Resolved, That the Committee on Privileges and Elections be directed to inquire 
into and consider the question whether the Senate has authority or jurisdiction to 
investigate charges made against a Senator as to conduct or offenses occurring or 
committed prior to his election, not relating to his duty as Senator or affecting the 
integrity of his election.” 

(Cong. Rec., vol. 25, pp. 137, 138.) 

The resolution and the substitute therefor introduced by Mr. Hoar and the sub¬ 
stitute introduced by Mr. Gorman were the subject of debate in the Senate April 14, 
1893, and April 15, 1893 (Cong. Rec., vol. 25, pp. 137, 138, 140-154, 155-159, 160- 
164), but no vote was taken thereon. 

[Extracts from remarks of Mr. Chandler in support of the substitute offered by Mr. Hoar for the 

resolution directing an inquiry into the charges against Senator Roach. Found in the Con¬ 
gressional Record, vol. 25, pp. 148,149.] 

******* 

“Mr. President, I know I have taken too much of the time of the Senate in bring¬ 
ing the precedents in England and in this country to the notice of Senators. I 
believe that upon all these precedents that it can not be fairly contended that it is a 
principle of American constitutional law that under no circumstances shall there be 
an investigation into the conduct of members committed before their election to 
Congress. 

******* 

“The facts in relation to Mr. Roach are to be found, in the first place, in the New 
York Recorder of March 14, 1893. The same facts are stated in the Philadelphia 
Press of March 15, 1893. The facts narrated in those two newspapers are taken 
from an interview in the Evening Star of August 15, 1879, with Mr. J. A. J. Cress- 
well, then president of the Citizens’ National Bank, of Washington, D. C. There is 
an interview in the Recorder with Mr. Jacob Tome, an owner of two-thirds of the 
stock in the bank, which corroborates the statements made in that paper. 

“There is also contained in the Recorder an interview with Mr. Thomas C. 
Pearsall, who succeeded Mr. Roach as cashier of the Citizens’ National Bank, and he 
confirms the narrative. 

“Moreover, the facts are to be found upon the records of the Government in the 
office of the Comptroller of the Currency, in the reports made by the Citizens’ 
National Bank to that officer. Further, there has been published in the newspaper 
interviews with the Senator from North Dakota [Mr. Roach]. There is an inter¬ 
view in the Recorder, and also one in the New York Sun of March 21, 1893. In the 
Recorder interview the Senator from North Dakota first said he had nothing to say; 
later he said he remembered the Creswell interview in the Star, but had forgotten 
the details; that if he had had any controversy with the bank it had all been settled. 
Then the following questions and answers appear: 

“ ‘It is stated that the larger part of the money taken was returned to the bank? 

“ ‘ Yes, I believe it was. 

“ ‘ Has it all been returned? 


WILLIAM N. ROACH, SENATOR FROM NORTH DAKOTA. 811 


“ ‘I think so, but it was a long time ago and I can not say positively. 

“‘No indictment was ever brought? 

‘“No; there was never any attempt to prosecute.’ 

“The New York World of March 15, 1893, has a half-column interview with the 
Senator from North Dakota, where he says nothing pertinent to the issue presented 
by the resolution of the Senator from Massachusetts, except that he has not been a 
fugitive from justice and that the printed story is ‘full of absurdities and extrava¬ 
gances.’ There is no other denial. 

“The New York Sun is, I suppose, recognized as a Democratic paper, friendly to 
the Democratic party, to the majority upon this floor, and to the present Adminis¬ 
tration, and in an editorial in this Democratic paper, the Sun, of Tuesday, March 21, 
1893, all the facts in reference to the Senator from North Dakota are reiterated, and 
the question whether or not he ought to hold his seat in the Senate is discussed. 
******* 

“I will take occasion to read from the New York Sun, not the full statement 
which is there contained, because I do not wish and I have not wished to antici¬ 
pate the facts, but this portion of the Sun’s statement: 

“ ‘In October, 1879, the report of the Comptroller of the Currency presented the 
sworn statement of the officers of the Citizens’ National Bank containing this item: 
“Defalcation of late cashier, $18,483.54.”’ 

******* 

“I ask again, are not these facts sufficient to require an investigation by the Senate 
if they are to be taken as true? Here is a grave breach of trust alleged; here is a 
large embezzlement alleged upon the part of an officer of a national bank. 

* * * * * * * 

“ I do not believe that even my State’s rights friend from Texas [Mr. Mills], who I 
see is honoring me with his attention, and the Senator from South Carolina [Mr. But¬ 
ler] , who have hitherto announced their belief in the doctrine that it is beyond the 
power of the Senate of the United States to inquire into the acts of Senators before they 
are members, will be willing, when they come to consider the subject, to affirm it as a 
proposition of constitutional law that there can be no investigation, under any cir¬ 
cumstances, into the acts of a Senator committed before he was a Senator. 

* * * * * * * 

“The elevated character of the Senate forbids the announcement of any such 
fatal doctrine as this. A few short weeks ago the Vice-President, upon taking the 
chair as presiding officer of the Senate, uttered a high tribute to the Senators before 
him. With his advent to the position came also a great political change, but I do 
not believe that the majority which now prevails here will beany less solicitous than 
the minority to maintain the reputation and character of the Senate. 

“We shall differ on questions of finance and tariff and on measures of public 
administration; not, I trust, on questions which are to determine the estimation in 
which the Senate is to be held by the wise and the good men of all countries. But to 
refuse even to investigate the facts alleged against the Senator from North Dakota 
will turn into a sarcasm and a mockery the eulogium of the Vice-President when he 
came to preside over the Senate and declared it to be ‘the most august deliberative 
assembly known to man.’ ” 


• 812 


SENATE ELECTION CASES 


[Special session of the Senate, March 4, 1893; first session Fifty-third Congress and 

third session Fifty-third Congress.] 

JOSEPH W. ADY y. JOHN MARTIN, of Kansas. 


The credentials of John Martin as a Senator from the State of Kansas being in due form he was 
admitted to a seat in the Senate at the beginning of the special session of the Senate, March 4,1893. 
Subsequently, a memorial signed by seventy-seven members of the Kansas legislature was presented 
in the Senate relating to the election of a United States Senator from the State of Kansas to fill the 
vacancy caused by the death of Hon. Preston B. Plumb. The memorial set out the facts from which 
it was claimed that the proceedings in the election of Mr. Martin to fill the vacancy aforesaid were 
irregular and illegal, and also set forth the subsequent election of Joseph W. Ady in a legal and 
formal manner. The grounds on which it was claimed that the proceedings of the legislature of 
Kansas in the election of Mr. Martin were illegal, are fully set forth in the remarks of Mr. Chandler 
in the debate on the case in the Senate as hereinafter set forth. 

A resolution authorizing the Committee on Privileges and Elections to investigate the right of 
Mr. Ady to a seat in the Senate was introduced in the Senate and agreed to. Subsequently a reso¬ 
lution was introduced declaring that Mr. Martin was not entitled to a seat in the Senate as a Senator 
from the State of Kansas. This resolution was referred to the Committee on Privileges and Elections. 
Still another resolution of the same import as the one last referred to was afterwards introduced in 
the Senate and debated, but the Committee on Privileges and Elections made no report on the sub¬ 
ject, nor was the matter brought to a vote in the Senate. 

The history of the case here given consists of a statement of the proceedings in the Senate relating 
to it as published in the Congressional Record, with a reference to the debate thereon as contained in 
the Congressional Record, and extracts from remarks by Mr. Chandler in the course of such debate. 


PROCEEDINGS IN THE SENATE. 


Saturday, March 4, 1893. 

Mr. Peffer presented the credentials of John Martin, recently elected a Senator 
from the State of Kansas for the term ending March 3, 1895. 

The credentials were read and ordered to be filed, as follows: 

‘ ‘ State of Kansas, Executive Department. 

“ This is to certify that on the 25th day of January, in the year of our Lord 1893, 
John Martin was duly elected by the legislature of Kansas, a Senator to represent 
said State in the Senate of the United States for the unexpired term of six years, com¬ 
mencing the 4th day of March, A. D. 1889, and ending March 4, 1895, and to fill the 
vacancy in said term happening by the decease of the Hon. Preston B. Plumb. 

“ Witness his excellency, our governor, and our seal hereunto affixed, at Topeka, 
this 25th day of January, in the year of our Lord 1893, and of the Independence of 
the United States the one hundred and seventeenth. 

“ [seal.] L. D. Lewelling. 

“ By the governor: 

“P, S. Osborne, Secretary of State.” 


Mr. Hoar. The credentials of Mr. Martin seem to be in due form and to entitle 
him prirna facie to be admitted to a seat in the Senate. If there be any question as 
to his title upon the merits, the Senate can deal with it afterwards. I ask that the 
oath be administered to Mr. Martin. 

Mr. Martin was escorted to the Vice-President’s desk by Mr. Peffer, and the oath 
prescribed by law having been administered to him, he took his seat in the Senate. 

(Cong. Rec., Vol. 25, p. 2.) 


Wednesday, April 12 , 1893. 

Mr. Vance. I am directed by the Committee on Privileges and Elections to report 
a resolution, and to ask for its immediate consideration. 

The Secretary read the resolution, as follows: 

“ Resolved , That the Committee on Privileges and Elections, or any subcommittee 
thereof, be authorized to investigate the right of Mr. Joseph W. Ady, who claims a 
seat in this body as Senator from Kansas; and, if in their judgment it be necessary 


813 


JOSEPH W. ADY VS. JOHN MAETIN, OF KANSAS. 

to employ a stenographer, send for persons and papers, to administer oaths, and to 
sit during the recess of the Senate.” 

The resolution was ordered to be referred to the Committee to Audit and Control 
the Contingent Expenses of the Senate. 

(Cong. Kec., Yol. 25, p. 133.) 


Thursday, April 18, 1893. 

Mr. Sherman presented a memorial of seventy-seven members of the Kansas legis¬ 
lature, relating to the election of a United States Senator from Kansas to fill the 
vacancy caused by the death of Senator Preston B. Plumb. 

The memorial was ordered to be referred to the Committee on Privileges and 
Elections and to be printed as a document. 

(Cong. Rec., Yol. 25, p. 135.) 


Friday, April 14, 1893. 

The Vice-President laid before the Senate the resolution introduced by Mr. Vance 
April 12, 1893, in reg&rd to the investigation of the right of Mr. Joseph W. Ady to 
a seat in the Senate as a Senator from the State of Kansas. 

The resolution was reported from the Committee to Audit and Control the Con¬ 
tingent Expenses of the Senate with an amendment, to add: 

The expense thereof to be paid from the contingent fund of the Senate. 

The amendment was agreed to and the resolution as amended was agreed to. 
(Cong. Rec., Yol. 25, p. 139.) 


Monday, August 21, 1893. 

Mr. Chandler submitted the following resolution; which was referred to the Com¬ 
mittee on Privileges and Elections: 

“ Resolved, That there was no lawful election of a United States Senator from Kansas 
by the joint assembly which met on January 25, 1893; and that John Martin is not 
entitled to a seat as Senator from the State of Kansas.” 

(Cong. Rec., Yol. 25, p. 535.) 


Thursday, January 31, 1895. 

Mr. Chandler offered the following resolution as a privileged resolution: 
“Whereas, at the time of the alleged election of John Martin as Senator from 
Kansas the legislature of the State had not been duly organized; and 

“Whereas, at the joint convention which made such election no majority of the 
legally elected members of the legislature voted for Mr. Martin: Therefore, 

“ Resolved, That there was no lawful election of a United States Senator from Kan¬ 
sas by the joint assembly which met on January 25, 1893, and that John Martin is 
not entitled to a seat as a Senator from the State of Kansas. ’ ’ 

The Vice-President ruled that said resolution was not a privileged resolution under 
the circumstances connected with its presentation; and on appeal the decision of the 
chair was sustained by a vote of 40 yeas to 6 nays. 

(Cong. Rec., Yol. 27, pp. 1566, 1567.) 


Wednesday, February 6, 1895. 

The Vice-President laid before the Senate the resolution offered by Mr. Chandler 
January 31, 1895; which resolution was read and the question of its status was dis¬ 
cussed, and thereupon the resolution was withdrawn. Subsequently, and on the 
same day, Mr. Chandler offered the same resolution; which was read and ordered 
to go over and be printed. 

(Cong. Rec., Yol. 27, p. 1816.) 

Thursday, February 28, 1895. 

The resolution submittted by Mr. Chandler February 6, 1895, was read and 
debated, but no vote was taken thereon. 

(Cong. Rec., Vol. 27, pp. 2912-2918, 2920, 2922-2925.) 

[Extracts from remarks by Mr. Chandler in support of the resolution submitted by him that Mr. 

Martin was not entitled to a seat as a Senator from the State of Kansas. Found in the proceedings 

of February 28,1895, in the Congressional Record, vol. 27, pp. 2916, 2917.J 

“Mr. President: 

* * * * * * * 

“It is impossible successfully to contend that this case has been fairly and justly 
dealt with by the Senate and its Committee on Privileges and Elections. The pro¬ 
longed sickness and the death of Senator Vance may have been an excuse for some 


814 


SENATE ELECTION CASES. 


delay, but on that very account extraordinary diligence should have been afterwards 
used to hear and determine the important question of the right of a Senator to a seat 
in this Chamber. 

“That the refusal was decided upon the face of facts which, if they had been con¬ 
fronted, would have required the ejectment from his seat of the sitting member [Mr. 
Martin], it is the purpose of my additional remarks to show. The facts are not 
complicated. 

“A Kansas legislature was chosen November 8, 1892—40 senators, 125 representa¬ 
tives, 63 being a majority in the house and 83 a majority of the whole 165. 

“On Tuesday, January 10, 1893, the members assembled at Topeka. The senate 
was duly organized as one body without controversy; but two houses were organ¬ 
ized, each claiming to be lawful. 

“The Douglass house had 64 members holding certificates from the secretary of 
State. Three other members, holding certificates, afterwards appeared, making 67 
members. 

“The Dunsmore house had 58 members holding certificates and 10 persons with¬ 
out certificates. These 10 claimed the places of 10 certified members who were in 
the Douglass house, asserting that of the latter 4 were ineligible because they were 
postmasters when elected, and that the rest had not been legally elected. 

“ The senate recognized the Dunsmore house and refused to recognize the Douglass 
house, and so did the governor of the State. 

“ On February 25,1893, the Kansas supreme court decided that the Douglass house 
was the lawful body, and on February 28 the members of the Dunsmore house joined 
the lawful body and the Dunsmore house ceased to exist, none of the 10 unlawful 
members of that house either being admitted or claiming seats in the lawful body at 
any time. 

“On Tuesday, January 24, 1893, the senate voted for United States Senator, no 
person receiving a majority. The Douglass and Dunsmore houses each voted for 
United States Senator, Joseph W. Ady receiving a majority in the first and John 
Martin receiving a majority in the second body. 

“On Wednesday, January 25, there was a joint assembly, Lieutenant-Governor 
Daniels presiding. The senate roll was called; 15 senators did not vote; 24 voted for 
John Martin and 1 for M. W. Cobun. 

“The lieutenant-governor then directed B. C. Rich, clerk of the Dunsmore house, 
to call the roll. Fifty-six members of the Dunsmore house w r ho had held certificates 
from the secretary of state voted—51 for John Martin, 3 for Cobun, 1 for Mr. Close, 
1 for Mr. Snyder, 1 was absent, and 1 did not vote, making the 58. 

“ Ten members of the Dunsmore house who did not have certificates from the 
secretary of state voted—9 for Martin and 1 for Hanna. 

“After the call thus made had been completed 2 members of the Douglass house, 
Wilson and Rosenthal, asked to vote; were allowed to do so and voted for Martin. 

“The vote then stood: Martin, 86; Cobun, 4; Close, 1; Snyder, 1; Hanna, 1, 
making 93. 

“ Before the result of the vote was announced Senator Lucien Baker arose, and in 
behalf of 15 senators and 65 representatives asked the right to vote. The lieutenant- 
governor refused to allow them to vote, declared the result to be as above stated, 
and that John Martin was elected, and then he left the chair. 

“ Mr. Hale. Let me ask the Senator a question. I have been following the Sen¬ 
ator’s remarks. Does he mean to say that in the joint convention, where there were 
rival bodies, two houses of representatives, both present, that the presiding officer, 
after the roll call of one house had been completed, in order to get votes enough to 
make a quorum, allowed two members of the other house, which he had not recog¬ 
nized, to vote, and that then after doing that, when other members of that house 
requested the privilege of voting, he excluded them? 

“Mr. Chandler. The Senator correctly understands the case. That is exactly 
what took place, as the language I have read very clearly indicates. 

“ Mr. Hale. Is that an undisputed fact; and if so, what followed upon that? 

‘ Mr. Chandler. I will show the Senator if he will listen a moment. The fact is 
undisputed that 24 senators voted for Martin; 1 for Cobun; that the roll was then 
called, and only members of the Dunsmore house voted. I again read: 

“After the roll call thus made had been completed two members of the Douglass 
house, Wilson and Rosenthal, asked to vote; were allowed to do so, and voted for 
Martin. 

“ The Senator is correct in the suggestion that it took these two votes to make in 
joint assembly up to that time 83, being a majority of the whole legislature. I 
proceed: 

“The excluded senators and members continued in session, elected George L. Doug¬ 
lass presiding officer, and proceeded to cast their votes as follows 

“Joseph W. Ady, 77; present and not voting, 3. 


/ 


JOSEPH W. ADY YS. JOHN MARTIN, OF KANSAS. 815 


A n o ^ ereu P on Mr. Douglass declared that there had been no election of United 
States Senator, and the assembly adjourned. 

The total votes cast, which justify the conclusion that there was no choice, appear 
above, as follows: 


John Martin 

Cobun. 

Close . 

Snyder . 

Hanna. 

J. W. Ady .. 


Votes.. 
. 86 
. 4 

1 
1 
I 

. 77 


Deduct the surplus and illegal votes, being 


170 

10 


Total legal votes 
Necessary for a choice 


160 

81 


Martin received. 86 

Deduct his illegal votes, being. 9 


Total legal votes cast for Martin. 77 

‘ ‘ Or 4 less than were necessary for an election. 

“An attempt has been made to show that Martin in the assembly as cut short by 
the lieutenant-governor was elected without counting the 10 illegal votes, as follows: 

Votes. 


Martin. 77 

Cobun. 4 

Close. 1 

Snyder. 1 


Giving in all. 83 

“votes cast by legal members; and being exactly a majority of the whole 165 legal 
members of the legislature. 

“But to make this calculation it is necessary to count the 2 votes of Wilson and 
Rosenthal from the Douglass house, while excluding the 65 other members of that 
house and the 15 Senators. 

“To justify taking in the 2 while excluding the 80 is impossible. 

“From the foregoing facts it is not difficult to reach two conclusions: First, the 
time had not arrived when the legislature of Kansas could lawfully elect a United 
States Senator. The legislature had not been organized within the meaning of the 
United States law, which is as follows: 

“‘Sec. 14. The legislature of each State * * * shall, on the second Tuesday 
after the meeting and organization thereof, proceed to elect a Senator in Congress. ’ 

“It is true that there was a lawful senate, and it is true, as appears from the sub¬ 
sequent decision of the supreme court of Kansas, that there was a lawful house. 
But it is also true that there was, in addition to the lawful house, an unlawful house, 
and that unlawful house was recognized by the senate and by the governor, while 
the lawful house received no recognition as such, either from the senate or from the 
governor. 

“Manifestly there was no organization of a legislature within the meaning of the 
national statute, so that the time began to run at the end of which, by the national 
law, it was the right and the duty of the members of the legislature to elect a United 
States Senator. In no just sense could the legislature be said to be organized under 
the conditions above described. It is not contended that in all cases where a lawful 
senate and a lawful house are organized it must be shown that they communicate 
with each other and recognize each other. That fact is to be presumed in the 
absence of counter proof; but as soon as such counter proof appears and the anomalous 
condition is shown that the lawful house. has made no connection with the senate, 
but that the senate, on the other hand, is in connection with an unlawful house, 
there can not be said to be in any proper sense an organization of the legislature 
within the meaning of the United States statute. This point I do not intend to 
enlarge upon. I am thoroughly convinced of its validity. 

“But, conceding that there was an organized legislature on Tuesday, January 10, 
1893, entitled, on the second Tuesday thereafter, namely, on January 24, and on the 
day after, the 25th, to elect a United States Senator, it seems clear that there was 
no lawful election. Review the facts. The members of the three houses met in one 
room. The voting began. A part of the senators voted, the other part omitting to 



















816 SENATE ELECTION CASES. 

vote. The members of the unlawful house voted, the members of the lawful house 
omitting to vote when the roll was called by the clerk of the unlawful house, whom 
they did not recognize as clerk. Then two members of the legal house asked to 
vote, and their votes were received. Next, the senators who had not voted and the 
members of the legal house asked to vote, but the lieutenant-governor refused to 
receive their votes, although he had received the two votes from the members of 
the legal house, and then he declared Mr. Martin elected. 

“Can it be by any possibility contended that the lieutenant-governor had any 
right so to deal with the joint assembly; to receive the votes of the members of the 
illegal house; to receive at his discretion the votes of two members of the legal house, 
and then to exclude the remaining 62 members of the legal house and 15 senators? 
The idea is preposterous.. The case is clear. Either there was no lawful joint assem¬ 
bly on that day, because the legislature was not organized, or it was the duty of the 
lieutenant-governor to receive the votes of all the members of the two houses. To 
base the right of a Senator to a seat upon this floor, as Senator Martin’s right is 
based, solely upon the assumed authority of the lieutenant-governor, as exercised in 
this case, to receive votes enough to elect Mr. Martin and make a majority of the 
legal votes of the whole legislature, and then to arbitrarily stop the balloting and 
declare Mr. Martin to be elected, is as dangerous and vicious a proceeding as has 
ever been heard of in the history of fraudulent elections.” 

Tuesday, February 12, 1895. 

Mr. Gray, from the Committee on Privileges and Elections, reported the following 
resolution, which was referred to the Committee to Audit and Control the Contin¬ 
gent Expenses of the Senate: 

“ Resolved, That the Secretary of the Senate be, and he is hereby, authorized and 
directed to pay, out of the contingent fund of the Senate, to Joseph W. Ady, the con¬ 
testant of the seat of John Martin, a Senator from Kansas, the sum of $2,000, in full 
of expenses incurred by the said Joseph W. Ady in his said contest.” 

(Cong. Rec., vol. 27, p. 2064.) 

Tuesday, February 19, 1895. 

The foregoing resolution was reported favorably, without amendment, by the Com¬ 
mittee to Audit and Control the Contingent Expenses of the Senate. 

(Cong. Rec., vol. 27, p. 2369.) 

Tuesday, February 26, 1895. 

Mr. Gray, from the Committee on Privileges and Elections, reported the following 
resolution, which was referred to the Committee to Audit and Control the Contin¬ 
gent Expenses of the Senate: 

“ Resolved, That the Secretary of the Senate be, and he is hereby, authorized and 
directed to pay, out of the contingent fund of the Senate, to John Martin, a Senator 
from the State of Kansas, the sum of $1,000, in full of compensation and all expenses 
incurred by him in the contest for his seat in the Senate by Joseph W. Ady.” 

(Cong. Rec., vol. 27, p. 2748.) 

Thursday, February 28, 1895. 

Mr. Hoar. I ask unanimous consent for the consideration of the resolution in the 
case of Mr. Ady. 

The Presiding Officer (Mr. Hill in the chair). The resolution will be read. 

The Secretary read the following resolution reported from the Committee to Audit 
and Control the Contingent Expenses of the Senate on the 12th instant Terror for 
19th instant]: 

“Resolved, That the Secretary of the Senate be, and he is hereby, authorized and 
directed to pay, out of the contingent fund of the Senate, to Joseph W. Ady, the 
contestant of the seat of John Martin, a Senator from Kansas, the sum of $2,000, in 
full of expenses incurred by the said Joseph W. Ady in his said contest.” 

The resolution was considered by unanimous consent, and agreed to. 

(Cong. Rec., vol. 27, p. 2901.) 

Thursday, February 28, 1895. 

Mr. Jones, of Arkansas, from the Committee to Audit and Control the Contingent 
Expenses of the Senate, to whom was referred the following resolution submitted by 
Mr. Gray on the 26th instant, reported it without amendment: 

“Resolved, That the Secretary of the Senate be, and he is hereby, authorized and 
directed to pay, out of the contingent fund of the Senate, to John Martin, a Senator 
from the State of Kansas, the sum of $1,000, in full of compensation and all expenses 
incurred by him in the contest for his seat in the Senate by Joseph W. Ady.” 

Mr. Hoar. I now ask for the consideration of the resolution relating to the pay¬ 
ment of the expenses of the Senator from Kansas [Mr. Martin]. 

The resolution was read, considered by unanimous consent, and agreed to. 

(Cong. Rec., vol. 27, p. 2901.) 


OF ALABAMA. 


817 


WARREN T. REESE, 


[Fifty-third Congress, third session.] 

WARREN T. REESE, of Alabama. 

During the third session of the Fifty-third Congress and on the 1st day of February, 1895, the cre¬ 
dentials of Warren T. Reese were presented to the Senate, certifying to the election of said Warren 
T. Reese as a Senator from the State of Alabama for the term of six years, commencing on the 4th 
day of March, A. D. 1895, being the same term which was afterwards filled by Hon. John T. Morgan 
in due course. After discussion the credentials of Mr. Reese were ordered to lie on the table, but 
were not afterwards taken from the table, debated, or acted upon. 

The history of the case as here given consists of a statement of the proceedings in the Senate as 
published in the Congressional Record. 


Friday, February 1 , 1895. 

Mr. Allen. I present the credentials of Warren T. Reese, a Senator elect from the 
State of Alabama, and ask that they be read and placed on the files. 

The Vice-President. The Secretary will read the credentials. 

The Secretary read as follows: 

“State of Alabama, Executive Department. 

“This is to certify that on the 28th day of November, in the year of our Lord 
1894, Warren T. Reese was duly elected by the legislature of Alabama a Senator to 
represent said State in the Senate of the United States for the term of six years, com¬ 
mencing the 4th day of March, A. D. 1895. 

“Witness: His excellency our governor, R. F. Kolb, and our seal hereunto 
affixed, at Montgomery, Ala., this 8th day of December, in the year of our Lord 
1894, and of the Independence of the United States of America the one hundred and 
eighteenth. 

R. F. KOLB, Governor. 

“ By the governor: 

“J. C. Fonville, Secretary of State.” 

Mr. Gray. I move that the communication just read be referred to the Committee 
on Privileges and Elections. 

Mr. Allen. I hope that the Senator from Delaware will withdraw that motion 
and allow the credentials to take the usual course. 

Mr. Gray. What is the usual course, may I ask the Senator from Nebraska? 

Mr. Allen. I suppose it is to place them on the files the same as other credentials. 
I do not know that the credentials should go to the Committee on Privileges and 
Elections unless there is some contest. 

Mr. Gray. I do not think that would be the usual course for a communication of 
this kind. I think the reference I propose is the proper one. 

Mr. Allen. It does not occur to me that it is proper at this time. If a contest 
comes up here I suppose the Committee on Privileges and Elections will have to 
consider it. I hope the Senator from Delaware will not insist on his motion. 
******* 

Mr. Gray. I have no objection to letting the paper lie on the table for the present. 

Mr. Allen. I simply desire to state that there is or will be a contest regarding a 
seat in the Senate from the State of Alabama. That fact can not be any longer 
ignored. 

Mr. Gray. Such a contest can not be made in the present Congress nor at the 
present session. 

After further discussion the credentials presented by Mr. Allen were ordered to 
lie on the table. 

(Cong. Rec., vol. 27, pp. 1604, 1605.) 

S. Doc. 11-52 



818 


SENATE ELECTION CASES. 


[Fifty-fourth Congress, first and second sessions.] 


HENRY A. DU PONT, of Delaware. 

On the third day of the first session of the Fifty-fourth Congress Henry A/Du Pont, of Delaware, 
presented to the Senate of the United States his claim to a seat in the Senate as a Senator from the 
State of Delaware, duly elected to serve as such for the term of six years, commencing on the 4th 
day of March, 1895. In support of this claim Mr. Du Pont filed a certificate signed by the speaker of 
the Delaware house of representatives and attested by the clerk of said house, stating and asserting 
that on the 9th day of May, 1895, at a session of the senate and house of representatives of the State 
of Delaware, convened in joint assembly for the purpose of electing a Senator from said State, a 
ballot was duly taken for the election of a Senator, as aforesaid; that on such ballot Henry A. Du 
Pont received 15 votes, Edward Ridgely received 10 votes, John E. Addicks received 4 votes, and Ebe 
W. Tunnell received 1 vote; that one of the ten votes so received by the said Edward Ridgely in 
said joint assembly was given by William T. Watson; that upon the organization of the senate of 
said State of Delaware upon the first Tuesday of January, A. D. 1895, said William T. Watson was 
duly elected and qualified as the speaker of the senate, and that on the 9th day of April, A. D. 1895, 
the* said William T. Watson duly took the oath of office as governor of said state of Delaware in 
place of Joshua H. Marvil, deceased; that upon his qualifying and entering upon the exercise of 
the office of governor, as aforesaid, the said William T. Watson ceased to have the right to act as a 
member of the senate of said State, or to vote in said joint assembly for the election of a Senator in 
Congress, as aforesaid; that said vote so given for said Edward Ridgely by said William T. Watson 
was given illegally and in violation of the constitution of the State of Delaware; and that Henry 
A. Du Pont on said ballot having received 15 votes, and Edward Ridgely having received only 9 legal 
votes, John E. Addicks having received 4 votes, and Ebe W. Tunnell having received 1 vote, the said 
Henry A. Du Pont having thereby received a majority of the votes of all the senators and representa¬ 
tives then constituting the legislature of the State of Delaware, they being all present and voting, was 
duly elected a Senator from the State of Delaware, and was duly declared elected to that office by the 
speaker of the house of representatives of the State of Delaware. 

The claim of Mr. Du Pont and the aforesaid certificate were* referred to the Committee on Privi¬ 
leges and Elections. Subsequently certain affidavits and portions of the senate journal of the 
legislature of the State of Delaware were also referred to the same committee. 

The report of the committee affirmed the right of Mr. Du Pont to a seat in the Senate, and was 
accompanied by a resolution that Mr. Du Pont was entitled to a seat in the Senate as a Senator from 
the State of Delaware for the full term commencing March 4, 1895. Afterwards a minority report 
was filed, signed by four members of the committee, declaring that Mr. Du Pont was not legally 
elected to the Senate. 

After a debate extending, at intervals, over a period of several months, Mr. Du Pont was declared 
by a vote of 31 to 30 not to be entitled to a seat in the Senate. 

Subsequently, and during the second session of the Fifty-fourth Congress, Mr. Du Pont presented 
to the Senate a memorial praying that all the papers and documents in the case be taken from the 
files and again referred to the Committee on Privileges and Elections, with directions to reinvestigate 
such election and reconsider the same in all particulars. This memorial was referred to the Com¬ 
mittee on Privileges and Elections, which committee afterwards filed a report recommending that the 
case be not reopened. 

The history of the case here given consists of a statement of the proceedings of the Senate in the 
case as published in the Congressional Record, the report of the Committee on Privileges and Elec¬ 
tions, the views of a minority of the committee, a statement of the days on which the question was 
debated in the Senate, with a reference to the record of the same as published in the Congressional 
Record, extracts from remarks of Senators in such debate, the vote on agreeing to the amendment 
to the resolution submitted by the Committee on Privileges and Elections, and the vote on agreeing 
to the resolution as amended, the proceedings in the Senate with reference to the memorial subse¬ 
quently presented by Mr. Du Pont, and the report of the Committee on Privileges and Elections 
recommending that the case be not reopened. 


PROCEEDINGS IN THE SENATE. 


Wednesday, December 4, 1895. 

Mr. Mitchell, of Oregon, presented the petition of Henry A. Du Pont, of Delaware, 
claiming a seat in the-Senate for the full term commencing March 4, 1895, by virtue 
of his election by the legislature of the State of Delaware. He also presented a cer¬ 
tificate of the election of Mr. Du Pont, signed by the speaker of the Delaware house 
of representatives and attested by the clerk of the house. Both the claim and the 
certificate aforesaid were read and ordered to be printed and referred to the Com¬ 
mittee on Privileges and Elections. 

(Cong. Pec., vol. 28, pp. 29, 30.) 


WEDNESDAy, January 15, 1896. 

Mr. Gray presented the affidavits of Robert J. Hanby, William T. Records, Charles 
A. Hastings, John B. Pennington, and Edward D. Hearne, citizens of the State of 


HENRY A. DU PONT, OF DELAWARE. 819 

Delaware, which were referred to the Committee on Privileges and Elections and 
ordered to be printed. 

Mr. Mitchell, of Oregon, presented sundry affidavits and also portions of the senate 
journal of the legislature of the State of Delaware, all relating to the question of the 
election of Mr. Du Pont by the legislature of the State of Delaware, which were 
referred to the Committee on Privileges and Elections and ordered to be printed as a 
document. 

(Cong. Rec., vol. 28, p. 686.) 


Friday, January 24 , 1896. 

Mr. Mitchell, of Oregon, presented an affidavit relative to the case of Henry A. 
Du Pont, claiming to have been elected a Senator from the State of Delaware. It 
was ordered that the affidavit be printed as a document and referred to the Commit¬ 
tee on Privileges and Elections. 

(Cong. Rec., vol. 28, p. 956.) 


Wednesday, January 29, 1896. 

Mr. Gray presented certain affidavits in the matter of the claim of Henry A. Du 
Pont to a seat in the United States Senate; which were referred to the Committee 
on Privileges and Elections and ordered to be printed. 

(Cong. Rec., vol. 28, p. 1065.) 


Thursday, January 30, 1896. 

Mr. Gray presented the affidavit of Samuel Alrichs, of Delaware, in the matter of 
the claim of Henry A. Du Pont to a seat in the United States Senate; which was re¬ 
ferred to the Committee on Privileges and Elections and ordered to be printed. 
(Cong. Rec., vol. 28, p. 1096.) 


Thursday, February 13, 1896. 

Mr. Turpie presented a certified copy of the return of the election of William T. 
Watson as senator for the county of Kent in the general assembly of the State of 
Delaware. 

The paper was ordered to be printed and referred to the Committee on Privileges 
and Elections. 

(Cong. Rec., vol. 28, p. 1675.) 


Monday, February\ 17, 1896. 

Mr. Mitchell, of Oregon, from the Committee on Privileges and Elections, sub¬ 
mitted a report relative to the claim of Henry A. Du Pont to a seat in the Senate 
from the State of Delaware. To this report was appended a resolution, as follows: 

“Resolved, That Henry A. Du Pont is entitled to a seat in the Senate from the State 
of Delaware for the full term commencing March 4, 1895. ’ ’ 

After a brief discussion the report and resolution were temporarily withdrawn. 

(Cong. Rec., vol. 28, p. 1781.) 


Tuesday, February 18, 1896. 

Mr. Mitchell, of Oregon, in behalf of the Committee on Privileges and Elections, 
presented the resolution and report submitted by him on the preceding day and 
temporarily withdrawn, in the matter of the claim of Henry A. Du Pont, of the State 
of Delaware, to a seat in the Senate from that State. 

Mr. Turpie submitted the views of the minority of the committee. 

It was ordered that the report and the views of the minority of the committee be 
printed in the Record and also printed together as a document. 

(Cong. Rec., vol. 28, 1827, 1828.) 

REPORT OF THE COMMITTEE. 

[The committee consisted of Messrs. Mitchell of Oregon (chairman), Hoar, Chand¬ 
ler, Burrows, Pritchard, Gray, Pugh, Turpie, and Palmer.] 

In the Senate of the United States. 

February 18, 1896.—Ordered to be printed. 

Mr. Mitchell, of Oregon, from the Committee on Privileges and Elections, sub¬ 
mitted the following report (to accompany S. Res. 133): 

The Committee on Privileges and Elections, to whom was referred the petition of 


820 


SENATE ELECTION CASES. 


Henry A. Du Pont, of the State of Delaware, claiming a seat in the Senate from that 
State in virtue of an election by the legislature thereof on May 9, 1895, having had 
the same under consideration, beg leave to submit the following report: 

STATEMENT OF FACTS. 

There is in this case no material contention as to the facts. It is conceded the peti¬ 
tioner, Henry A. Du Pont, was, at the date of his alleged election, a citizen of the 
United States and an inhabitant of the State of Delaware, over 30 years of age, and 
in all respects qualified to become a Senator. 

The legislature of the State of Delaware consists of a senate, composed of 9 sena¬ 
tors, 3 of whom are elected from each of the three counties of the State, and a house 
of representatives of 21 members, 7 of whom are elected from each of the three 
counties of the State. When there are no vacancies in the membership, and all are 
present in joint assembly of the two houses for the purpose of electing a United 
States Senator, such joint assembly is composed of 30 members, thus requiring the 
votes of 16 members to elect. 

In the event of one vacancy caused either by death, resignation, inability to act, 
or for any other reason, then the joint assembly, all others being present, would be 
composed of 29 members, in which event the votes of 15 members would be sufficient 
to elect. 

At the meeting of the joint assembly of the legislature of Delaware on the 9th day 
of May, 1895, which assembly, it is conceded, was in all respects regularly called 
and held in pursuance of law, the final vote was as follows: 

“ Joint meeting proceeded to another ballot, which resulted as follows: 


Mr. Alrichs, of the senate, voted for 

Mr. Fenimore. 

Mr. Hanby. 

Mr. Harrington. . 

Mr. Moore. 

Mr. Pierce. 

Mr. Pyle. 

Mr. Records. 

Mr. Speaker. 

Mr. Ball, of the house, voted for ... 

Mr. Brown. 

Mr. Burton. 

Mr. Daly . . 

Mr. Davis. 

Mr. Fleming. 

Mr. Jolls .. 

Mr. Killen. 

Mr. Money. 

Mr. Moore. 

Mr. Morgan. 

Mr. Mustard. 

Mr. Pyle. 

Mr. Reybold. . 

Mr. Robbins. 

Mr. Sypherd. 

Mr. Townsend. 

Mr. Walker. 

Mr. Watson. 

Mr. Wilson. 

Mr. Speaker. 


H. A. Du Pont. 

Ed. Ridgley. 

J. Edward Addicks. 
Ed. Ridgley. 

H. A. Du Pont. 

H. A. Du Pont. 

Ed. Ridgley. 

Ed. Ridgley. 

Ed. Ridgley. 

J. Edward Addicks. 

H. A. Du Pont. 

H. A. Du Pont. 

Ed. Ridgley. 

Ed. Ridgley. 

H. A. Du Pont. 

H. A. Du Pont. 

Ed. Ridgley. 

H. A. Du Pont. 

John Edward Addicks. 
H. A. Du Pont. 

Ebe W. Tunnell. 

H. A. Du Pont. 

H. A. Du Pont. 

J. Edward Addicks. 
Edward Ridgley. 

H. A. Du Pont. 

H. A. Du Pont. 

Ed. Ridgley. 

H. A. Du Pont. 

H. A. Du Pont. 


“The vote as above ascertained having been announced, as follows: 


Votes. 


H. A. Du Pont had... 15 

Ed. Ridgley had. 10 

J. Edward Addicks had. 4 

Ebe W. Tunnell had. 1 


There being present in such joint assembly, and each casting a vote, 30 persons, 
each claiming to be a member of the legislature of the State of Delaware and entitled 
to vote for United States Senator. 

It is conceded by Mr. Du Pont, and by your committee, that if this contention is 
true—that is, if each of the 30 persons so present in such joint assembly, and each of 




































HENRY A. DU PONT, OF DELAWARE. 


821 


whom cast a vote for Senator, was a duly qualified member of the legislature of the 
State of Delaware, and under no disability, as such, which would deprive him of his 
right to a seat in such assembly, and to cast a vote for Senator—then Mr. Du Pont 
was not elected Senator, and is not entitled to a seat in the Senate. 

It is admitted upon the part of Mr. Du Pont, and such is the fact, that of the 30 
persons so present and claiming a right to vote as aforesaid, 29 of them were so qual¬ 
ified. It is contended, however, that 1 of the 30, namely, William T. Watson, claim¬ 
ing to be a senator from the county of Kent, and claiming to be the speaker of the 
senate, and claiming the right, as such senator, to be present and participate in the 
proceedings of such joint assembly, and to cast his vote for Senator, was not entitled, 
under the constitution of the State of Delaware and the laws of the land, to be present 
in such joint assembly, had no right to be counted therein in making up the number 
present, and had no right to cast his vote in such assembly for any person for senator. 

If this contention upon the part of Mr. Du Pont is correct, then it is conceded, pro¬ 
vided the right to inquire into Watson’s qualifications to vote in such assembly now 
exists, that, inasmuch as in that event there were but 29 members of the legislature 
of the State of Delaware present entitled to vote, and as it is conceded Mr. Du Pont 
received the votes of 15 of such members, no one of which was that of Mr. Watson, 
thus receiving a clear majority of all the votes cast, entitled to be cast, he was duly 
elected Senator, and is entitled to his seat. 

The whole question involved, then, in this case is as to the right of Watson to be 
present in such joint assembly, and to be counted therein in making up the number 
present, so as to require the votes of 16 members to make an election. 

The ground upon which it is claimed upon the part of Mr. Du Pont that Mr. Wat¬ 
son was ineligible to a seat in such joint assembly, and should not have been counted 
therein in making up the number constituting the same, is based on the fact that, 
although he had been duly elected a senator from the county of Kent, and from the 
commencement of the session in January, 1895, until April 9 of that year, had held 
and occupied a seat in the senate, and had been elected speaker thereof, and served 
in that capacity, he had, on the 9th day of April, 1895, the governor of the State of 
Delaware, Joshua H. Marvil, having died the day previous, succeeded to the govern¬ 
orship of the State in virtue of a provision of the constitution of that State, and from 
that date until the 9th day of May following had continued to exercise the functions 
and duties of executive of the State, and has ever since and still continues to exercise 
the office of governor of said State, and that, therefore, on that date, May 9,1895, he, 
then holding the office of and being the governor of the State of Delaware, was ineligi¬ 
ble to a seat in said joint assembly, and had no right whatever, under the provisions 
of the constitution of the State and of the laws of the land, to be present, either to 
participate by his vote or otherwise, or to be counted therein. 

Your committee hold that this contention on the part of Mr. Du Pont is well 
founded. 

The clause in the Delaware constitution in pursuance of which Mr. Watson, as 
speaker of the senate, became governor on April 9, 1895, and which will be com¬ 
mented on later in this report, is found in section 14 of Article III, and is as follows: 

“Upon any vacancy happening in the office of governor by his death, removal, 
resignation, or inability, the speaker of the senate shall exercise the office until a 
governor elected by the people shall be duly qualified.” 

It is conceded a vacancy in the office of governor occurred on April 8,1895, by the 
death of the then governor of the State, Joshua H. Marvil; also that Senator Watson 
was then and on April 9, 1895, speaker of the senate, and that on this latter date he 
took the required oaths, was inaugurated, and entered upon the exercise of the office 
of governor, and has continued to hold and exercise such office ever since. 

PROCEEDINGS OF THE LEGISLATURE. 

The legislature of the State of Delaware met in biennial session on the first Tuesday 
of January, 1895, and on that day organized by the election of speakers and other 
officers for the senate and house of representatives. There were at that time 9 mem¬ 
bers of the Senate and 21 members of the house of representatives, 3 senators and 7 
representatives having been chosen from each of the three counties iir the State. At 
the organization of the senate William T. Watson was duly elected speaker and con¬ 
tinued in the discharge of his official duties as speaker of the senate, save during 
occasional absences, until the 9th day of April, 1895, the day following that on which 
Joshua H. Marvil, governor of the State of Delaware, died. 

This legislature being charged with the duty of electing a Senator of the United States 
for the constitutional term of six years commencing on the 4th day of March, 1895, 
and having failed to elect such Senator on the second Tuesday after the meeting and 
organization of such legislature, convened in joint assembly on the next day, being 


822 


SENATE ELECTION CASES. 


the 16th day of January, pursuant to the provisions of the act of Congress entitled 
“An act to regulate the times and manner of holding elections for Senators in Con¬ 
gress,” approved July 25, 1866, and proceeded to vote for a United States Senator. 

No one having been elected to that office on that day, the legislature, pursuant to 
the provisions of said act, convened in joint assembly on the following and succeed¬ 
ing days, Sundays excepted, until and including Thursday, the 9th day of May, 1895. 
No one was elected United States Senator prior to the day last named. On the 9th 
day of April aforesaid, immediately after the joint assembly of the two houses had 
separated, Senator William T. Watson, who at the time of the death of Governor 
Marvil, which occurred on the preceding day, had been speaker of the senate, took 
the official oaths prescribed for the governorof the State of Delaware, and forthwith 
entered upon the exercise of that office. 

It is conceded that from the commencement of the voting for a United States Sen¬ 
ator until and including the 9th day of April, Senator William T. Watson took part 
in such voting except during occasional absences. 

Furthermore it is a conceded fact, and if not conceded, fully borne out by the 
journal entries and other testimony, that from the time he took the oaths of office 
and assumed the functions of governor in the exercise of such office until the final 
joint assembly of the two houses on the 9th day of May, Governor Watson did not 
upon any occasion take any part either in the proceedings of the senate or of the joint 
assembly. 

And, further, it is clear to your committee from the record and other evidence 
submitted that from the hour of his inauguration as governor, by taking the consti¬ 
tutional oaths required'of a governor, his name was dropped from the roll call of the 
senate and was never once called, either as of speaker or as of a senator, on any roll 
call had on any bill, resolution, or motion until the final adjournment of the senate. 
Senator Alrichs, in his affidavit of date January 28, 1896 (Doc. 9, part 6, p. 1), shows 
this conclusively, and it is not contradicted by any affidavit filed in the case. The 
following is Senator Alrichs’s affidavit in full: 

AFFIDAVIT OF SAMUEL ALRICHS. 

“State of Delaware, Newcastle County , ss; 

“On this 28th day of January, A. D. 1896, before me, Edward G. Cook, a notary 
public for the State of Delaware in and for Newcastle County, personally comes 
Samuel Alrichs, who, being by me first duly sworn according to law, deposes and 
says: 

“That he is a member of the senate of the State of Delaware, as stated by him in 
a previous affidavit made in the above matter; that he took his seat in said senate on 
the 1st day of January, A. D. 1895, for a term of four years; that, after William T. 
Watson took the oath of office as governor of the State of Delaware upon the death of Gov¬ 
ernor Marvil, to wit, on the 9th day of April, A. D. 1895, to the expiration of the 
last session of the senate on the 9th day of May of said year, the clerk of the senate did 
not call the name of William T. Watson as a member of the"senate. He was neither on the 
call of the roll at the assembling, of any session, nor upon the taking of any roll call upon 
bill, resolution , or other motion. He was not reported by the clerk as either present or 
absent; neither was his name called or recorded upon the taking of any yea or nay vote as 
being present or absent. William T. Watson’s name was thus dropped from the rolls after 
he became governor by reason of no special order, or action, or motion, or otherwise, taken 
in respect thereto by the senate. It must have been done by the order of the speaker 
pro tempore. It was, however, in accordance with the general understanding of the members 
of the senate that William T. Watson was no longer a member of that body. 

“SAMUEL ALRICHS. 

‘ ‘ Sworn to and subscribed before me the day and year first above written, as wit¬ 
ness my hand and official seal. 

“[seal.] EDWARD J. COOK, Notary Public 

It is conceded, however, that Governor Watson did, on the 9th day oi[ May afore¬ 
said, enter the final joint assembly and assume the right to be counted as a member 
of such assembly, and the right to vote therein for a United States Senator. During 
this final assembly 28 ballots were had for United States Senator. The vote upon 
each ballot as shown by the record of such assembly was as follows: 

Votes. 

Henry A. Du Pont. 15 

Ed. Ridgely. in 

J. E. Addicks. 4 

E. W. Tunnel 1.1 

Willliam T. Watson, then governor of the State of Delaware, as aforesaid, cast his 
vote each time for Ed. Ridgely. 






HENRY A. DU PONT, OF DELAWARE. ' 


823 


THE VITAL QUESTION. 

• ^ seen ’ therefore, the whole question of the right of Mr. Du Pont to a seat 

1] u Senate, as claimed, turns upon the single question: Had William T. Watson, 
then holding and exercising the office of governor of the State of Delaware, a right 
under the constitution of that State and the laws of the land, to exercise the office of 
State senator, and as such to sit in the joint assembly on May 9, 1895, to be counted 
therein in making up the number constituting such joint assembly, and to vote 
therein for a United States Senator? Your committee are clearly of the opinion he 
had not. 


PROPOSITIONS INVOICED. 

In determining this question three different propositions are presented for our 
consideration: 

First. Did the offices of senator and speaker of the senate, held by William T. 
Watson from the commencement of the session of the Delaware legislature in Jan¬ 
uary, 1895, until April 9, 1895, become absolutely vacant on the inauguration of said 
William T. Watson as governor of the State by taking the oaths of office required of 
a person entering upon the exercise of that office? Or, 

Second. If such offices of senator and speaker of the senate did not become abso¬ 
lutely vacant upon such inauguration as governor, was the right of Watson to exer¬ 
cise the functions of both speaker of the senate and senator held in abeyance and 
suspended, for and during the time he should continue to hold and exercise the office 
of governor. Or, 

Third. IVhile holding and exercising the office of governor did said William T. 
Watson not only continue to hold the offices of senator and speaker of the senate, 
but did his right to exercise all the functions of such senator and speaker of the 
senate while holding and excercising the office of governor continue to exist? 

The answer to either or both of the first two propositions in the affirmative settles 
the question in favor of the right of Mr. Du Pont to a seat, while an affirmative 
answer to the third proposition, which of course negatives the other two, would be 
a denial of his right to a seat. 

In discussing these several propositions, therefore, it becomes, in the view taken 
by your committee, wholly unnecessary, in reaching a correct conclusion as to the 
merits of the present controversy, to determine the question as to whether the offices 
of senator and speaker of the senate became absolutely vacant upon the accession of 
the speaker of the senate to the office of governor, so as to entitle the electors of 
Kent County to fill such vacancy by election, or so as to prevent his resuming his 
place as senator and speaker at the termination of his term of office, and of his right 
to exercise the office of governor, as it is clear, if the right of Watson, while holding 
the office of governor and exercising that office, to exercise the functions of a sena¬ 
tor, whether for the reason that his office as such senator had ipso facto become 
vacant, or for any other reason, based on a fair construction of the various provisions 
of the constitution of the State of Delaware, and the well-known rule of law relating 
to incompatible offices, was suspended , then in either of such events the presence of 
Governor Watson in the joint assembly May 9, 1895, and his voting for a United 
States Senator therein while holding and exercising the office of governor, were 
wholly illegal , and in such event his vote in such joint assembly should not be counted. 

WHETHER THE OFFICES HELD BY MR. WATSON AS SENATOR AND SPEAKER OF THE 
SENATE DID OR DID NOT BECOME ABSOLUTELY VACANT ON HIS BECOMING GOVERNOR, 
IT IS CLEAR THAT WHILE HOLDING AND EXERCISING SUCH EXECUTIVE OFFICE HIS 
RIGHT TO EXERCISE ANY OF THE FUNCTIONS, EITHER OF THE OFFICE OF SENATOR OR 
SPEAKER OF THE SENATE, WAS ABSOLUTELY SUSPENDED. 

Whether the offices held by Mr. Watson as senator and speaker of the senate did 
or did not become absolutely vacant on his becoming governor, it is clear that while 
holding and exercising such executive office his right to exercise any of the functions, 
either of the office of senator or speaker of the senate, was absolutely suspended. 
This conclusion is based on what seems to your committee to be— 

First. The only reasonable and fair construction of various provisions of the con¬ 
stitution of the State of Delaware; 

Second. Because it is sustained and supported by the well-recognized rule of the 
common law which inhibits either the holding or exercising simultaneously by the 
same person two incompatible offices, and also by the principles of our American 
system that legislative and executive offices are incompatible; and, 

Third. Because the uniform unbroken usage observed in Delaware by its governors, 


824 


SENATE ELECTION CASES. 


legislators, and people for more than one hundred years is to this effect, that is to say, 
that the right to exercise the offices of senator and speaker of the senate is suspended 
and held in abeyance during the time he is exercising the office of governor, and that 
both offices can not by such person be exercised simultaneously, and in perfect har¬ 
mony with the constitutional provisions of the State which, in our judgment, expressly 
forbid the simultaneous exercise by the same person of the offices of governor and 
State senator- 


LEGAL PROPOSITIONS. 

Before proceeding to analyze these various constitutional provisions in their appli¬ 
cation to the present controversy,*your committee respectfully submit the following 
propositions, the soundness of which it will endeavor to maintain: 

First. It is a well-settled rule of the common law that the same person shall not 
exercise simultaneously tw r o incompatible offices; and further, the acceptance of one 
is ipso facto a resignation of the other. 

Second. Under the American system, executive and legislative offices are incom¬ 
patible, and the same person can not exercise both simultaneously in the absence of 
either express or clearly implied statutory or constitutional authority, and the accept¬ 
ance of a second such is ipso facto a resignation of the first. 

Third. There is no express or implied authority in the Delaware constitution for the 
simultaneous exercise by the same person of the offices of governor and senator; on 
the contrary, the constitution expressly interdicts such exercise of those two offices, 
and therefore at the time w r hen Mr. Du Pont received 15 votes in the joint assembly, 
Mr. Watson being then governor of the State, holding and exercising that executive 
office, was incapable of exercising the office of senator. 

Fourth. The theory that Mr. Watson can exercise the office of governor of the 
State and State senator simultaneously involves innumerable constitutional repug¬ 
nancies, perplexing difficulties, and endless absurdities, while the opposite theory 
reconciles and harmonizes all the provisions of the Delaware constitution relating to 
the subject under consideration. 

Fifth. Whether or not the offices of State senator and speaker of the senate became 
absolutely vacant when Speaker Watson took the oaths of office, w r as inaugurated gov¬ 
ernor of the State, and entered upon the exercise of that office, there can be no doubt 
on a fair construction of the several constitutional provisions of the State of Dela¬ 
ware, that his right to exercise the office of senator or speaker of the senate, or any of the 
functions connected therewith while he continued to hold and exercise the office of 
governor, was absolutely suspended. 

Sixth. That Governor Watson’s exercise of the office of senator in the joint assem¬ 
bly, and of the office of president of the joint assembly, was illegal, and his vote for 
United States senator a nullity. 

Seventh. The journal entries of the proceedings of the Delaware senate on May 9, 
1895, are conclusive as to the number and names of senators present, the motions 
submitted, the votes cast, and of all the proceedings had, and can not be contradicted 
by ex parte affidavits. 

Eighth. The right which undoubtedly belongs exclusively to the Delaware senate 
to judge of the elections, returns, and qualifications of its members, does not vest in 
such senate any such exclusive right as would conclude the Senate of the United 
States, to determine by construction whether the constitution of the State does or 
does not recognize a certain seat as subject to occupation, nor does it include the power 
to admit members to seats not recognized by the constitution of the State as subject to occu¬ 
pation, or if subject to occupation, to fill them in a manner or by a person which the 
State constitution forbids. 

This latter proposition will receive first consideration at the hands of your 
committee. 


PROVISIONS OF THE DELAWARE CONSTITUTION. 

The following are the several more important provisions of the constitution of the 
State of Delaware, which have, as it is believed, any bearing upon this controversy. 
They are all, for convenience of the Senate, inserted here, and will be considered 
and construed in pari materia. Certain other clauses will be cited and commented 
on later in this report: 

“Art. 2. Sec. 1 . The legislative power of this State shall be vested in a general 
assembly, which shall consist of a senate and house of representatives. 

“Art. 3. Sec. 1. The supreme executive powers of the State shall be vested in a 
governor. 

“Art. 6. Sec. 1. The judicial pow T er of this State shall be vested in a court of errors 
and appeals, a superior court, a court of chancery, an orphan’s court, a court of oyer 


HENRY A. DU PONT, OF DELAWARE. 


825 


and terminer, a court of general sessions of the peace and jail delivery, a register’s 
court, justices of the peace, and such other courts as the general assembly, with the 
concurrence of two-thirds of all the members of both houses, shall, from time to 
time, establish.” 

Section 14, of Article III, is as follows: 

‘‘Sec. 14. Upon any vacancy happening in the office of governor, by his death, 
removal, resignation, or inability, the speaker of the senate shall exercise the office 
until a governor elected by the people shall be duly qualified. If there he no speaker of 
the senate, or upon a further vacancy happening in the office, by his death, removal, 
resignation, or inability, the speaker of the house of representatives shall exercise 
the office until a governor elected by the people shall be duly qualified. If the person 
elected governor shall die, or become disqualified before the commencement of his 
term of office, or shall refuse to take the same, the person holding the office shall con¬ 
tinue to exercise it until a governor shall be elected and duly qualified. If, upon a 
vacancy happening in the office of governor, there be no other person who can 
exercise said office within the provisions of the constitution, the secretary of state 
shall exercise the same until the next meeting of the general assembly, who shall 
immediately proceed to elect, by joint ballot of both houses, a person to exercise 
the office until a governor elected by the people shall be duly qualified. If a vacancy 
occur in the office of governor, or if the governor-elect die or become disqualified 
before the commencement of his term, or refuse to take the office, an election for 
governor shall be held at the next general election, unless the vacancy happen 
within six days next preceding the election, exclusive of the day of the happening 
of the vacancy and the day of the election; in that case, if an election for governor 
would not have been held at said election without the happening of such vacancy, 
no election for governor shall be held at said election in consequence of such vacancy. 
If the trial of a contested election shall continue longer than until the third Tuesday 
of January next ensuing the election of a governor, the governor of the last year, 
or the speaker of the senate or of the house of representatives, who may then be in 
the exercise of the executive authority, shall continue therein until a determination 
of such contested election. The governor shall not be removed from his office for 
inability but with the concurrence of two-thirds of all the members of each branch 
of the legislature.” 

Section 12, Article II, provides as follows: 

“Sec. 12. * * * No person concerned in any army or navy contracts, nor 

Member of Congress, nor any person holding any office under this State or the United 
States, except the Attorney-General, officers usually appointed by the courts of 
justice respectively, attorneys at law, and officers in the militia holding no disquali¬ 
fying office shall, during his continuance in Congress or in office, be a Senator or 
Representative. ’ ’ 

Section 5 of Article III: 

“Sec. 5. No member of Congress, nor person holding any office under the United 
States, or this State, shall exercise the office of governor.” 

The following is the oath of office taken by each of the governors of the State 
of Delaware upon his accession to office*. It is prescribed by Article YIII of the 
constitution. 

“Members of the general assembly and all officers, executive and judicial, shall 
be bound by oath or affirmation to support the constitution of this State and to 
perform the duties of their respective offices with fidelity.” 

The following are the journal entries of the Delaware senate of proceedings therein 
on April 9, 1895: 

“The Hon. James L. Wolcott then administered, in the presence of the members 
of the senate, to Hon. William Tharp Watson, speaker of the senate, the following 
oaths of office as governor, to wit: ‘I, William T. Watson, do solemnly swear, on 
the holy evangels of Almighty God, that I will support the Constitution of the 
United States of America. So help me God.’ 

“‘I, William T. Watson, do solemnly swear, on the holy evangels of Almighty 
God, that I will support the constitution of the State of Delaware. So help me God.’ 

“‘I, William T. Watson, do solemnly swear, on the holy evangels of Almighty 
God, that I will perform the duties of the office of governor of the State of Delaware 
with fidelity. So help me God.’ 

“Thereupon the speaker called Mr. Pyle to the chair and retired from the senate 
chamber.” 

Section 1, Article VI, of the constitution is as follows: 

“Sec. 1. The judicial power of this State shall be vested in a court of errors and 
appeals, a superior court, a court of chancery, an orphans’ court, a court of oyer 
and terminer, a court of general sessions of the peace and gaol delivery, a register’s 
court, justices of the peace, and such other courts as the general assembly, with the 


826 


SENATE ELECTION CASES. 


concurrence of two-thirds of all the members of both houses, shall from time to time 
establish. ’ ’ 

It is provided in Article III, section 3, that— 

“The governor shall hold his office during four years from the third Tuesday in 
January next ensuing his election, and shall not be eligible a second time to said 
office.’ ’ 

And in Article III, section 4, that— 

“Sec. 4. He shall be at least thirty years of age, and have been a citizen and inhab¬ 
itant of the United States twelve years next- before the first meeting of the legisla¬ 
ture after his election, and the last six of that term an inhabitant of this State, unless 
"he shall have been absent on the public business of the United States, or of this State.” 

Article III, section 11, provides as follows: 

“He shall, from time to time, give to the general assembly information of affairs 
concerning the State, and recommend to their consideration such measures as he 
shall judge expedient.” 

It is further provided in section 9, of Article III of the constitution, as follows: 

“Sec. 9. He shall have power to remit fines and forfeitures and to grant reprieves 
and pardons, except in cases of impeachment. He shall set forth in writing, fully, 
the grounds of all reprieves, pardons, and remissions, to be entered in the register 
of his official acts and laid before the general assembly at their next session.” 

The following are the provisions of the constitution of the State of Delaware bear¬ 
ing upon the election of senators and the constitution of the senate of that State: 

‘ ‘Art. 2. Sec. 3. The senators shall be chosen for four years by the citizens residing 
in the several counties. * * * 

“There shall be three senators chosen in each county. When a greater number of 
senators shall by the general assembly be judged necessary, two-thirds of each branch 
concurring, they may by law make provision for increasing their number; but the 
number of senators shall never be greater than one-half nor less than one-third of the 
number of representatives. 

“Sec. 2. The representatives shall be chosen for two years by the citizens residing 
in the several counties. * * * 

“There shall be seven representatives chosen in each county, until a greater num¬ 
ber of representatives shall by the general assembly be judged necessary; and then, 
two-thirds of each branch of the legislature concurring, they may by law make pro¬ 
vision for increasing their number.” 

The qualifications of a senator of the legislature of the State of Delaware are pre¬ 
scribed by section 3 of Article II of the constitution of that State, as follows: 

“No person shall be a senator who shall not have attained to the age of twenty- 
seven years, and have, in the county in which he shall be chosen, a freehold estate 
in two hundred acres of land, or an estate in real or personal property, or in either, 
of the value of one thousand pounds at least, and have been a citizen and inhabitant 
of the State three years next preceding the first meeting of the legislature after his 
election, and the last year of that term an inhabitant of the county in which he shall 
be chosen, unless he shall have been absent on the public business of the United 
States or of this State.” 

While the qualifications of a representative in the legislature of the State of Dela¬ 
ware are set forth in section 2 of Article II, as follows: 

“No person shall be a representative who shall not have attained the age of twenty- 
four years, and have been a citizen and inhabitant of the State three years next 
preceding the first meeting of the legislature after his election, and the last year of 
that term an inhabitant of the county in which he shall be chosen, unless he shall 
have been absent on the public business of the United States, or of this State.” 

While section .1 of Article IV provides that— 

“All elections for governor, senators, representatives, sheriffs, and coroners shall 
be held on the Tuesday next after the first Monday in the month of November of the 
year in which they are to be held, and be by ballot.” 

Section 2 of Article II provides that— 

“The representatives shall be chosen for two years by the citizens residing in the 
several counties.” 

Section 3 of Article II provides that— 

“That senators shall be chosen for four years by the citizens residing in the several 
counties.” 

Section 4 of Article II provides that— 

“The general assembly shall meet on the first Tuesday of January, biennially, 
unless sooner convened by the governor. The first meeting of the general assembly 
under this amended constitution shall be on the first Tuesday of January, in the 
year of our Lord one thousand eight hundred and thirty-three^ which shall be the 
commencement of biennial sessions.” 


HENRY A. DU PONT, OF DELAWARE. 


827 


It is provided in Article II, section 6, that— 

“Each house shall judge of the elections, returns, and qualifications of its own 
members. 

While Article V, sections 1 and 2, are as follows: 

“Article V. 

“Section 1 . The house of representatives shall have the sole power of impeaching; 
but two-thirds of all the members must concur in an impeachment. All impeach¬ 
ments shall be tried by the senate; and when sitting for that purpose the senators 
shall be upon oath or affirmation to do justice according to the evidence. No per¬ 
son shall be convicted without the concurrence of two-thirds of all the senators. 

“ Sec. 2. The governor, and all other civil officers under this State, shall be liable 
to impeachment for treason, bribery, or any high crime or misdemeanor in office. 
Judgment in such cases shall not extend further than to removal from office and 
disqualification to hold any office of honor, trust, or profit under this State; but the 
party convicted shall nevertheless be subject to indictment, trial, judgment, and 
punishment according to law.” 

It is provided in Article III, section 14, as follows: 

“ The governor shall not be removed from his office for inability but with the con¬ 
currence of two-thirds of all the members of each branch of the legislature.” 

Article II, section 5, provides that— 

“Each house shall choose its speaker and other officers; and also each house, 
whose speaker shall exercise the office of governor, may choose a speaker pro 
tempore. ’ ’ 

Article II, section 7, provides that— 

“ Each house may, * * * with the concurrence of two-thirds, expel a mem¬ 
ber, etc.” 

Article VII, section 3, provides that— 

“The legislature, two-thirds of each branch concurring, may vest the appoint¬ 
ment of sheriffs and coroners in the governor.” 

Article III, section 14, is as follows: 

“If upon a vacancy happening in the office of governor there be no other person 
who can exercise said office within the provisions of the constitution, the secretary 
of state shall exercise the same until the next meeting of the general assembly, who 
shall immediately proceed to elect, by joint ballot of both houses, a person to exer¬ 
cise the office until a governor elected by the people shall be duly qualified.” 

A PRELIMINARY QUESTION.-THE SENATE OF THE UNITED STATES MAY INQUIRE INTO 

THE RIGHT OF GOVERNOR WATSON TO A SEAT IN THE JOINT ASSEMBLY AND TO VOTE 

FOR A UNITED STATES SENATOR THEREIN. 

At the threshold in this investigation we are confronted with the question, Has 
the Senate of the United States the constitutional power to inquire into the question 
as to the right of Watson, then governor of the State, to a seat in the State senate, 
and to be present in the joint assembly, and to vote for a United States Senator? 

Those opposing the claim of Mr. DuPont insist no such power exists, and the rea¬ 
son advanced in support of this contention is that the senate of Delaware passed 
judgment upon Watson’s qualifications as a member of that body, and that such 
decision is conclusive. 

Counsel, in opposition to the claim of Mr. DuPont, cite section 6, Article II, of the 
constitution of the State of Delaware, as follows: 

“Each house shall judge of the elections, returns, and qualifications of its own 
members.” 

Then, conceding that in order to conclude the United States Senate, the State senate 
must have either actually or constructively acted, and rendered judgment upon the ques¬ 
tion of his right to a seat therein, it is by the opposition assumed, and the declaration 
is made, that such action was had, such judgment in this case was rendered , and hence 
the Senate of the United States is concluded. 

Your committee deny this contention. They deny that the Delaware senate ever 
at any time after Watson became governor, either actually or constructively , passed 
upon his qualifications to a seat in that body. And it is upon this branch of the case 
there is any controversy whateveT as to the facts. 

It is conceded by your committee that Governor Watson, after having studiously 
refrained from attempting to exercise any of the functions of senator or speaker of 
the senate from the date of his inauguration as governor, April 9, 1895, until May 9, 
1895, a fact also conceded by those opposing the claim of Mr. Du Pont, did on this 


828 


SENATE ELECTION CASES. 


latter date, May 9, 1895, the legislature being about to adjourn sine die , enter the 
senate chamber a few minutes before the hour of 12 o’clock meridian, at which time 
the senate was to proceed to the hall of the house of representatives to meet the 
members of the house in joint assembly for the purpose of electing a United States 
Senator, and after conversing with two or more members until a few moments before 
12 o’clock meridian, did then, the president pro tempore leaving the chair, take the 
chair of speaker of the senate, all the business of the senate having been concluded, 
and immediately made this announcement: 

“The hour of 12 having arrived, the senate will proceed to take part in the joint 
assembly.” 

That, while occupying the chair as speaker of the senate, Governor Watson took 
no part whatever in any of the legislative functions of the senate, other than what 
related to proceeding to the hall of the house of representatives by the senate for 
the purpose of attending the joint assembly to elect a United States Senator. These 
are the facts and all the fads in reference to this matter, as found by your committee. 

THE SENATE .JOURNAL ENTRIES ARE CONCLUSIVE AS AGAINST EX PARTE AFFIDAVITS AS 
TO WHAT OCCURRED IN THE SENATE MAY 9, 1895. 

This brings us to a consideration of the seventh proposition hereinbefore stated, 
namely: That the journal entries of the proceedings of the Delaware senate on May 
9, 1895, are conclusive as to the number and names of senators present, the motions 
submitted, the votes cast, and of all the proceedings had, and can not be contradicted 
by ex parte affidavits. 

The law is well settled by more than 120 adjudicated cases in the courts of last 
resort in more than twenty of the States in the American Union, as also by the 
Supreme Court of the United States, that where a State constitution prescribes such 
formalities in the enactment of laws as require a record of the yeas and nays on the 
legislative journals, those journals are conclusive as against, not only a printed statute 
published by authority of law, but also against a duly enrolled act. The principle 
now contended for falls far short of going to this extent. 

The question involved in the case under consideration is not whether the legisla¬ 
tive journals are conclusive against a printed statute or an enrolled act, but whether 
they are conclusive as against ex parte affidavits by which such journals are sought 
to be contradicted. 

Your committee, without indulging in argument upon this point, beg to attract 
attention to the following authorities, national and State, which hold to the doctrine 
that legislative journals are conclusive as against a duly enrolled act. Surely, if this 
be so, it can not be otherwise than they are conclusive against ex parte affidavits, the 
reason for this application of the rule being infinitely stronger than for the other. 

The following is a list of the authorities, 124 in number, relied on. It is believed 
few Federal or State authorities can be found to conflict with these. Decisions can 
be found, as, for instance, in Field v. Clark (143 U. S., 649-678), to the effect that 
where the constitution contains no provision requiring entries on the journal of par¬ 
ticular matters, such, for example, as calls of the yeas and nays on a measure in 
question, the enrolled acts can not in such case be impeached by the journals. That, 
however, is a very different proposition from the one involved here. 

The authorities are as follows: 

Alabama.— 28 Ala , 466; 43 id., 721; 48 id., 115; 54 id., 599; 57 id., 49; 58 id., 546; 
60 id., 361; 77 id., 597; 77 id., 608; 78 id., 411; 78 id., 517; 82 id., 562. 

Arkansas. —19 Ark., 250; 27 id., 266; 28 id. 317; 31 id., 701; 32 id., 496; 33 id., 17; 
35 id., 237; 40 id., 200; 41 id., 471; 44 id., 536; 48 id., 370; 49 id., 325; 51 id., 559. 

California. —8 Sawyer, 238; 54 Cal., Ill; 69 id., 479; 80 id. 211. 

Colorado. —5 Colo., 525; 11 id , 489. 

Florida.-2 0 Fla., 407; 24 id., 293. 

Illinois. —14111., 297; 17id., 151; 19id.,283; 19 id., 324; 25 id., 181; 35id., 121; 38 
id., 174; 43 id., 77; 44 id., 91; 45 id., 119; 62 id., 253; 63 id., 157; 68 id., 160; 70 id., 
166; 70 id., 659; 74 id., 361; 77 id., 11; 81 id/, 288; 93 id., 191; 98 id., 156; 120 id., 
332; 122 id., 420; 94 U. S., 260; 103 U. S., 683; 103 U. S., 697; 105 U. S., 667. 

Kansas. —12 Kans., 384; 15 id,, 194; 17 id., 62; 24 id., 700; 26 id., 724; 28 id., 243; 
35 id., 545; 41 id., 200. 

Maryland. —41 Md., 446; 42 id., 203; 48 id., 292. 

Michigan.—2 Gibbs, 287, 1 Douglass, 351; 2 id., 191, 13 Mich., 481; 16 id., 254; 22 
id., 104; 47 id., 520; 55 id., 94; 59 id., 610; 64 id. 385; 72 id., 446; 79 id., 59; 79 id., 
595: 80 id., 598; 83 id., 13, 84 id., 408.. 

Minnesota. —2 Minn., 330; 24 id., 78; 31 id., 472; 38 id., 143; 45 id., 451. 

Missouri. —60 Mo., 33; 71 id., 266. 


HENRY A. DU PONT, OF DELAWARE. 829 

Nebraska. —4 Nebr., 503; 9 id., 125; 9 id., 462; 17 id., 389; 18 id., 236; 20 id., 96; 
21 id., 647; 24 id., 586. 

Ohio.— 5 Ohio, 358; 3 Ohio State, 475; 20 id., 1; 44 id., 348; 45 id., 254. 

Oregon. —11 Oreg., 67, 71; 14 id., 365. 

South Carolina.— 2 S. C., 150; 11 id., 262; 12 id., 200; 13 id., 46. 

Tennessee. 3 Lea, 332; 4 id., 608; 6 id., 549; 86 Tenn., 732; 87 id., 163. 

United States.— 94 U. S., 260; 103 id., 683; 103 id., 697; 105 id., 667. 

Virginia. —79 Va., 269. 

West Virginia. —5 W. Va., 85. 

Wisconsin.— 20 Wis., 501; 45 id., 543; 64 id., 323. 

Wyoming. —1 Wyo., 85; 1 id., 96. 

The constitution of Michigan contained the following clause: 

“No public act shall take effect or be in force until the expiration of ninety days 
from the end of the session at-which the same is passed, unless the legislature shall 
otherwise direct, by a two-thirds vote of the members elected to each house.” 

In Peoples. Mahany (13 Mich., 481, 492) Mr. Justice Cooley, delivering the opinion 
of the court, said: 

“As the court are bound judicially to take notice of what the law is, we have no 
doubt it is our right, as well as our duty, to take notice not only of the printed stat¬ 
ute books, but also of the journals of the two houses, to enable us to determine 
whether all the constitutional requisites to the validity of a statute have been com¬ 
plied with. The printed statute is not even prima facie valid, when other records, 
of which the court must equally take notice, show that some constitutional formality 
is wanting.” 

The constitution of California contained the following provision: 

“No bill shall become a law without the concurrence of a majority of the members 
elected to each house.” 

In the Railroad Tax Case (8 Sawyer, 238, 293) Judge Sawyer, with the concur¬ 
rence of Mr. Justice Field, said: 

“On March 4 the house considered the senate amendment, and, upon a call of the 
yeas and nays, as required by the constitution, thirty-nine members voted for the 
amendment, and thirty-two against it, there being four paired and not voting; thus 
the votes in favor of the amendment were two less than a majority of members 
elected to the house, and the bill failed. * All this appears upon the journal. - * The 
bill, therefore, was never constitutionally passed, and never became a law. Under 
the decisions of the courts, upon constitutional provisions in all respects similar to 
that in the present constitution of California, it is settled that the court, to inform 
itself, will look to the journals of the legislature.” 

In Spangler v. Jacoby (14 Ill., 297, 300) the court said: 

“The act in question was signed by the speakers of the two houses, and it re¬ 
ceived the assent of the executive. Prima facie, therefore, it became a law. But the 
journal of the house of representatives fails wholly to show that it was ever put 
upon its final passage in that house; in other words, it does not appear that it passed 
with the concurrence of a majority of the members elect of that body. The act did 
not become a law in pursuance of the provisions o£the constitution, and it is there¬ 
fore null and void. The judgment is reversed.” 

In Berry v. R. R. Co. (41 Md., 446, 463, 465), Judge Alvey, delivering the opinion 
of the court, said: 

“The question has repeatedly arisen in several of the State courts of the highest 
authority, and in all cases, with but few exceptions, it has been held that neither 
the printed statute ( book nor the ordinary authentication of the statute after its 
passage would preclude the inquiry into the fact whether the statute, as published, 
had in truth passed the legislature; and, as evidence upon the question, the legis¬ 
lative journals and the bills as acted upon by the legislative assemblies have been 
consulted. * We can have no doubt whatever that the third section of the act in 
question, as that act was sealed and approved by the governor, is materially differ¬ 
ent from the third section of the act as it passed the two houses of the legislature, 
and we must therefore declare that particular section of the act to be null and void.” 

The constitution of the State of Delaware, Article II, section 17, contains the fol¬ 
lowing clause: 

“No act of incorporation, except for the renewal of existing corporations, shall 
be hereafter enacted without the concurrence by two-thirds of each branch of the 
legislature.” 

This provision requires the yeas and nays to be recorded in the journals on the 
passage of every new act of incorporation. 


830 


SENATE ELECTION CASES. 


THE DELAWARE SENATE DID NOT, EITHER ACTUALLY OR CONSTRUCTIVELY, JUDGE OF THE 

QUALIFICATIONS OF GOVERNOR WATSON TO A SEAT IN THE SENATE AT ANY TIME 

SUBSEQUENT TO HIS BECOMING GOVERNOR OF THE STATE. 

As bearing upon the question as to what occurred either of a legislative or quasi 
judicial character in the Delaware senate on May 9, 1895, Mr. Du Pont presents a cer¬ 
tified copy of the senate journal entries of the proceedings of the senate of that date 
(Doc. 9, Part II, pp. 431), and insists such journal entries are conclusive upon that 
question. Mr. Du Pont, however, as is his right, presents also the ex parte affidavits 
of certain State senators and others, not for the purpose, however, of contradicting 
but confirming such journal entries; while those opposing Mr. Du Pont present cer¬ 
tain ex parte affidavits tending strongly to impeach and contradict such journal entries 
in certain respects. 

Should these affidavits tending to impeach the journal entries be considered as 
competent evidence, then there is a slight conflict of testimony in respect to the exact 
time and manner in which Governor Watson attempted to resume and did resume 
his seat as speaker of the senate on said 9th day of May, 1895. 

Your committee, however, while protesting such ex parte affidavits can not be con¬ 
sidered in so far as they tend to impeach the journal entries , regard this conflict as imma¬ 
terial and as not in any manner materially affecting the merits of the case, whatever 
view may be taken of the testimony. 

Upon the part of those opposing Mr. Du Pont and denying his right to a seat in 
the senate it is contended, which contention it is sought to maintain by these ex parte 
affidavits contradictory of the senate journal entries, and which is, in the judgment 
of your committee, not sustained, but, on the contrary, clearly contradicted by the 
senate journal entries and other evidence submitted, except so far as hereinbefore 
conceded, that Governor Watson entered the senate chamber on said 9th day of May 
“between the hours of 11 and 12 o’clock”—just how long before 12, whether fifty- 
nine minutes or five seconds before, is not stated in any of the affidavits filed—the 
senate being in session, and took the chair as speaker of the senate; that he presided 
over the senate until 12 o’clock m., the hour for the two houses to convene in joint 
assembly; how long he so presided, whether fifty-nine minutes or one minute or one m 
second , is not stated in any of the affidavits filed, nor is it disclosed by the record’ 
that while he presided over the senate, it is claimed in one or more of these affida¬ 
vits, he “voted in the affirmative upon at least one corporation bill ,” and declared that 
such bill had passed the senate, it having received the required constitutional major¬ 
ity. What corporation bill it was which it is alleged he so voted on is not disclosed, 
either by the affidavit of Governor Watson himself, which is filed in the case, or by 
any other testimony. 

It is further claimed he, while presiding in the senate, “put motions made by 
senators;” but what motion or motions he so put si not stated either in briefs of 
counsel or in any of the evidence submitted. In so far as these several affidavits filed 
in opposition to Mr. Du Pont relate to the exact time when Governor Watson 
assumed the speaker’s chair in the senate they are not contradictory of the affidavits 
filed by Mr. Du Pont. The lattqr say it was after all the legislative business was 
ended and just as the senate was about to proceed to the hall of the house of repre¬ 
sentatives to take part in the joint assembly (which all agree was 12 m.), while the 
former are to the effect that he entered the senate chamber between the hours of 11 
and 12 o'clock —how many moments before 12 m. is not stated—and that he, of course, 
subsequently took the chair. 

That precisely what Governor Watson says on this subject may be readily seen, 
your committee present herewith his affidavit in full: 

“AFFIDAVIT OF WILLIAM T. WATSON, SPEAKER OF THE SENATE OF THE STATE OF 

DELAWARE. 

“State of Delaware, Kent County , ss: 

“Be it remembered that on this 28th day of January, A. D. 1896, personally came 
before me, William E. Riggs, jr., a notary public of the State of Delaware, resident 
in Kent County, William T. Watson, who, being by me duly sworn according to law, 
did depose and say that he was elected speaker of the senate on the 1st day of Janu¬ 
ary, A. D. 1895, and on the 9th day of April of the same year, after the death of 
Joshua Marvil, the duly elected and qualified governor of the State of Delaware, 
assumed the exercise of the office of governor; that on the 9th day of May, A. D. 
1895, between the hours of 11 and 12 o' clock m. , this affiant entered the senate chamber’ 
whereupon William T. Records, speaker pro tempore, vacated the chair, and he, this 
affiant, took the same and presided over the senate until the hour for the two houses 
to assemble in joint meeting arrived, and then announced the same and proceeded at 


HENRY A. DU PONT, OF DELAWARE. 


831 


the head of the senators into the hall of the house of representatives, where he pre¬ 
sided over the joint assembly from the beginning to the end thereof and voted upon 
all questions which arose during the session, no objection having been made to his 
so presiding or voting until at or about the time the last ballot was taken, when 
senator Alnchs read a written protest against his right to so vote and preside; that while 
he presided over the senate on that day in its chamber he voted upon one hill at least 
and announced its passage by the senate; that he received and put motions made by 
senators and was addressed as speaker of that body, and that no objection from any 
quarter was made to his acting as presiding officer of the senate and otherwise 
participating in the proceedings thereof while in session during the hour aforesaid. 

“WILLIAM T. WATSON. 

“Sworn to and subscribed before me the day and year aforesaid. 

“I> EAL -] “WILLIAM E. RIGGS, Jr., 

“Notary Public 

It will be seen Governor Watson admits in this affidavit his right to vote and 
preside in said joint assembly was challenged in writing. 

SENATE JOURNAL ENTRIES AND EX PARTE AFFIDAVITS. 

As bearing upon this question of fact Mr. Du Pont has presented the following 
testimony: 

(1) A copy of the journal entries of the proceedings of the senate of that date. 
(See Senate Document No. 9, part 2, first session Fifty-fourth Congress.) And also, 
in corroboration of and support of senate journal entries, the following: 

(2) The affidavit of John M. C. Moore, a State senator of the Delaware senate from 
Sussex County. (See Doc. id., 31.) 

(3) The affidavit of George F. Pierce, a State senator of the Delaware senate from 
Sussex County. (Doc. id., 33.) 

(4) The affidavit of Samuel Alrichs, a State senator of the senate of Delaware from 
Newcastle County. (Doc. id., 34.) 

(5) The affidavit of Edgar T. Hastings, clerk of the house of representatives of the 
State of Delaware. (Doc. id., 35.) 

(6) The affidavit of John S. Prettyman, jr. (Doc. id., 36.) 

(7) The affidavit of Frank Reedy. (Doc. id., 37.) 

(8) The affidavit of George L. Townsend. (Doc. id., 38.) 

(9) The affidavit of William Michael Byrne. (Senate Doc. 9, Fifty-fourth Congress, 
first session, part 4, pp. 1-3.) 

(10) Second affidavit of State Senator Samuel Alrichs. (Doc. 9, part 6, p. 1.) 

While in opposition to these journal entries, and contradictory thereof and of these 

several affidavits, those opposed to the claim of Mr. DuPont have presented the fol¬ 
lowing: 

(1) The affidavit of Robert J. Hanby, State senator in the senate of Delaware from 
the county of Newcastle. (Doc. 9, part 3, p. 1.) 

(2) The affidavit of William T. Records, State senator from Sussex County and 
speaker pro tempore of the Delaware senate. (Doc. 9, part 3, p. 2.) 

(3) The affidavit of Charles A. Hastings, clerk of the senate of the State of Dela¬ 
ware. 

(4) The affidavit of John B. Pennington. (Doc. 9, part 3, p. 2.) 

(5) The affidavit of Edward D. Hearne, assistant to Charles A. Hastings, the clerk 
of the senate. (Doc. 9, part 3, p. 4.) 

(6) The affidavit of William T. Watson, claiming to be speaker of the senate of the 
State of Delaware. (Doc. 9, part 5, p. 1.) 

(7) The affidavit of Cyrus Cort, chaplain of the senate of the State of Delaware for 
the session of 1895. (Doc. 9, part 5, p. 2.) 

For the convenience of the Senate this copy of the senate journal entries of the 
proceedings of the senate of the State of Delaware on May 9, 1895, also these affi¬ 
davits, also the certificate of the election of Mr. DuPont, signed by the speaker of the 
Delaware house of representatives and attested by the clerk of the house (see Doc. 9, 
pp. 1-5), together with the affidavits of Edgar T. Hastings, clerk of the Delaware 
house of representatives, Henry McMullen, speaker of said house, and Samuel Alrichs, 
a State senator, attached thereto (Doc. 9, pp. 3-8), are printed together in an appen¬ 
dix hereto attached, marked A, and made a part of the report of your committee. 

It will be observed from an inspection of the journal entries of the proceedings of 
the Delaware senate of May 9, 1895, that at the convening of the senate at 11 o’clock 
a. m., Thursday, May 9, 1895, but 8 senators were present, including “Mr. Speaker 


832 


SENATE ELECTION CASES. 


pro tempore .” No mention is made of the presence of Senator Watson or Speaker 
Watson (Doc. 9, part 2, p. 4), while the names making up the 8 senators alleged to 
be present are all given, as follows: Messrs. Alrichs, Fenimore, Hanby, Harrington, 
Moore, Pierce, Pyle, Mr. Speaker pro tempore. 

It will be noticed, furthermore, that the yeas and nays were taken that date on 
but six different measures, as follows: 

(1) On house bill entitled “An act to amend sections 5 and 10 of the act entitled 
‘An act to incorporate the town of Frederica.’ ” 

On this question there were, yeas, 8; nays, 0. 

(2) On house bill entitled “An act to incorporate the Acetyline Light Company.” 

On the'passage of this bill the vote was, yeas, 8; nays, 0. 

(3) On house bill entitled “An act to incorporate the Silverbrook Cemetery Com¬ 
pany,” on the passage of which the vote was, yeas, 8; nays, 0. 

(4) On substitute for house bill entitled “An act to incorporate the Masonic Hall 
Company of Lewes.” 

On the passage of this bill the vote was, yeas, 7; nays, 0—Senator Hanby being 
either absent or not voting. The 7 voting for the bill did not include the name of 
Watson. 

(5) On house bill entitled “An act relating to certain lands of the Wellman Iron 
and Steel Company, in Newcastle County.” 

On the passage of this bill the vote was, yeas, 8; nays, 0. 

(6) On house bill entitled “An act to incorporate the Calhoun-Jones Company, of 
Georgetown, Sussex County.” 

On the passage of this bill the vote was, yeas, 8; nays, 0. 

The foregoing were the only bills placed upon passage in the senate on May 9, 1895, 
on which the yeas and nays were taken and entered on the journal; and in each 
instance, except one, there were but 8 votes cast in all, including the speaker pro 
tempore, so called, and entered on the journal; and Watson was not present, either 
as senator or speaker of the senate, nor is his name anywhere mentioned, nor is his 
vote recorded on any of these bills, nor is he named as putting any motion to the 
senate or transacting any other business whatever. 

In the one case above mentioned—that is, on the passage of the house measure 
entitled “An act to incorporate the Masonic Hall Company of Lewes”—there were 
but 7 votes cast, including the speaker pro tempore , Senator Hanby not voting. Wat¬ 
son was not present or voting. 

The only other proceedings had in the senate on that date, May 9, 1895, subse¬ 
quent to the vote on the last house bill, on which the yeas and nays were called as 
above—that is, on the house bill entitled “An act to incorporate the Calhoun-Jones 
Company, of Georgetown, Sussex County” (Doc. 9, part 2, p. 7)—are best stated by 
quoting in htec verba the whole of the subsequent journal entries of the proceedings 
of that day, as follows: 

“ Ordered , That the house be informed thereof, and the bill returned to that body. 

“Mr. Hastings, clerk of the house, being admitted, informed the senate that the 
house had passed and requested the concurrence of the senate in the following house 
bill entitled ‘An act to divorce Benjamin O. Jacobs from his wife, Victoria W. Jacobs.’ 

“Mr. Hastings, clerk of the house, being admitted, presented for the signature of 
the speaker of the senate the following duly and correctly enrolled house bills, the 
same having been signed by the speaker of the house: 

“An act to incorporate the Silverbrook Cemetery Company. 

“An act relative to bonds, undertakings, and other obligations with surety or sure¬ 
ties, to the acceptance as surety or guarantor thereupon of companies qualified to act 
as such and to provide a uniform system of procedure by and standard of qualifica¬ 
tions for such companies. 

“Mr. Hastings, the clerk of the house, being admitted, returned to the senate the 
following duly and correctly enrolled senate bill, the same having been signed by 
the speakers of both houses: 

“An act to divorce Ellen Tatem Pusey from her husband, Joshua B. Pusey. 

“Mr. Hastings, clerk of the house, being admitted, informed the senate that the 
house had passed the following senate bills: 

“An act relating to certain lands of the Wellman Iron and Steel Company, in 
Newcastle County. 

“An act to incorporate Calhoun-Jones Company, of Georgetown. 

“An act to incorporate the North American Construction Company. 

“An act to divorce Elzey D. Richardson from his wife, Jennie A. Richardson. 

“And returned the same to the senate.” 

From the above record it will be observed no further measures were placed upon 
their passage, either by a call for the yeas and nays or otherwise. It was simply 
ordered that the house be advised of the passage of the above-named house bills. 


HENRY A. DU PONT, OF DELAWARE. 


833 


The clerk of the house informed the senate— 

(1) That the house had passed a bill to divorce Benjamin O. Jacobs from his wife, 
Victoria W. Jacobs. 

(2) He presented for the signature of the speaker two bills. 

(3) He announced that two certain bills had been signed by the speakers of both 
houses. 

(4) He informed the senate that the house had passed four senate bills, and he 
returned the same to the senate. 

From the beginning, therefore, until the end of the journal entries of the proceed¬ 
ings- of the Delaware senate on May 9, 1895, there is not only no mention of the fact 
that Governor Watson was present and voted on any corporation or any other bill, 
either in the affirmative or negative, or that he put any motion or announced any 
result, but, on the contrary, the record discloses the fact that he was not present, or 
at least did not vote on any roll call, during that entire day. 

The only other bills placed on their passage in the senate May 9, 1895, other than 
those above mentioned, on which the yeas and nays were taken, and not one of which 
was a corporation bill, and all of which were acted upon prior to the action upon any 
one of the bills above named, on which the yeas and nays were called, were the 
following: 

(1) An act relating to the salary of the attorney-general. (Doc. 9, part 2, p. 4.) 

(2) An act for the relief of Robert Cook, deceased. (Id.) 

(3) Joint resolutions in relation to paying William T. Smithers, and John D. 
Hawkins, secretary of state. (Id.) 

(4) An act to prevent bogus sales within the State of Delaware, etc. (Doc. id.) 

Your committee, therefore, in response to the contention of those opposing Mr. 

DuPont, to the effect that the Delaware senate, as a matter of fact, acted upon and 
passed judgment May 9,1895, on the qualifications of Governor Watson to a seat in the 
senate, say: 

First. This is a question which can alone be determined by an inspection of the 
record of the journal entries of the senate, which record can not be contradicted by 
ex parte affidavits; and that such record is not merely silent on the subject, but 
affirmatively shows that Governor Watson took no part whatever, either as senator 
or speaker of the senate, in any of the proceedings of the senate on May 9, 1895, and 
furthermore that no question as to his qualifications to a seat in the senate was sub¬ 
mitted or acted upon, either directly or constructively; and 

Second. Were it proper to admit ex parte affidavits in opposition to the record, a 
proposition denied by your committee, even then, giving to such affidavits every 
consideration and weight which should be accorded to them as competent testimony 
in the case, and taking into consideration all the evidence presented on both sides, 
the preponderance of such evidence is clearly to the effect that, as a matter of fact 
and law 7 , the Delaware senate did not , on May 9, 1895, in any manner act or pass 
judgment, either actually or constructively , upon the qualifications of Governor Wat¬ 
son to a seat in the senate, and hence, for this reason, the Senate of the United 
States is not concluded from determining, in its own right, as to his qualifications to 
such seat. 

THE JOINT ASSEMBLY HAD NO POW r ER TO ADJUDICATE UPON THE QUALIFICATIONS OF 

THE GOVERNOR TO A SEAT IN THE STATE SENATE, DID NOT ATTEMPT TO DO SO, BUT 

PROTESTED AGAINST niS RIGHT. 

The joint assembly for the purpose of electing a Senator had no powder to judge of 
the right of the governor to a seat in the State senate; no power whatever resided in 
that body to judge of his qualifications, and his presence there and voting and pre¬ 
siding could not possibly have conferred any rights, even if there had been acqui¬ 
escence on the part of the joint assembly. But there was no acquiescence, but, on 
the contrary, a vigorous protest. 

The record shows (see affidavit of Senator Alrichs, supra) that he, on behalf of 
himself and fourteen other members of the joint assembly who had voted for Mr. 
DuPont, presented in said joint assembly the following protest: 

“After the last ballot had been taken in said final joint assembly and before the 
two houses separated I, on behalf of myself and the fourteen other senators voting 
for the said Henry A. DuPont, arose and presented the following challenge, protest, 
and demand: 

“‘I very respectfully challenge the correctness of the announcement of this vote 
and divers preceding Votes, and do now most respectfully insist and demand that 
Henry A. DuPont be now declared elected Senator for the unexpired term of six 
years commencing on the fourth day of March, A. D. 1895, inasmuch as it is now 
respectfully insisted that this joint assembly consists of twenty-nine members, the 


S. Doc. 11-53 



834 


SENATE ELECTION CASES. 


honorable gentleman now undertaking to preside and participate therein being gov¬ 
ernor of the State, and not now a senator.’ 

“After the presentation of the foregoing challenge, protest, and demand, and with¬ 
out taking any further ballot, the joint assembly finally separated, with a declara¬ 
tion from William T. Watson that no person had been elected Senator in Congress 
for said term. 

“SAMUEL ALRICHS. 

“Sworn and subscribed before me this twenty-fifth day of November, A. D. 1895. 
And witness my hand and official seal. 

“[seal.] John H. Frazer, Notary Public 

Even had Watson been senator and speaker of - the senate on May 9, 1895, both de 
facto and dejure , he would not from these circumstances have had any preference 
right over that of any other member of the joint assembly to preside over that body. 
He would have been there simply as a senator, without any authority whatever in 
virtue of any law to preside, except by the consent of his associates. This consent 
was not given, but protested against. 

THE SENATE OF THE UNITED STATES IS NOT CONCLUDED BY ANY CONSTRUCTION PLACED 

UPON THE CONSTITUTION OF THE STATE OF DELAWARE CONCERNING THE QUESTION 

AS TO WHETHER A CERTAIN SEAT IN THE SENATE IS, UNDER THE CONSTITUTION OF 

THAT STATE, OPEN TO OCCUPATION, AND THE RESULTANT RIGHT OF THE GOVERNOR TO 

OCCUPY SUCH SEAT. 

But your committee respectfully insist that any judgment, either actual or con¬ 
structive, of the Delaware senate as to the right of a person to a seat in such senate to 
be conclusive on the Senate of the United States, must relate to a seat in the senate 
subject to occupation. 

The senate of the State of Delaware, while possessing the exclusive right to deter¬ 
mine as to the qualifications of its members to all seats open to be filled , does not include 
the right or power upon the part of such senate to judge as to the number of seats in 
that body, or as to what shall constitute a constitutional vacancy or a constitutional 
suspension of the right of a particular seat to be filled by anyone, either temporarily 
or permanently. 

The authority given the senate in virtue of the constitutional provision is to judge 
of the qualifications of members who apply for admission to seats, which seats are pro¬ 
vided for by the constitution, and not by the judgment of the senate. 

If, therefore, the senate undertakes to determine either that there is a tenth place 
in the Senate open to occupation by a member, and proceeds to fill that tenth place 
with a member, when the constitution declares that the senate shall consist of but 
nine members, or if it undertakes to declare that one of the nine seats is open to 
occupation, and proceeds to fill that seat, when the constitution declares that, by 
reason of the senator who occupied that seat having under the constitution become 
governor, such seat is not open to occupation, and can not be held or its f unctions exercised 
by such governor while he continues to hold and exercise the office of governor, then, in 
either of such cases, it is respectfully submitted, the judgment of the senate of the 
State of Delaware, however formal and solemn such a judgment may have been, 
does not conclude the Senate of the United States. 

THE DISTINCTIONS BETWEEN THE DUPONT CASE AND THE TURPIE CASE. 

The question for consideration here is widely different from that presented to this 
committee in the Turpie case in the first session of the Fiftieth Congress. 

In that case there was no statutory, much less constitutional, question involved as 
to the number of seats in the Indiana senate open to occupation. The rights of two 
sets of claimants to two different seats confessedly open to occupation were in issue. 
There was no question, constitutional, statutory, or otherwise, as to their right to be 
filled or as to the duty upon the part of the senate to fill them, provided persons 
having the requisite qualifications were legally elected and returned. It was not 
only the right, but the duty of the Indiana senate, under the constitutional provi¬ 
sions in that State, to judge as to which set of claimants was legally elected and 
returned, and whether these had the proper qualifications. In the performance of 
this duty the Indiana senate held the two sitting members were not entitled to their 
seats and that the two persons claiming the same were, and the sitting members were 
ousted and the claimants seated. And this committee and the Senate very properly 
held that in such case the action of the State senate was conclusive. 

Here the question rises to one of infinitely greater importance, involving an inquiry 


HENRY A. DU PONT, OF DELAWARE. 


835 


not only as to the qualifications of a person claiming a seat , but the question as to 
whether, under the constitution of the State of Delaware, there was any seat to be 
occupied. Argument to show the distinction between the two cases is unnecessary. 
The mere statement of the difference in the cases carries with it all the argument 
required. 

But still further. In the Indiana case it was not questioned that the senate of 
Indiana had actually passed upon the question and judged actually of the right of the 
two claimants who were admitted to the seats to which they were admitted, while 
here it is clear there was no judgment of the senate of the State of Delaware, either 
actual or constructive , upon the right of the governor of the State of Delaware to hold 
or exercise the duties of senator. 

TIIE SEAT FILLED BY GOVERNOR WATSON IN THE STATE SENATE OF DELAWARE, MAY 9, 

1895, WAS NOT, IN ANY CORRECT INTERPRETATION OF THE DELAWARE CONSTITUTION, 

OPEN TO OCCUPATION ON THAT DATE. 

It is clear, if under the constitution of the State of Delaware, as your committee 
believe it is, that one of two things is true: Either that the office of senator held by 
Mr. Watson became absolutely vacant on his accession to the office of governor, or, 
otherwise, that his right to exercise the functions of senator was held in abeyance and 
absolutely suspended for and during the time he should continue to exercise the functions of 
governor. Then, in the former case, there was a vacancy in the office of senator which 
could only be filled by election, and the right of the governor to fill it was one not 
open to the consideration or determination of the senate, because that matter is 
already determined by the constitution, while in the latter case there is by the pro¬ 
visions of the constitution no seat open to occupation. It can not in such case be filled 
by anyone , much less by the governor , and if, the senate undertakes to fill it, either 
with the governor or anyone else, it is a judgment that is ultra vires and does not 
conclude the Senate of the United States. 

In this connection it may be conceded that instances might occur where the judg¬ 
ment of a State senate as to the qualifications of one of its members may be binding 
on the Senate of the United States, although confessedly the effect of such judgment 
may be to admit a person to a seat who is lacking in an essential qualification. But 
it proceeds upon the theory that when certain facts are found to exist, although such 
finding may be erroneous, the judgment is binding. As, for instance, the constitu¬ 
tion of the State of Delaware prescribes as a qualification for State senator that he 
shall be 27 years of age. Suppose the senate admit a person to a seat in the senate 
who, as a matter of fact, is but 20 years of age, but there is nothing in the record, 
nothing in the judgment of the senate passing upon his qualifications that discloses 
the fact that he was but 20 years of age. In such case it is believed the judgment of 
the senate would conclude the United States Senate. But in such case suppose the 
record, the judgment of the senate upon the question of qualification, found as a fact 
that the applicant was but 20 years of age, and then on such finding admitted him 
to a seat, is it not entirely clear that such a judgment would not be conclusive upon 
this body? 

But three other States, namely, Pennsylvania, Maine, and Colorado, have ever 
had constitutions embracing in corresponding provisions the same qualifying words 
of the Delaware constitution, namely, “ during his continuance in office.” Therefore 
it is that in those States only can we look for judicial decisions or authorities on the 
question whether Governor Watson can exercise the office of senator during his 
incumbency of the office of governor. 

On the 14th of January, 1830, Joshua Hall was chosen president of the Maine sen¬ 
ate. Soon thereafter the governor died, and he became the governor. Sixteen 
senators, including Mi^.Hall, had been admitted and sworn. On the 26th of Janu¬ 
ary the senate decided that there were four vacancies. Under the constitution these 
vacancies were to be filled by a joint assembly of the two houses of the legislature. 
On February — the house of representatives sent a message to the senate requestiug 
that body to meet the house in joint assembly for the election of senators to fill the 
vacancies. On the 2d of February, the senate being in session, a senator moved an 
adjournment to enable the senate to meet the representatives in joint assembly. 
Mr. Hall, who was then exercising the office of governor, appeared in the senate and 
claimed the right to act as president. The vote was taken by yeas and nays. Hall 
voted in the negative. His vote being counted the result was, yeas 8, nays 8, and 
the motion was lost. On the 13th of February Mr. Jonathan G. Hunton, having 
been in the meantime elected governor, submitted certain questions to the supreme 
court, in pursuance of the Maine constitution. One of these questions was the 
following: 

“ 2d. Has the president of the senate, when the office of governor is vacant, and 


836 


SENATE ELECTION CASES. 


when he ought to be acting as governor, a right to preside and vote at the senate 

board?” , . , . . 

The answer to this question was given by the chief justice, with the concurrence 
of the other justices, in the following words: 

“As to the second question my opinion is that, while the president of the senate, in 
virtue of his office as such, is clothed with the power of exercising the office of gov¬ 
ernor, he has no right to preside over the senate or to vote as a member of that body. 
(Opinion of the justices, 7 Greenleaf, 483.)” 

The provision of the Maine constitution, it will be seen, isin substance and effect, 
in fact almost literally, similar to that of the Delaware constitution. 

It is as follows: 

“Art. IV, Sec. 14. Whenever the office of governor shall become vacant by death, 
resignation, removal from office, or otherwise, the president of the senate shall exer¬ 
cise the office of governor until another governor shall be qualified.” 

There is a provision of the Maine constitution which to some extent impairs, but 
by no means destroys, the value of the decision of the Maine court, supra , as an 
authority in the case now under consideration. It is to the effect that while the pres¬ 
ident of the senate exercises the office of governor his duties as president of the senate 
shall be suspended and a president pro tempore elected. The provision is not that his 
powers and duties as president of the senate shall be suspended, but merely that his 
duties as such shall be suspended. It is very clear, of course, that if a man’s power 
to perform certain acts is suspended his obligation to perform them must also be sus¬ 
pended. He can not be charged with the obligation while stripped of the power to 
perform them. But it is not so clear that the suspension of the obligation is also the 
suspension of his power to perform the acts. He may have the power without being 
required to exercise it, except at his discretion or convenience. It is not clear that the 
suspension of the obligation to act as president of the Maine senate did not leave it 
in the power of the officer to perform or not perform, at his discretion or conven¬ 
ience, the duties, not of senator, but of president of the senate. 

But if this peculiar provision of the Maine constitution does, in truth, suspend the 
acting governor’s power and duty to preside over the senate, it certainly does not 
suspend or purport to suspend his power, or his duty, to vote as senator. If his power 
or duty to vote as senator is suspended, it must be suspended bv some other pro¬ 
vision of the State constitution. That other provision is to be found in a clause, 
which is common to both the Maine and the Delaware constitutions, to the effect 
that “no person holding any office, under the State, shall, during his continuance 
in office, be a senator or representative.” And this gives great value and weight to 
the Maine decision as an authority in the case under consideration, for it makes the 
Maine case and the Delaware case, so far as this point is concerned, closely analo¬ 
gous. The prohibition against voting as senator is the same in both constitutions. 

The following is the provision of the Maine constitution, which suspends the duty 
of the governor to preside over the senate: 

“Art. 4, Sec. 14. Whenever the office of governor shall become vacant by death, 
resignation, removal from office, or otherwise, the president of the senate shall exer¬ 
cise the office of governor until another governor shall be duly qualified; and, in case 
of the death, resignation, removal from office, or other disqualification of the presi¬ 
dent of the senate so exercising the office of governor, the speaker of the house of 
representatives shall exercise the office until a president of the senate shall have been 
chosen; and when the office of governor, president of the senate, and speaker of the 
house shall become vacant, in the recess of the senate, the person acting as secretary 
of state for the time being shall, by proclamation, convene the senate, that a presi¬ 
dent may be chosen to exercise the office of governor. And whenever either the 
president of the senate or speaker of the house shall so exercise said office, he shall 
receive only the compensation of governor; but his duties as president or speaker 
shall be suspended; and the senate or house shall fill the vacancy until his duties as 
governor shall cease.” 

THE CONSTITUTIONAL STATUS OF THE OFFICE OF A DELAWARE 
SENATOR WHO HAS SUCCEEDED TO THE OFFICE OF GOVERNOR IS 
ESSENTIALLY THE SAME AS THAT OF THE OFFICE OF A SENATOR 
OR REPRESENTATIVE IN CONGRESS DURING THE INTERVAL 
BETWEEN THE 4TH OF MARCH, THE COMMENCEMENT OF HIS 
TERM, AND THE DATE OF HIS RESIGNATION OF ANOTHER FED¬ 
ERAL OFFICE HELD BY HIM AT THE COMMENCEMENT OF HIS TERM. 

The constitutional status of the office of a Delaware senator who has succeeded to 
the office of governor would seem to be essentially the same as that of the office of a 
Senator or Representative in Congress during the interval between the 4th of March, 


HENRY A. DU PONT, OF DELAWARE. 


837 


the commencement of his term, and the date of his resignation of another Federal 
office held by him at the commencement of his term. In each case the office is in 
abeyance, whether it be characterized as a temporary vacancy or as a suspension. If in 
one case the office of State senator remains in abeyance during the State senator’s 
continuance in the office of governor, so in the other case does the office of Federal 
Senator or Representative remain in abeyance during the Federal Senator’s or Repre¬ 
sentative’s continuance in the prior Federal office. 

It is true that in one case the prior office has been actually exercised while in the 
other it has not. But this difference would not seem to affect the principle involved, 
for the following reasons: 

First. The constitutions of Delaware and the United States are, on this point, sub¬ 
stantially identical. The words of the Delaware constitution are— 

“No * * * person holding any office under * * * this State shall, during 
his continuance * * * in office, be a senator or representative.” 

The following is the corresponding clause of the Federal Constitution: 

“No person holding any office under the United States shall be a member of 
either House during his continuance in office.” 

Second, the seat in the Delaware senate which had been occupied by the governor 
must, during his incumbency of the latter office, be either (1) subject to occupation, or 
(2) absolutely vacant, or (3) in abeyance. There is no other possible status of the sena¬ 
torial office from which the speaker of the senate is transferred to the office of gov¬ 
ernor. So also the seat of the Federal Senator or Representative must, during the 
interval between the 4th of March and his resignation of his other office, be either 
(1) subject to occupation, or (2) absolutely vacant, or (3) in abeyance. If the office of 
the State senator is subject to occupation by the governor, while he is governor, so 
also is the office of Senator or Representative in Congress subject to occupation by 
the holder of another Federal office while he holds such office. If the office of Fed¬ 
eral Senator or Representative becomes absolutely and permanently vacant so also 
does the office of State senator become absolutely vacant. If the office of the Federal 
Senator or Representative is in abeyance, and the right to exercise it suspended, so also 
is the office of the State senator in abeyance and the right to exercise it suspended. 

The law provides for the payment of the salaries of the Federal Representatives 
from the commencement of their terms on the 4th of March. This means that they 
hold their office from that date, provided they hold no other Federal offices. But 
they are not sworn and do not exercise their office until Congress meets after the 
lapse of eight months. If they hold other Federal offices on or after March 4, their 
office of Representative is not absolutely vacated, but is only placed in abeyance. It 
is then in abeyance for precisely the same reason for which the office of State senator 
is in abeyance when he exercises the office of governor. In each case the office is in 
abeyance because of the temporary exercise of another office. The Federal Repre¬ 
sentative may not be sworn until the expiration of eight months after his term 
begins. But the oath does not confer the office. It is not a prerequisite to the tenure 
of the office. It is only a prerequisite to the exercise of the office. 

The decisions of the Senate and House of Representatives of the United States, 
fixing the status of the office of Senator or Representative during the interyal between 
the 4th of March and the resignation of another Federal office held on that day, will 
therefore be valuable authorities for the case now under consideration. 

James H. Lane was chosen United States Senator by the Kansas legislature in 
April, 1861. On the 20th of June, 1861, he was appointed brigadier-general of volun¬ 
teers by the President, and he accepted the office. On the 4th of July, 1861, he took 
his seat in the Senate, having previously resigned the office of brigadier-general. On 
the 8th of July, 1861, the governor of Kansas, assuming that Mr. Lane’s acceptance 
of the office of brigadier-general had vacated his office of Senator, appointed Frederic 
P. Stanton to fill the vacancy. Mr. Stanton presented his credentials and claimed 
the seat, but the Senate awarded the seat to Mr. Lane. Numerous cases in the 
National House of Representatives are to the same effect and recognize the same 
principle. 

NO QUESTION OF FACT IN THIS CASE UPON WHICH THE DELAWARE SENATE WAS CALLED 

UPON TO ACT. 

In the case under consideration there is no question of fact upon which the Dela¬ 
ware senate could act or did act, and which action, although erroneous, would con¬ 
clude the Senate of the United States; upon the contrary, the senate, assuming for 
the present it passed judgment on the qualifications of Watson, and taking the facts 
as they were and are, open, notorious, conceded by all, and disclosed as well by the 
journals of the senate, and in reference to which there can be no dispute, namely, 
that Senator and Speaker Watson was then governor, essayed to place him in a seat 


838 


SENATE ELECTION CASES. 


in the senate which the constitution on these conceded facts declares to be not subject 
to occupation, any more than would be a tenth seat in the senate when the constitution 
declares the senate shall consist of but nine members. Hence this is such a judgment, 
it is believed, as is not binding on the United States Senate. The Senate is not con¬ 
cluded by such a judgment any more than it would be concluded by a judgment 
Vvhich on its face disclosed the fact that the senate of the State of Delaware had on 
the 9th day of May, 1895, instead of admitting Governor Watson to a seat, had 
admitted President Cleveland or a tenth member to that body. 

While it is the exclusive right of the senate of Delaware to determine, or, in the 
language of the Constitution, judge, as to the qualifications of a Senator, this does not 
include the right or power on the part of such senate to declare the kind or number 
of qualifications a person must have to entitle him to a seat in the Senate. These are 
determined by the Constitution itself. The senate can neither add to nor detract from 
them, can neither increase, reduce, nor modify their number or character. What the 
senate can do, what it has a constitutional right to do, is to judge whether a particular 
person is possessed of the qualifications which the Constitution and the statutes have pre¬ 
scribed. Hence it is if the Constitution declare that a certain person for any reason 
is ineligible to a seat in the Senate, and the judgment of the senate discloses on its 
face this fact of constitutional ineligibility, and the senate thus admits to a seat a 
person whom the Constitution declares is debarred, then such judgment, however 
formal or solemn, it is submitted, does not conclude the Senate of the United States. 

As bearing upon and in support of this view, your committee attract attention to 
the following authorities: 


AUTHORITIES. 

In Prouty v. Stover (11 Kans., 235) the validity of the election of a State printer 
by a joint assembly of the Kansas legislature was assailed. The question arose 
whether the action of the State senate, admitting and retaining certain senators, was 
made conclusive of their right to sit in the senate and vote in the joint assembly by 
the constitutional provision which made each house “the judge of the elections, 
returns, and qualifications of its own members.” This action of the senate practi¬ 
cally construed the law of Kansas to recognize certain seats in the senate as subject to 
occupation. It was claimed that this was conclusive on the courts. But the court 
held that the power of the senate to judge of the elections, returns, and qualifications 
of its own members did not include the power to conclusively construe the law to 
recognize the seats as subject to occupation, or to admit or retain the occupants of 
those seats. Judge Brewer, now an associate justice of the Supreme Court of the 
United States, delivering the opinion of the court, said: 

“Defendants claim that this court can not look beyond the action of the house to 
inquire whether persons, admitted as members, were legally entitled to seats. Arti¬ 
cle 2, section 8, declares that each house “shall be judge of the elections, returns, and 
qualifications of its own members.” Its determination is not the subject of repeal or 
review. It is final and concludes everyone. But what is included in this power? 
Does the power to judge of the qualifications of its members include the power to 
increase such membership? Can it enlarge its members without limit? Is it like an acad¬ 
emy of science, or a lodge of Odd Fellows, capable of indefinite expansion? If the 
law fixed the number of senators at twenty-five, could those twenty-five admit twenty- 
jive more, on pretense of judging “ of the elections and qualifications of its own members ,” 
and thus create a senate of fifty members? If this power exists, how easily could a partisan 
majority secure to itself a two-thirds vote, by simply admitting new members. To create 
a representative, or senatorial district requires a law—the consent of both houses. 
Neither house, by itself, can create a district and then admit someone to represent it. 
The district must exist before it can be represented.” 

In State v. Frances (26 Kans., 724) it was contended that a certain act of the legis¬ 
lature had failed to receive a constitutional majority of votes, and was, therefore, 
void. 

The question was whether four of the representatives whose votes were decisive 
in favor of this act, in the house, were lawful members of that body. The house of 
representatives, by its action admitting and retaining these four members, had con¬ 
strued the law and constitution to recognize their seats as subject to occupation at the time. 
The court overruled this construction, held that there were no seats in the house for 
these four representatives, and declared the act in question to be void. The court 
said: 

“Therefore, whenever the house of representatives consists of more than one hun¬ 
dred and twenty-five members some of such members must be there illegally. Such 
was the case in 1879. The house of representatives, at that time, consisted of one 
hundred and twenty-nine members. Four of these members, to wit, the four from 


HENRY A. DU PONT, OF DELAWARE. 


839 


Rooks, Rush, Harper and Kingman counties, who were not provided for by law, and 
who were the last members admitted to seats, were not entitled to their seats. And 
the act in controversy was passed only by the assistance of their votes. Except for 
their votes, or at least three of their votes, the act would not have received a con¬ 
stitutional majority of the votes of the members of the house; and, not counting their 
votes, the act did not receive a constitutional majority. Now, we do not think that 
their votes should be counted; and, therefore, we think the act in controversy must 
be held as not having passed the house of representatives, and as void.” 

In Yard v. Meeser (44 Penn. St., 341) the common council of Philadelphia, which 
was invested with the power to judge of the elections, returns, and qualifications of 
its members, had construed the law to recognize two seats as subject to occupation by 
representatives of the Fifth Ward, and had admitted a second member from that 
ward. The court, in an action to restrain the payment of the salary of the second 
councilman from this ward, overruled the construction given to the law by the com¬ 
mon council, held that the law did not recognize the second seat, and declared that 
its occupant was not a lawful member of the common council. The court said: 

“This court has no authority to judge whether the election was regulary conducted 
or not, for that duty is assigned by law to the councils. Our duty must be confined 
to the decision of the question whether there was an office or vacancy to be filled.” 

Judge Cooley, in his Constitutional Limitations, pages 52-55, says: 

“ It follows, therefore, that every Department of the Government, and every official 
of every Department, may, at any time when a duty is to be performed, be required 
to pass upon a question of constitutional construction. Sometimes the case will be 
such that the decision, when made, must, from the very nature of things, be conclu¬ 
sive and subject to no repeal or review, however erroneous it may be, in the opinion 
of other Departments or of other officers; but, in other cases, the same question may 
be required to be passed upon again before the duty is completely performed. The 
first of these classes is where, by the Constitution, a particular question is plainly 
addressed to the discretion of some one Department or officer, so that the interference 
of any other Department or officer, with a view to the substitution of its own discretion 
or judgment in the place of that to which the Constitution has confided the decision 
would be impertinent and intrusive. * * * But there are cases in which the question 
of construction is equally addressed to two or more Departments of the Government , and it 
then becomes important to know whether the decision by one is binding upon the 
others, or whether each is to act upon its own judgment. * * * But setting aside 
now those cases to which we have referred, when from the nature of things, and per¬ 
haps from explicit terms of the Constitution, the judgment of the Department or 
officer acting must be final, we shall find the general rule to he that , whenever action is 
taken which may become the subject of a suit or proceeding in court , any question of consti¬ 
tutional power or right that was involved in such action will be open for consideration in such 
suit or proceeding , and , as the court must finally settle the particular controversy , so also will 
they finally determine the question of constitutional law .” 

This is a case, therefore, if there can be said to be any question open to construc¬ 
tion in which, in the language of Judge Cooley, “the question of construction is equally 
addressed to two or more departments of the Government .” It is in all respects similar 
in principle to that class of cases referred to by this eminent jurist wherein action 
is taken which may become the subject of a suit or proceeding in court. Any question 
of constitutional power or right that was involved in such action will be open for con¬ 
sideration in such suit or proceeding, and the court must finally settle the particular 
controversy; so also will they determine the question of constitutional law. Here the 
Senate of the United States being called to act judicially under the constitutional 
grant authorizing it to judge of the elections and qualifications of its members—and 
this necessarily involves a construction of the Delaware constitution—hence, it is not 
bound, it is respectfully submitted, by any judgment of the Delaware senate on that 
subject. 

If, as a matter of constitutional law, the office of senator and speaker of the senate 
held by Watson became absolutely vacant when he succeeded to the executive office, 
any judgment of the State senate seeking to clothe him with power to hold or exer¬ 
cise the office of State senator would be a mere brutem fulmen, an act in all respects 
ultra vires , for the plain reason it would be a judgment assigning him a seat in the 
senate which, under the constitution, is not assignable or subject to occupation. Such 
an act upon the part of the Delaware senate would be something infinitely more in 
scope and effect than simply to judge of the qualifications of & person to a seat in the 
senate. It would be to declare a seat subject to occupation which the constitution 
declares shall not be occupied. 

And this view is equally applicable to this case whether the office of senator becomes 
absolutely vacant on the speaker of the senate becoming governor, or whether the 
right to exercise the office of senator while exercising the office of governor is merely 


840 


SENATE ELECTION CASES. 


held in abeyance and suspended. And any such judgment, it is respectfully submitted, 
is not binding on the Senate of the United States, and can not deprive that body under 
its power to judge of the qualifications of its members, of determining whether under 
the constitution of the State of Delaware the governor of that State can be permitted 
to hold or exercise the office of senator at the same time he holds and exercises the 
office of governor. 

AT' COMMON LAW THE SAME PERSON SHALL NOT HOLD OR EXERCISE SIMULTANEOUSLY 

INCOMPATIBLE OFFICES. 

In support of our first proposition that it is a well-settled rule of the common law 
that the same person shall not exercise simultaneously incompatible offices, and, fur¬ 
ther, that the acceptance of an office incompatible with the one held is ipso facto a 
resignation of the other, we attract attention to the following authorities: 

In the case of Milward v. Thatcher (2 T. R., 81) it was held that accepting the 
office of town clerk vacated the office of jurat of the corporation of Hastings, although 
the office of clerk was inferior to that of jurat, the jurats sitting as judges of a court 
of record; and the court, Mr. Justice Bulwer, in announcing the opinion said: 

‘‘Now, if the offices be incompatible, his being a jurat before is no objection to his 
election; and if they be incompatible, the election to the latter office is good, because 
the acceptance of the second vacates the first office. * * * The case of the King 
v. Sir W. Trelawney, so far as the question was entered into, is an authority. There 
the court did not distinguish between a superior and inferior officer; but Lord Mans¬ 
field expressly said that ‘ if the two officers were incompatible the acceptance of the 
latter would imply a surrender of the former.”’ 

Mr. Justice Bulwer further, in the opinion in that case, said: 

“If two offices can not be held by the same person at the same time, the accept¬ 
ance of the latter office vacates the former.” 

In the King v. Pateman (2 Durnf. and East, 777), Lord Chief Justice Kenyon said: 

“If an alderman be also a magistrate, and the town clerk act ministerially under 
him, then, indeed, these two offices can not be held by the same person. Now, here 
is a question whether the town clerk’s accounts are not allowed by the alderman; if 
they are, I think the two offices are incompatible, and this information should be for 
the purpose of trying that fact.” 

In The King v. Tizzard (9 B. and C., 418), Mr. Justice Bailey gives the following 
as one definition of incompatible offices: 

“The two offices are incompatible when the holder can not in every instance dis¬ 
charge the duties of each.” 

And further says Mr. Justice Bailey: 

“The acceptance of the second office therefore vacates the first. So a man shall 
lose his office if he accepts another office incompatible.” 

Can it be said that any man can in every instance discharge the duties of both gov¬ 
ernor and State senator, much less those of governor, senator, and speaker of the 
senate? 

Chief Justice Appleton, in Stubbs v. Lee (64 Me., 195), decided in 1874, in discuss¬ 
ing what constituted incompatible offices, and also the effect of the acceptance of an 
office incompatible with one already held, referred to the common law doctrine, and 
citing the foregoing English authorities, says: 

“ ‘The offices in question must be regarded as incompatible. I think,’ remarks 
Baily, J., in The King v. Tizzard (9 B. and C., 418), ‘thatthetwo offices are incom¬ 
patible when the holder can not in every instance discharge the duties of each. * * * 
The acceptance of the second office therefore vacates the first. * * * So a man 
shall lose his office if he accepts another office incompatible; as if one be under the 
control of the other; as if the remembrancer of the exchequer be made a baron of the 
exchequer.’ (5 Com. Dig., tit. ‘Officer’ (K. 5.) The appointment of a person to 
a second office incompatible with the first is not absolutely void, but on his subse¬ 
quently accepting the appointment and qualifying, the first office is ipso facto vacated. 
(The People v. Carrique, 2 Hill, 93.) 

“A vacancy may arise in an office from an implied resignation , as by the incumbent’s 
accepting an incompatible office (Van Orsdale v. Hazard, 3 Hill, 243). The accept¬ 
ance of the office of constable of a towm by a person holding at the time the office of 
justice of the peace is of itself a surrender of the latter office (Magie v. Stoddard, 25 
Conn., 565).” 

Mr. Justice Appleton, in further discussing this question in case supra, says: 

“Where one has two incompatible offices, both can not be retained. The public 
has a right to know which is held and which is surrendered. It should not be left to 
chance or to the uncertain and fluctuating whim of the officeholder to determine. 
The general rule, therefore, that the acceptance of and qualification for an office 


HENRY A. DU PONT, OF DELAWARE. 841 

incompatible with one then held is a resignation of the former is one certain and 
reliable as well as one indispensable for the protection of the public. 

“The defendant having been appointed and sworn as a deputy sheriff must be 
regarded as having accepted that office. By that acceptance he" surrendered the 
office of trial justice, a judicial office incompatible with that of a deputy sheriff. His 
judicial authority, therefore, as a trial justice was at an end.” 

Justice Co wen in discussing the question as to the effect of the acceptance of one 
office upon the other, in The People v. Carrique (2 Hill, 97), says: 

“This is an absolute determination of the original office, and leaves no shadow of 
title to the possessor, so that neither quo warranto nor a motion is necessary before 
any other may be elected (vide Millcock on Municipal Corporations, 240, pi. 617; to 
the same point Lord Mansfield, in Rex v. Trelawney, 3 Burr., 1616; Butler, J., in 
Mil ward v. Thatcher, 2 T. R., 87).” 

Also in Van Orsdall v. Hazard (3 Hill, 248), the court said: 

“A vacancy sometimes arises from a mere implied resignation by accepting an office 
incompatible with that which is claimed to be vacated.” 

THE AMERICAN RULE IS THAT LEGISLATIVE AND EXECUTIVE OFFICES ARE INCOMPATIBLE. 

Your committee recognize the doctrine as enunciated in the foregoing authorities as 
being the well-settled common law and American rule upon the subject of incompatible 
offices, both as to what constitutes incompatibility and as to the effect of the acceptance 
of an incompatible office in operating ipso facto a resignation of the former. A 
vacancy in such case is at once created, and it is not necessary there should be any 
legislative or judicial declaration to that effect. It is such a vacancy as may be filled 
at once by the proper appointing power. And your committee further hold that the 
American rule is that legislative and executive offices are incompatible; that this 
general rule, so far from being weakened, is strengthened and confirmed by the fact 
that in a number of instances, for special reasons , the same person, and sometimes the 
same legislative body, is, by specific constitutional or legislative provision, clothed 
partially with both legislative and executive powers. 

John M. Clayton, a leading and influential member, as stated by counsel in their 
brief in opposition to Mr. Du Pont, of the constitutional convention of the State of 
Delaware of 1831, recognized and strongly urged recognition of this doctrine by 
that convention. He said: 

“I have a high opinion of the Senators as men; but I object to the principle of 
conferring on them executive powers. It is highly important to keep as distinct as 
possible the legislative and executive departments. This principle is recognized in 
all our bills of rights. But here we should be blending legislative and executive 
powers. ’ ’ 

THERE IS NO EXPRESS OR IMPLIED AUTHORITY IN THE DELAWARE CONSTITUTION FOR 

THE SIMULTANEOUS EXERCISE BY THE SAME PERSON OF THE OFFICES OF GOVERNOR 

AND STATE SENATOR. 

> 

There is no express or implied authority in the Delaware constitution for the simulta¬ 
neous exercise by the same person of the offices of governor and senator. On the 
contrary, the constitution expressly inhibits such exercise of those two offices, and 
therefore, at the time Mr. Du Pont received 15 votes in the joint convention, Mr. 
Watson being then governor of the State, holding and exercising that executive 
office, was incapable of exercising the office of senator. 

Section 12 of Article II of the Delaware constitution, among other things, provides 
as follows: 

“Sec. 12. * * * No person concerned in any army or navy contracts, nor 

member of Congress, nor any person holding any office under this State or the 
United States, except the attorney-general, officers usually appointed by the courts 
of justice, respectively, attorneys at law, and officers in the militia holding no dis¬ 
qualifying office shall, during his continuance in Congress, or in office, be a senator 
or representative.” 

Your committee regard this provision as absolutely disqualifying the governor of the 
State of Delaware , whether elected by the people or having succeeded to the office to 
fill a vacancy caused by the death of the governor, from being a senator, or from exer¬ 
cising any of the functions of a senator. The provision is clear and specific, open to no 
ambiguity in its declaration that no person holding any office under the State, or of 
the United States, with certain exceptions, which are stated, shall “during his con¬ 
tinuance in such office be a senator or representative.” 

Mr. Watson was, on the 9th day of Mav, 1895, confessedly the governor of the 


842 


SENATE ELECTION CASES. 


State of Delaware. He was therefore on that date holding an office under the State of 
Delaware. As the governor is not named in the exceptions, namely, “the attorney- 
general, officers usually appointed by the courts of justice, respectively, attorneys at 
law, and officers in the militia holding no disqualifying office,” he was therefore dis¬ 
qualified from being a senator in the senate of the State on that date. In other words, 
there was a place made vacant in the senate, either absolutely , or for and during the 
time the speaker of the senate should continue to exercise the office of governor, which, by 
express constitutional provision, he, the governor of the State, was prohibited from filling — 
a vacancy such as was open only to occupation, if at all, by a person elected by the 
qualified electors of Kent County. 

But not only so. It is further provided, in section 5 of Article III of the Delaware 
constitution, as follows: 

“Sec. 5. No member of Congress nor person holding office under the United States 
or this State shall exercise the office of governor.” 

What is the effect of this provision? Is it not clear, unambiguous, specific, to the 
effect, among other things, that no person holding any office under the State of Del¬ 
aware shall exercise the office of governor; or, in other words, no senator (because 
a senator holds an office under the State) shall be governor or shall exercise the office of 
governorf 

A senator under the constitution of Delaware may be and is by specific provision 
eligible to the office of governor, but once the office of governor is accepted, its duties 
entered upon by such senator, he unquestionably, in virtue of section 12 of Article II 
of the Delaware constitution, ceases to be a senator, either absolutely or by suspension. 

He ceases to be a senator for two reasons: 

(1) Because section 12, Article II, of the constitution declares that no person hold¬ 
ing office under that State (and*the governor holds office under the State) shall be a 
senator; and 

(2) Because the moment he becomes governor he necessarily—the two offices 
being incompatible—ceases to be senator. Otherwise, moreover, under section 5 of 
Article III of the constitution, he can not, if he is a senator, exercise the office of 
governor. 

There is no conflict or repugnance between these two clauses of the constitution of 
the State of Delaware, unless an unreasonable construction should be given to them. 
Should they be construed as to make one, a declaration that the senator who hap¬ 
pens to be speaker of the senate when the governor dies shall thereupon become 
governor, and the other a declaration that no senator shall ever become governor, then 
there would be a repugnance and a gross incongruity. Such a construction there¬ 
fore should not be given if they are susceptible of another construction more reason¬ 
able and which would harmonize the two provisions. 

In the judgment of your committee the two clauses taken together mean simply 
this: 

In the event of a vacancy in the office of governor, the speaker of the senate is 
eligible to become governor. He is not empowered to exercise the office of governor 
ex officio, but he is eligible to fill the office of governor. If he takes the oath and 
enters upon the duties of the office of governor, then he ceases to be senator, if not 
absolutely, by suspension for such time as he shall exercise the office of governor, because 
the constitution declares, in substance and effect, that inasmuch as he then holds 
the office of governor, that being an office under the State, he can no longer, at 
least not so long as he continues to exercise the office of governor, be a senator. 

The constitution of Delaware, taken as a whole, maintains with great distinctness 
the lines of separation between the three great branches of government—legislative, 
executive, and judicial—and this upon the well-recognized principle in America that 
legislative, executive, and judicial offices are incompatible with each other, and are 
not to be exercised simultaneously by the same person. While in a few instances 
there is slight encroachment in one sphere of these branches upon another, there is 
no instance in which the constitution authorizes the same individual to exercise the 
power of governor and that of either judge or legislator simultaneously. 

This general rule and requirement of the constitution of that State as keeping dis¬ 
tinct and separate the three branches of government are but emphasized and strength¬ 
ened by the exceptions provided for in the constitution, as, for instance, it is provided 
that in case of a tie vote in the election of a governor by the people the two houses 
of the legislature are by joint ballot to choose one of the candidates to be governor. 

Again, contested elections of governor are to be determined by a joint committee 
of one-third of all the members of each branch of the legislature. 

Again, each house of the legislature is made the judge of the elections, returns, and 
qualifications of its own members. 

And still further, all impeachments are to be tried by the senate. 


HENRY A. DU PCXNT, OF DELAWARE. 843 

But still further, section 14 of Article III of the Delaware constitution provides, as 
we have seen, that— 

11 Upon any vacancy happening in the office of governor by his death, etc., * * * 
the speaker of the senate shall exercise the office until a governor elected by the people 
shall be duly qualified .” 

There is nothing in this clause or any other clause of the constitution which 
declares affirmatively or by fair inference that the person thus exercising the office 
of governor shall continue to exercise the office of speaker or of senator. 

SOME ADDITIONAL CITATIONS FROM THE DELAWARE CONSTITUTION SHOWING THE INCOM¬ 
PATIBILITY OF THE OFFICES OF GOVERNOR AND STATE SENATOR. 

For instance, Article VI, section 14, provides that— 

“ The governor may, for any reasonable cause, in his discretion, remove any of 
them (judges) on the address of two-thirds of all the members of each branch of the 
general assembly.’’ 

If the governor can be governor and senator at the same time, exercising both offices 
simultaneously , then he may be one of the senators making up the two-thirds of all 
the members of each branch of the general assembly to address the governor , in virtue 
of which address alone he as governor acquires jurisdiction to remove a judge. 

Again, Article III, section 11, provides that the governor— 

“Shall, from time to time, give to the general assembly information of affairs con¬ 
cerning the State, and recommend to their consideration such measures as he shall 
judge expedient.” 

It would be rather an anomaly in our American system of government to permit 
a governor to vote in favor of measures in the senate which he as governor deemed 
expedient and had recommended to the senate. 

But still further, Article III, section 12, provides that the governor may— 

“In case of disagreement between the two houses with respect to the time of 
adjournment, adjourn them to such time as he shall think proper, not exceeding 
three months.” 

Hence it is, if the governor can also be senator at £he saqne time, and exercise both 
offices simultaneously, he is clothed with power to create a disagreement between 
the two houses by his vote in the senate, which fact alone would give him jurisdiction 
as governor to adjourn the general assembly to such time as he should think proper. 

Article III, section 1, provides as follows: 

“The supreme executive powers of the State shall be vested in a governor.” 

While, therefore, the constitution designates the speaker of the senate as an eligible 
person to fill the office of governor, and as the person to fill it in the event of a vacancy, 
it is clear he can not and does not fill the office as senator, or because of the fact that 
he is speaker of the senate , for the reason that the supreme executive powers of the 
State are by the constitution vested in a governor and not in the speaker of the senate. 

Again, it is provided in Article V, section 1, that— 

“ All impeachments shall be tried by the senate; and when sitting for that pur¬ 
pose the senators shall be upon oath or affirmation to do justice according to the 
evidence. No person shall be convicted without the concurrence of two-thirds of all 
the senators.” 

The governor, moreover, is, in virtue of this same article, subject to impeachment by 
the house of representatives. If Watson was governor on May 9, 1895, and is yet, 
and this is conceded, then he was and is liable to impeachment, and under the theory 
that he is still senator, and eligible as such to exercise the funct ions of senator, he would. 
sit in judgment on himself, and by his vote might defeat a two-thirds vote in the senate 
and thus render a verdict of not guilty as impeached. Can such incompatibility in 
office receive the sanction of the Senate? 

Article II, section 7, provides: 

“Eachhousemay * * * with the concurrence of two-thirds, expel a member.” 

While Article III, section 14, provides that— 

“The governor shall not be removed from his office for inability, but with the 
concurrence of two-thirds of all the members of each branch of the legislature.” 

Here again, if permitted to exercise the office of senator while exercising the office 
of governor, he may by his vote in the senate defeat a two-thirds vote necessary to 
remove him as governor for disability. 

It is also provided, in Article II, section 16, of the Delaware constitution, that— 

“In case of vacancy in the office of State treasurer in the recess of the general 
assembly, either through omission of the general assembly to appoint, or by the death, 
removal out of the State, resignation, or inability of the State treasurer, * * * 
the governor shall fill the vacancy by appointment to continue until the next 
meeting of the general assembly.” 


844 


SENATE ELECTION CASES. 


It is obviously obnoxious to all sense of governmental propriety to permit a gov¬ 
ernor in such case to act as a legislator, and thus by his vote, and, what is infinitely 
more potent, by his executive influence in the senate, defeat the election of the head 
of the exchequer in the State, and thus enable him to appoint a man of his sole choice 
to the office. 

Again, Article VII, section 1, provides that— 

“ Certain officers * * * may be removed * * * onthe address of both houses 
of the legislature; ” 

While Article VI, section 14, provides that— 

“The governor may for any reasonable cause in his discretion remove any of the 
judges on the address of two-thirds of all the members of each branch of the general 
assembly.” 

Here again the gross impropriety is made clearly apparent in recognizing a con¬ 
struction that will enable the governor of the State to exercise his vote and his influ¬ 
ence as governor of the State in the State senate in making up the two-thirds vote that 
will enable him as governor to remove or appoint judges and a number of other 
officers of the State. 

WHAT HAS BEEN THE USAGE, AND WHAT ARE THE PRECEDENTS. 

While in the judgment of your committee there is no such uncertainty or ambigu¬ 
ity in the different provisions of the constitution as to require resort to usage or 
precedents in giving construction, it is well to consider just what the precedents and 
usage have been. 

Since 1792 nine speakers of the senate and one speaker of the house of representa¬ 
tives have succeeded to the office of governor, pursuant to the provisions of section 
14 of Article III of the Delaware constitutions of 1792 and 1831. Four of these were 
under the constitution of 1792 and six under the constitution of 1831—the present 
constitution. 

In not one of these ten cases cited has any person who has succeeded to the governor¬ 
ship in the last one hundred and four years in virtue of this section 14, which, so far as 
this question is concerned, is substantially similar in the constitutions of 1792 and 
1831, whether speaker of the senate or speaker of the house of representatives, taken 
any part whatever during his continuance in the governor's office in the proceedings of the 
senate or of the house of representatives, with the single exception of the present governor of 
Delaware, Mr. Watson , and whose act in thus breaking over the precedents of one 
hundred years’ standing, has involved the people and the legislature of the State of 
Delaware, and the Senate of the United States in this controversy. During all this 
time the ten persons, including Governor Watson, thus exercising the office of gov 
ernor have, during such time, drawn the governor’s salary and have not drawn the 
salary of senator or member. 

THE FACT THAT THE DELAWARE CONSTITUTION PROVIDES FOR THE ELECTION OF A 

speaker pro tempore of the senate when the speaker succeeds to the gov¬ 
ernorship DOES NOT IMPLY THAT THE LATTER CONTINUES TO BE SPEAKER OF THE 

SENATE. 

Counsel in opposition to the claim of Mr. Du Pont contend that the use of the 
words, “speaker pro tempore ,” in the clause of the Delaware constitution which pro¬ 
vides “That either house whose speaker shall exercise the office of governor may 
choose a speaker pro tempore ,” carries with it the implication of the contemporaneous 
official existence of another speaker; and it is also contended that the use of the 
words, “ may choose ,” in the latter part of such clause implies simply a discretion in , 
and not a duty upon, the part of the senate to elect a speaker pro tempore in such a 
case. 

Your committee can not concede either of these propositions as the result of a 
proper legal construction of such provision, even if the provision stood alone, and 
still much more difficult would it be to consent to such a construction when consid¬ 
ered, as the clause must be, in connection with other clauses of the constitution. 
And as bearing upon the latter proposition it may be properly said that inasmuch as 
the public interests are involved, it being unquestionably for the public interest that the 
senate should at all times have a presiding officer, and as it is plain to all that the gov¬ 
ernor of a State, if he would properly discharge the duties of executive, could not 
possibly, in the very nature of things, for any part of the time, much less at all times, 
be present and preside over the senate, it follows, under the well-settled rule of law, 
that the word “may ” as used in that clause, should be construed as “shall.” 

“The rule is,” said the court in Rex v. Inhabitants of Derby (Skinner, 370), and 


HENRY A. DU PONT, OF DELAWARE. 


845 


in Rex et Regina v. Barlow (2 Salkeld, 609), “where a constitution or a statute 
directs the doing of a thing for the sake of justice or the public good the word ‘may* 
is the same as the word ‘ shall.’ ” 

This rule has been followed both in England and the United States without any 
respectable dissent. 

A statute of Illinois reads as follows: “The board of supervisors may, if deemed 
advisable, levy a special tax,” etc., and the Supreme Court of the United States, in 
construing this statute in the case of Supervisors v. The United States (4 Wall., 435), 
opinion by Mr. Justice Swayne, said: 

“The conclusion to be deduced from the authorities is that where power is given 
to public officers in the language of the act before us, or in equivalent language, 
w here the public interest or individual rights call for its exercise, the language though 
permissive in form is in fact peremptory.” 

In Steines v. Franklin Co. (48 Mo., 167), the court held that when a statute pro¬ 
vides that the county couwt “may” submit the question to the voters, before incur¬ 
ring certain expenses, it must do so. In Mitchell v. Duncan (7 Flor., 13), it is held 
that “ may” is to be construed “shall” where a statute directs the doing of a thing 
necessary to the ends of justice. 

In Peoples. Brooklyn (22 Barb., 404), it is held that “may” will be construed 
‘‘ shall ’’ where the good sense of the entire enactment requires it. in Mayor v. New York 
(3 Hill, 612), the Supreme Court said: 

“Where a public body or officer has been clothed by statute with power to do an 
act which concerns the public interest, or the rights of third persons, the execution of 
the power may be insisted on as a duty, though the phraseology of the statute be 
permissive merely.” 

The theory that provision in a statute or constitution for the election of a speaker 
pro tempore implies the existence at the same time of another speaker is wholly dissi¬ 
pated by the precedents of the innumerable American instances of the election of a 
speaker pro tempore when there is no regular speaker. A speaker pro tempore is sim¬ 
ply a speaker for the occasion—for the time being. There may or may not be another 
speaker in existence at the same time. A speaker pro tempore may be, and frequently 
is, chosen, and so designated and called when there is no other speaker. There is, 
therefore, no argument in opposition to the theory of this report to be drawn from 
the use in the provision quoted either of the words “may choose” or pro tempore. 

To hold the same person could exercise and discharge the duties and functions of 
governor and State senator and speaker of the senate simultaneously would be to 
strike down ruthlessly the line that separates the executive and legislative branches 
of the government and to declare an union of these two branches in the same per¬ 
son. This could not be so under the well-recognized American rule, even in the 
absence of express prohibitory clauses; but in this case such prohibitory clauses exist, 
as we have shown. 

The constitutional provision is not that no person holding any office under the State 
of Delaware shall be elected governor by the people, but that no person holding such 
office shall “exercise the office of governor.” 

It is quite immaterial how he comes to be governor, whether by election by the people 
or by virtue of the constitutional provision making the speaker of the senate eligible in a 
certain contingency; in either case it is conceded he is the governor of the State, in every 
conceivable sense of the term, and hence it is clear he can not, while exercising such 
office of governor, hold any other office under the State of Delaware. He therefore 
can not be a senator; he can not exercise senatorial functions while exercising executive 
functions. 

THE DELAWARE COURT OF APPEALS. 

The court of errors and appeals of the State of Delaware in the case of Rice v. 
Foster (4 Harrington, 485-487), drew with clearness and distinctness the line of sepa¬ 
ration between the three branches of the government established by the constitution 
of the State of Delaware, and among other things said: 

“If we consider the peculiar situation of the United States, and go to the sources 
of that diversity of sentiment which pervades its inhabitants, we shall find great 
danger to fear that the same causes shall terminate here in the same fatal effects 
which they produced in those republics. To guard against these dangers and the 
evil tendencies of a democracy, our republican Government was instituted by the 
consent of the people. The characteristic which distinguishes it from the miscalled 
republics of ancient and modern times is that none of the powers of sovereignty are 
exercised by the people, but all of them by separate, coordinate branches of govern¬ 
ment in whom those powers are vested by the Constitution. These coordinate 
branches are intended to operate as balances, checks, and restraints, not only upon 
each other, but upon the people themselves; to guard them against their own rash- 


846 


SENATE ELECTION CASES. 


ness, precipitancy, and misguided zeal, and to protect the minority against the 
injustice of the majority. * * * 

“The legislative, executive, and judicial powers compose the sovereign power of a 
State. The people of the State of Delaware have vested the legislative power in a 
general assembly, consisting of a senate and house of representatives; the supreme 
executive powers of the State in a governor; and the judicial power in the several 
courts mentioned in the sixth article. The sovereign power, therefore, of this State 
resides with the legislative, executive, and judicial departments. Having thus trans¬ 
ferred the sovereign power, the people can not resume or exercise any portion of it. 
To do so would be an infraction of the constitution, and a dissolution of the govern¬ 
ment. Nor can they interfere with the exercise of any part of the sovereign power, 
except by petition, remonstrance, or address. They have the power to change or 
alter the constitution; but this can be done only in the mode prescribed by the 
instrument itself. The attempt to do so in any other mode is revolutionary. And 
although the people have the power, in conformity with its provisions, to alter the 
constitution, under no circumstances can they, so long as the Constitution of the 
United States remains the paramount law of the land, establish a democracy, or any 
other than a republican form of government. It is equally clear that neither the 
legislative, executive, nor judicial department, separately, nor all combined, can 
devolve on the people the exercise of any part of the sovereign power with which 
each is invested. The assumption of a power to do so would be usurpation. The 
department arrogating it would elevate itself above the constitution, overturn the 
foundation on which its own foundation rests, demolish the w r hole frame and texture 
of our republican form of government, and prostrate everything to the worst species 
of tyranny and despotism, the ever-varying will of an irresponsible multitude.” 

IT IS CONCEDED W ATSON WAS GOVERNOR OF THE STATE OF DELAWARE MAY 9, 1895, AND 
HAD BEEN SINCE APRIL 9, 1895, IN THE FULL SENSE OF THAT TERM. 

It is not denied but conceded by counsel , in opposition to the claim of Mr. Du Pont, 
that William T. Watson was, on the 9th day of May, 1895, and had been since April 
9, 1895, governor of the State. In their able and elaborate brief filed in the case 
(p. 30), in a reference to certain statements in the brief of counsel for Mr. Du Pont, 
we find the following: 

“ Thus counsel devote thirty pages of their brief (pp. 34-63) to a demonstration of 
the fact that the speaker of the senate, in case of a vacancy in the office of governor, 
becomes governor of the State. The matter counsel present on this head attests 
their industry and may interest the curious, but it supports a proposition which we do 
not contest .” 

It is conceded, therefore, by those opposing the claim of Mr. Du Pont, that Mr. 
Watson, on his inauguration as governor, became the governor of the State. He was 
not merely to exercise the office of governor ex officio. Not merely to act as governor 
in the manner the President pro tempore of the United States Senate would have 
acted in the case of vacancies in the offices of President and Vice-President under 
the act of 1792. The distinction is this: If an office be appendant , as the expression 
is in 1 Leon, 321, to another office, the determination of the first office will deter¬ 
mine the second. This is w here a person holding any office is ex officio entitled to 
perform the functions of some other office, as was the case perhaps of President pro 
tempore of the United States Senate under the act of 1792. In such case the right to 
exercise the functions of the second office ceases upon the determination of the office 
held in virtue of which he exercises such ex officio functions of the seeond office. 

If however, the nomination or appointment to an office, as it is in the case under 
consideration by descnptio personam, of one who holds another office by the title 
of which he is described, and who, on a contingency, is to enter and fill another 
office, he answering the description at the time the contingency arises, designates 
him as the person who is to fill the office, and when, as thus designated, he enters 
into the office, he holds it in his natural and not in his official capacity. And hence 
in this case of Watson, even in the absence of any affirmative constitutional declara¬ 
tion, he would continue to hold the office of governor—if the term continued— after 
his term of senator had expired, his office of governor not being appendant to that of sen¬ 
ator. But in this case the Delaware constitution, recognizing this principle, declares, 
in section 14, Article III, not that he shall exercise the office of governor so long as 
his term of senator shall continue , but “until a governor elected by the people shall be duly 
qualified .” (Chadwick v. Earhart, 11 Oregon, 394.) 

Governor Watson did not resume the chair of speaker of the senate about 
12 m., May 9, 1895, after a continued absence of a month from date of his 
inauguration as governor, on April 9, 1895, as the result of a sense of public 
duty or believing he had any right to do so, but as an afterthought and as the 


HENRY A. DU PONT, OF DELAWARE. 


847 


result of pressure from political associates and of a partisan conspiracy , and for tiie sole 

PURPOSE OF DEFEATING THE ELECTION OF A REPUBLICAN UNITED STATES SENATOR. 

Senator John M. C. Moore, in his affidavit of January 14, 1896 (see appendix), 
states that Governor Watson said to him in the senate chamber on May 9, 1895, 
shortly before he resumed the speaker’s chair: 

“Mr. Moore, I want to talk with you. I believe you will tell me just as it is. Is 
Mr. Massey out of this thing?” (Mr. Massey was one of the Republican candidates 
being voted for for United States Senator.) Senator Moore states he said to him in 
reply: “Governor, we are not going to cast another ballot for Mr. Massey nor no 
other who has been balloted for except Henry A. Du Pont. He will be elected on 
first ballot in the joint session,” to which the governor replied to me: ‘ If that be the 
case, I shall take my seat.’ Against this I remonstrated, and said to him: ‘Gov¬ 
ernor, I hope you will not do it; I think too much of you as a man for you to do it.’ 
That was the last of our conversation. He made no reply to my remonstrance. He 
arose and went over to the desk of George Fisher Pierce, a senator and one of my 
colleagues from Sussex County, where I saw him take a seat near Senator Pierce.” 

Senator George Fisher Pierce in his affidavit filed herein, of date January 13, 1896 
(see appendix), says: 

“About ten minutes before the hour of noon, May 9, 1895, William T. Watson, 
governor of the State of Delaware, being in the chamber (the senate being presided 
over by William T. Records, its speaker), came and took a seat alongside of this 
deponent and said to him: “I am going into the joint assembly and vote for a Sen¬ 
ator.” This deponent said: “ You are going to do whatf” He answered: “I am 
going to preside over the joint assembly to-day and vote for a United States Senator.” 
This deponent then said: “Do you think that is right?” Governor Watson 
answered: “ No, I do not, but my party has overruled me .” This deponent answered: 
“Then, I suppose, there is nothing I can say now that would change your mind;” 
to which Watson replied, “No, my mind is fully made up.” 

J. S. Pretty man, jr., in his affidavit filed herein, dated January 14, 1896 (see 
appendix), after reciting that he met and walked with Governor Watson from the 
railroad station at Milford, Del., into the center of the town, a distance of about one- 
quarter of a mile, about 6.45 o’clock p. m., May 9, 1895, the day the Delaware legis¬ 
lature adjourned, says: “During this walk Governor Watson said to me that when 
he went to Dover on the morning of that day he did not expect to preside as speaker 
of the senate, believing that he did not have a legal right to act as governor and senator. 
After reaching Dover, in response to the influence af party leaders, he reversed this 
decision and consented to enter the senate and claim his nghts as speaker. In doing this 
he said he put aside his own judgment, and acted upon the judgment of those whom 
he regarded as well qualified to advise.” This witness further states in this affidavit 
that on the Friday following the above conversation he had another conversation 
with Governor Watson, when the latter, becoming somewhat excited, drew from 
his pocket a paper, and handed it to witness, saying, “Read this!” Deponent 
says: “I took the paper and read the writing through. It was an agreement 
between Robert J. Ilanby, Newall Ball, Charles Moore, and John Robbins, mem¬ 
bers of the Delaware legislature, signed with their names, and to the effect that 
they would vote for J. Edward Addicks for United States Senator, and that they 
w T ould not vote for anyone else, even though no Senator should be elected. As I passed 
the paper back to the governor, he said: ‘Wouldn’t you have acted as I did, under 
such circumstances?’ I evaded his question by saying, ‘Are the signatures genu¬ 
ine?’ and he replied, ‘Of course they are; look again;’ and he passed the paper to 
me for the second time. I read it through again, and examined the signatures, 
remarking that I w r as not familiar with the autographs of these men, but that the 
names were in different handwritings. He said he was not familiar with the auto¬ 
graphs of the men, but that he was sure the names were genuine. The governor also 
said that this agreement was brought to him to induce him to take part in the last joint 
assembly of the legislature, and, influenced by it, through the advice of others, he consented 
to preside as speaker of that body, and did so preside on the day mentioned .” 

He further said that “the Republicans had every opportunity to elect a Senator, 
and had failed to do so, and of course he preferred that the Democratic party should 
have a representative in the United States Senate from Delaware, rather than the 
Republican party.” 

Frank Reedv, in his affidavit of date January 23,1896, filed herein (see appendix), 
states that he had a similar conversation with Governor Watson on May 10, 1895, in 
which he showed him the same or a similar paper. 

From the foregoing uncontradicted testimony it is clearly evident Governor Watson 
did not reenter the speaker’s chair and the joint assembly May 9, 1895, from any 
sense of public duty , or in the belief that he had any legal right to do so, but ra ther in pur- 


848 


SENATE ELECTION CASES. 


suance of a 'partisan conspiracy and for the sole purpose of defeating the election of a 
Kepublican to the TTnited States Senate.’’ 

IT IS CONCEDED A CERTIFICATE OF DUPONT’S ELECTION FROM THE GOVERNOR OF DELA¬ 
WARE IS NOT AN ESSENTIAL REQUISITE. 

Mr. Du Pont’s election is not certified by William T. Watson, then holding the 
office of governor of the State of Delaware, but is certified to by Henry H. McMul¬ 
len, speaker of the house of representatives, and attested by Edgar T. Hastings, clerk 
of the house of representatives. (See Senate Ex. Doc. No. 9, first session Fifty- 
fourth Congress.) 

It is conceded, however, and, in fact, in view of the precedents, could not well be 
contested by those opposing the claim of Mr. Du Pont to a seat in the Senate, that 
his title to such seat is not impaired by the fact that he fails to present a certificate 
of election from Mr. Watson, the then governor of the State, as evidence of his 
election, provided he received a majority of the legal votes cast in the joint assem¬ 
bly. (See argument in opposition to Mr. Du Pont’s claim, p. 5.) 

THE UNION OF EXECUTIVE AND LEGISLATIVE FUNCTIONS IS absolutism OR despotism ON 

THE ONE HAND AND slavery ON THE OTHER, WHETHER UNITED IN ONE MAN OR THE 

MANY. 

Dr. Lieber, in his work on Civil Liberty and Self-Government, says: 

“A principle and guaranty of liberty, so acknowledged and common with the 
Anglican people that few think of its magnitude, yet of really organic and funda¬ 
mental importance, is the division of government into three distinct functions, or 
rather the keeping of these functions clearly apart. 

“It is, as has been mentioned, one of the greatest political blessings of England 
that from a very early period her courts of justice were not occupied with ‘ admin¬ 
istrative business,’ for instance, the collection of taxes, and that her Parliament 
became the exclusive legislature, while the Parliaments of France united a judicial, 
legislative, and administrative character. The union of these functions is absolutism 
or despotism on the one hand and slavery on the other, no matter in whom they are 
united, whether in one despot or in many, or in the multitude, as in Athens after 
the time of Cleon the tanner. The English political philosophers have pointed out 
long ago the necessity of keeping the three powers separate in a ‘constitutional’ 
government. Those, however, who have no other definition of liberty than that 
it is equality, discard this division, except, indeed, so far as the mere convenience of 
transacting business would require.” (Pages 154, 155.) 

mr. Webster’s views on maintaining constitutional restraints and just divisions 

OF POLITICAL POWER. 

Counsel for Mr. Du Pont, in their brief, quote the following statement from a 
speech of Mr. Webster in the Senate of the United States, May 7, 1834, on the 
“Presidential protest,” which your committee deem worthy of consideration in con¬ 
nection with the questions involved in this case: 

“The first object of a free people is the preservation of their liberty; and liberty 
is only to be preserved by maintaining constitutional restraints and just divisions of 
political power. Nothing is more deceptive or more dangerous than the pretense of 
a desire to simplify government. The simplest governments are despotisms; the next 
simplest, limited monarchies; but all republics, all governments of law, must impose 
numerous limitations and qualifications of authority and give many positive and 
many qualified rights. In other words, they must be subject to rule and regulation. 
This is the very essence of free political institutions. 

“The spirit of liberty is, indeed, a bold and fearless spirit; but it is also a sharp- 
sighted spirit; it is a cautious, sagacious, discriminating, far-seeing intelligence; it is 
jealous of encroachment, jealous of power, jealous of man. It demands checks; it 
seeks for guards; it insists on securities; it entrenches itself behind strong defenses, 
and fortifies itself with all possible care against the assaults of ambition and passion. 
It does not trust the amiable weaknesses of human nature, and therefore it will not 
permit power to overstep its prescribed limits, though benevolence, good intent, and 
patriotic purpose come along with it. Neither does it satisfy itself with flashy and 
temporary resistance to illegal authority. Far otherwise. It seeks for duration 
and permanence. It looks before and after; and, building on the experience of 
ages that are past, it labors diligently for the benefit of ages to come. This is the 
nature of constitutional liberty; and this is our liberty, if we will rightly under¬ 
stand and preserve it. Every free government is necessarily complicated,'” because 


HENRY A. DU PONT, OF DELAWARE. 


849 


all governments establish restraints, as well on the power of government itself as on 
that of individuals. If we will abolish the distinction of branches and have but one 
branch; if we will abolish jury trials and leave all to the judge; if we will then ordain 
that the legislator himself shall be that judge, and if we will place the executive 
power in the same hands, we may readily simplify government. We may easily 
bring it to the simplest of all forms—a pure despotism. But a separation of depart¬ 
ments, so far as practicable , and the preservation of clear lines of division between them, 
is the fundamental idea in the creation of all our constitutions; and doubtless the contin¬ 
uance of regulated liberty depends on maintaining these boundaries .” (Works of Daniel 
Webster, Vol. IV, p. 122.) 

And still further: 

“Mr. President, the contest for ages has been to rescue liberty from the grasp of 
executive power. Whoever has engaged in her sacred cause, from the days of the 
downfall of those great aristocracies which had stood between the king and the peo¬ 
ple to the time of our own independence, has struggled for the accomplishment of 
that single object. On the long list of the champions of human freedom there is 
not one name dimmed by the reproach of advocating the extension of executive 
authority; on the contrary, the uniform and steady purpose of all such champions 
has been to limit and restrain it. To this end the spirit of liberty, growing more 
and more enlightened and more and more vigorous from age to age, has been bat¬ 
tering for centuries against the solid butments of the feudal system. To this end all 
that could be gained from the imprudence, snatched from the weakness, or wrung 
from the necessities of crowned heads has been carefully gathered up, secured, and 
hoarded, as the rich treasures, the very jewels of liberty. 

“To this end popular and representative right has kept up its warfare against pre¬ 
rogative with various success; sometimes writing the history of a whole age in blood, 
sometimes witnessing the martyrdom of Sidneys and Russells, often baffled and 
repulsed, but still gaining on the whole, and holding what it gained with a grasp 
which nothing but the complete extinction of its own being could compel it to relin¬ 
quish. At length the great conquest over executive power in the leading western 
states of Europe has been accomplished. The feudal system, like other stupendous 
fabrics of past ages, is known only by the rubbish which it has left behind it. 
Crowned heads have been compelled to submit to the restraints of law, and the people, 
with that intelligence and that spirit which make their voices resistless, have been 
able to say to prerogative, ‘ ‘ Thus far shalt thou come, and no farther. ’ ’ I need hardly 
say, sir, that into the full enjoyment of all which Europe has reached only through 
such slow and painful steps we sprang at once by the Declaration of Independence 
and by the establishment of free representative governments; governments borrow¬ 
ing more or less from the models of other free states, but strengthened, secured, 
improved in their symmetry and deepened in their foundation by those great men of 
our own country whose names will be as familiar to future times as if they were 
written on the arch of the sky. 

“Through all this history of the contest for liberty executive power has been 
regarded as a lion which must be caged. So far from being the object of enlightened 
popular trust, so far from being considered the natural protector of popular right, it 
has been dreaded, uniformly always dreaded, as the great source of its danger. 

“ And now, sir, who is he, so ignorant of the history of liberty, at home and abroad; 
who is he, yet dwelling in his contemplations among the principles and dogmas of the 
Middle Ages; who is he, from whose bosom all original infusion of American spirit 
has become so entirely evaporated and exhaled that he shall put into the mouth of 
the President of the United States the doctrine that the defence of liberty naturally 
results to executive power and is its peculiar duty? Who is he that, generous and 
confiding toward power where it is most dangerous, and jealous only of those who 
can restrain it; who is he that, reversing the order of the state and upheaving the 
base, would poise the pyramid of the political system upon its apex? Who is he 
that, overlooking with contempt the guardianship of the representatives of the peo¬ 
ple, and with equal contempt the higher guardianship of the people themselves; who 
is he that declares to us, through the President’s lips, that the security for freedom 
rests in executive authority? Who is he that belies the blood and libels the fame 
of his own ancestors by declaring that they, with solemnity of form and force of 
manner, have invoked the executive power to come to the protection of liberty? 
Who is he that thus charges them with the insanity or the recklessness of putting 
the arnb beneath the lion’s paw? No, sir. No, sir. Our security is in our watchfulness 
of executive power. It was the constitution of this department which was infinitely 
the most difficult part in the great work of creating our present Government. To 
give to the executive department such power as should make it useful and yet not 
such as should render it dangerous; to make it efficient, independent, and strong, 
and yet to prevent it from sweeping away everything by its union of military and 


S. Doc. It-54 



850 


SENATE ELECTION CASES. 


civil authority; by the influence of patronage, and office, and favor; this, indeed, was 
difficult. They who had the work to do saw the difficulty, and we see it; and if we 
would maintain our system we shall act wisely to that end by preserving every 
restraint and every guard which the Constitution has provided. And when we and 
those who come after us have done all that we can do, and all that they can do, it 
will be wed for us and for them if some popular executive, by the power of patronage 
and party, and the power, too, of that very popularity, shall not hereafter prove an 
overmatch for all other branches of the Government.” (Works of Daniel Webster, 
Vol. IV, pp. 133, 134, 135.) 

Montesquieu in his “Spirit of Laws,” volume 1, page 152, says: 

“When the legislative and executive powers are united in the same person, or in 
the same body of magistrates, there can be no liberty; because apprehensions may 
arise lest the same monarch or senate should enact tyrannical laws, to execute them 
in a tyrannical manner. 

“Again, there is no liberty if the judiciary power be not separated from the legis¬ 
lative and executive. Were it joined with the legislative, the life and liberty of the 
subject would be exposed to arbitrary control, for the judge would be then the 
legislator. Were it joined to the executive power, the judge might behave with 
violence and oppression. 

“There would be an end of everything were the same man or the same body, 
whether of the nobles or of the people, to exercise those three powers—that of 
enacting laws, that of executing the public resolutions, and of trying the causes 
of individuals.” 


CONCLUSIONS OF LAW AND FACT. 

(1) It is a well-settled rule of the common law that the same person shall not 
exercise simultaneously two incompatible offices; and further, the acceptance of one is 
ipso facto a resignation of the other. 

(2) Under the American system executive and legislative offices are incompatible , and 
the same person can not exercise both simultaneously in the absence of either express 
or clearly implied statutory or constitutional authority; and the acceptance of the 
second is ipso facto a resignation of the first. 

(3) There is no express or implied authority in the constitution of the State of 
Delaware for the simultaneous exercise by the same person of the offices of governor 
and senator; on the contrary, such constitution expressly interdicts such exercise of 
those two offices. 

(4) Whether or not the offices of State senator and speaker of the senate became 
absolutely vacant when Speaker Watson took the oath of office, was inaugurated gov¬ 
ernor of the State, and entered upon the exercise of that office, there can be no 
doubt, on a fair construction of the several constitutional provisions of the State of 
Delaware, that his right to exercise the office of senator or speaker of the senate, or any 
of the functions connected therewith while he continued to hold and exercise the office 
of governor, was held in abeyance and absolutely suspended. 

(5) The theory that Mr. Watson can exercise the office of governor of the State 
and State senator simultaneously, involves innumerable constitutional repugnancies, 
perplexing difficulties, and endless absurdities; while the opposite theory reconciles 
and harmonizes all the provisions of the Delaware constitution relating to the sub¬ 
ject under consideration. 

(6) That Governor Watson’s exercise of the office of senator in the joint assembly 
on the 9th day of May, 1895, and of the office of president of such joint assembly 
was illegal, and his vote therein for United States Senator a nullity. 

In determining the above propositions, your committee reach the further following 
conclusions: 

(7) In determining the question as to whether the Delaware senate on May 9,1895, 
acted upon or judged, either actually or constructively, the qualifications of Governor 
Watson to a seat in the senate, the journal entries of the proceedings of the Delaware 
senate of that date are conclusive as to the number and names of senators present, the 
motions submitted, the votes cast, and of all the proceedings had, and can not be con¬ 
tradicted by ex parte affidavits. 

(8) The right which undoubtedly belongs exclusively to the Delaware senate to judge 
of the elections, returns, and qualifications of members, does not vest in such senate 
any such exclusive right as would conclude the Senate of the United States to deter¬ 
mine by construction whether the constitution of the State of Delaware does or does 
not recognize a certain seat in the senate as subject to occupation; nor does it include 
the power to admit members to seats not recognized by the constitution of the State as 
subject to occupation, or, if subject to occupation, to fill them in a manner or by a person 
which the State constitution forbids. 

(9) Your committee, applying these rules, find as a matter of fact the Delaware 


HENRY A. DU PONT, OE DELAWARE. 


851 


State senate never judged of the qualifications of Governor Watson to a seat in the 
senate, either on the 9th day of May, 1895, or at any other time subsequent to the 
date of his inauguration as governor. 

(10) That on May 9, 1895, the date on which Mr. Du Pont claims to have been 
elected, the legislature of the State of Delaware consisted of but 29 members; there 
were in the joint assembly on that date but 29 members of such legislature entitled 
to seats in such joint assembly and entitled to be counted and vote therein. As Mr. 
Du Pont received 15 votes, being a majority of the whole number entitled to be cast 
in such joint assembly, and a majority of all the legal votes cast therein, he was 
legally elected Senator from the State of Delaware for the full term commencing 
March 4, 1895, and is entitled to be seated. 

(11) The fact that such election is not certified by the governor of the State in 
pursuance of the statute on that subject, does not invalidate such election in any 
respect. 

Your committee, therefore, report to the Senate the following resolution and 
recommend its adoption: 

Resolved , That Henry A. Du Pont is entitled to a seat in the Senate from the State 
of Delaware for the full term commencing March 4, 1895. 

VIEWS OF THE MINORITY. 

Mr. Turpie, from the Committee on Privileges and Elections, submitted the follow¬ 
ing views of the minority in the case of Henry A. Du Pont: 

The legislature of the State of Delaware is composed of 30 members—9 senators and 
21 representatives. The senators are elected for four years, the representatives for 
two years. 

A regular biennial session of the general assembly of said Slate began, in pursuance 
of law, on the first Tuesday in January, 1895, upon which devolved the election of 
the United States Senator to fill a vacancy made by the expiry of the term of Hon. 
Anthony Higgins, upon which day aforesaid all the members of each house appeared, 
and both houses were duly organized for the transaction of business. 

Among the members of the senate so appearing was the Hon. William T. Watson, 
who had been duly elected, at the general election held in November, 1892, a senator 
from the county of Kent, in said State, for the term of four years, who was duly 
sworn and admitted to a seat in the senate on the last day aforesaid, and was subse¬ 
quently, on the same day, chosen speaker of the senate. 

Afterwards, upon April 9, 1895, the legislature having been officially informed of 
the death of the Hon. Joshua H. Marvil, governor of Delaware, the speaker of the 
senate, upon whom devolved, under the constitution, the duty “to exercise the office 
of governor” until a governor should be elected by the people, was in open senate, 
and in the public session thereof, sworn to support the Constitution of the United 
States, of the State of Delaware, and to perform ‘ ‘ the duties of the office of governor 
with fidelity.” 

On the same day, immediately thereafter, the senate elected the Hon. William T. 
Records, a senator from the county of Sussex, as speaker of the senate pro tempore, 
in accordance with the provision of the constitution of the State, “Each house whose 
speaker shall exercise the office of governor may choose a speaker pro tempore.” 
The speaker pro tempore thus chosen presided while and whenever the speaker of 
the senate was absent during the remainder of the session. 

The members of the two houses so organized met in joint convention on the second 
Tuesday after their organization, pursuant to the law of Congress July 25, 1866, to 
elect a Senator of the United States. Two ballots were taken on that day, and at the 
close of each the announcement was made by the speaker of the senate, who acted 
as president of the joint convention, and who continued so to act whenever he was 
present at the sessions of the same, “that no person having received a majority of 
all the votes cast for United States Senator, there was no election.” 

On each succeeding day of the session, except Sundays, the members of the two 
houses met in joint convention, voted for United States Senator, up to and including 
the 9th day of May, 1895, which was the last day of the session. 

On this last day of the session 28 ballots were taken for United States Senator, and 
at the close of each ballot the same result of no election, for the same reason, was 
declared in the same words as those above quoted. 

The last ballot cast for United States Senator, on the last day of the session afore¬ 
said, is recorded as follows: 

Votes. 


For J. Edward Addicks.-. 4 

For E. W. Tunnell. 1 

For H. A. Du Pont. 15 

For Ed. Ridgley.—. 10 






852 


SENATE ELECTION CASES. 


It shows that there were 30 votes cast, and of these votes Mr. Du Pont received 15, 
an equal number of votes were cast for other persons—for Mr. Addicks 4, for Mr. 
Tunnell 1, and for Mr. Ridgley 10. 

Thereupon the speaker of the senate declared no person having received a majority 
of all the votes cast for United States Senator, there was no election, and the two 
houses adjourned sine die. 

In this opinion, action, and decision of the joint convention, that there was no 
election, we concur. It is not conceived how 15 can be a majority of 30. 

That a majority of all the members of the legislature is necessary to a choice when 
all are present and voting we think is clear, not only from the act of Juty 25, 1866, 
but from the language of the Constitution itself upon this subject, prescribing that 
“two Senators from each State shall be chosen by the legislature.” Such a choice 
is made by preference and is only indicated by a number of votes greater than that 
cast for all or any others voted for. 

OBJECTIONS TO THE VALIDITY OF THE ACTION AND VOTE OF THE SPEAKER OF THE 

SENATE. 

The record shows that Hon. Mr. Watson, the speaker of the senate, appeared, 
qualified, and took his seat in the senate on the first day of the session, without pro¬ 
test or objection, and continued to act as a senator and as speaker of the senate; 
whenever he was present, up to the time of the final adjournment. 

The action of the senate in allowing him to be qualified and seated as a senator 
from the county of Kent was in effect an adjudication of the most public and solemn 
character that he was a senator, a member of the senate, and entitled to act as such. 
Such adjudication remains unchanged. There are only three ways in which he could 
lose or be deprived of his right to vote or act as a senator, and, by consequence, of 
his right to vote and act as a member of the joint convention. One of these is the 
act of God—death; the second is by his own act—resignation; the third is by the 
action of the senate adjudging the vacation of his seat, either by ouster or expulsion, 
for such causes as the senate of the State of Delaware might adjudge sufficient to 
disqualify him as a senator. There has been neither death, resignation, nor adverse 
adjudication in his case, and he remains in all respects a senator, as fully qualified 
and as lawfully entitled to act as such as upon the day when he first appeared and 
was sworn as a senator. 

It is claimed that when the exercise of the office of governor devolved upon him 
as speaker of the senate, that, ipso facto, he lost the office and rights of such senator. 
That these dual functions are incompatible. 

We think it clear, from the language of the constitution of the State of Delaware, 
that these dual functions are expressly made compatible and competent by the terms 
of that instrument. We do not think incompatibility, in legal terms or effect, such as 
to oust a man from one office and to confer upon him another, is to be derived from 
general considerations resting in nubibus; but that such incompatibility must be 
plainly inferred from the text of the constitution or statutes of the State or Govern¬ 
ment to be affected thereby. 

Besides this, nothing is more familiar to us in American legislation than the enact¬ 
ment of statutes in contravention of the common law. Statutes in aid of the common 
law are quite frequent, but we think that statutes in contravention thereof are more 
numerous. 

It was formerly held at common law that one could not be a witness in any case 
where he had a pecuniary interest. The common law held that there was a sharp 
and neutral incompatibility, founded upon grounds of the highest public policy, 
between the two positions of a witness in a cause and an interested party therein. 
In direct contradiction to this principle, and in complete neutralization of its effects, 
statutes now provide that parties in suits, and all others, notwithstanding their inter¬ 
est therein, may testify as witnesses. So that the question is not what may be 
incompatible at common law, but what is the statute in any given case. The statute 
takes the place of the common law and abrogates it. 

The constitution of the State of Delaware is a statute of the highest character, 
enacted by the people themselves. 

It was entirely competent for the makers of that instrument, and for the people in 
its adoption, to abrogate any common law of incompatibility, if such existed, and to 
make it competent that the speaker of the senate should, notwithstanding any natural 
or common-law incompatibility, take upon himself for the time “the exercise of 
the office of governor,” still retaining his office of senator and speaker. In any con¬ 
ceivable case the common law must yield to the statute—much more must it give 
way to a constitutional enactment. 


HENRY A. DU PONT, OF DELAWARE. 


853 


The constitution of Delaware does not provide that the speaker of the senate, on 
the death of the governor, shall either be or become governor, but only that such 
speaker “ shall exercise the office of governor.” It does not provide that he shall, 
in such an event, cease to be speaker, or cease to be senator, or that a vacancy exists 
in either position; and we do not think that we can amend the constitution of a 
State by the process of an argument in a contested seat here. 

Not only is no vacancy created in such instance by the devolution of “the exercise 
of the office of governor” upon the speaker of the senate, but the constitution of the 
State expressly provides that “each house, whose speaker shall exercise the office of 
governor, may choose a speaker pro tempore”—that is, a temporary speaker to pre¬ 
side in the room of the permanent speaker when he may be absent, thus plainly 
implying that there is no vacancy in the office of speaker, and that there is no 
vacancy in the office of senator or representative (as no one could be speaker except 
a member of one of the houses) by this devolution of the exercise of the office of 
governor. 

In section 14 of the constitution, where it is provided that the speaker of the house 
“shall exercise the office of governor” if there be no speaker of the senate, the dis¬ 
tinction between the speaker of either house exercising the office of governor, and 
the governor as such, is very clearly implied in the phrase, “until a governor 
elected by the people shall be duly qualified.” And in the same section, afterwards, 
the person elected governor is distinguished from the temporary occupant exercising 
the office of governor by the recurrence three times of the phrase, “the person who 
exercises the office of governor.” And when the contingency arises of a vacancy in 
the office of governor, and there he no other person who can exercise the office of 
governor within the provisions of the constitution, the general assembly shall pro¬ 
ceed to elect ‘ ‘ a person to exercise the office of governor until a governor elected by 
the people shall be qualified.” 

This person so chosen is not called governor, but a “ person to exercise the office 
of governor.” 

And when, in the case of a contested election, someone is to be designated to perform 
gubernatorial duties, it is provided “ that the speaker of the senate or the speaker of 
the house who may then be in the exercise of executive authority” shall continue 
therein until a determination of the contest. It is manifestly expressed that the 
person exercising the executive authority is not the governor, but that he is, and 
remains, and must continue to be speaker of the senate, or speaker of the house, 
notwithstanding the fact that the “exercise of the office of governor” may for 
the time being devolve upon him. 

If this interpretation of the constitution of the State were at all doubtful, it is 
abundantly sustained by practical, contemporaneous, and continuous construction in 
the actual administration of the government of Delaware. Three persons, upon 
each of whom at different times devolved, under this clause, the exercise of the office 
of governor (John Sykes, Jacob Stout, and Caleb Rodney), speakers of the senate, 
who temporarily exercised the executive authority as such speakers, after they had 
exercised the office of governor ad interim, returned to the senate and served out the 
terms for which they had been elected as senators in the senate. No suggestion was 
made that they had vacated their office as senators or had become governors of the 
State of Delaware by reason of the temporary exercise of executive duties imposed 
upon them by section 14, article 3, of the constitution. 

As to the provisions of section 2, article 12, of the constitution, and section 5 of 
article 3, we think there is no real conflict between them and the other provisions 
cited, as to the succession of the executive authority. 

One of the main provisions in the constitution of Delaware, declared and provided 
for by three fundamental clauses in the instrument, is that in certain contingencies 
the speaker of the senate “shall exercise the office of governor” for the time being 
therein designated. To say that a provision that no senator shall be governor, or 
that no governor shall be senator at the same time is not in any conflict with the 
provisions for the temporary exercise of the executive authority by the speakers of 
either house. 

Section 12 of article 2 and section 5 of article 3 evidently relate to the regular 
elective term of the offices therein named, and provide that such official terms of 
these positions shall not be held by the same person at the same time. They do not 
at all relate to casual vacancies in the executive office or to the constitutional means 
of supplying them. As these two sections contain no allusion to temporary vacan¬ 
cies, so they are not and can not be in conflict with the provisions of the instrument 
elsew'here appearing intended to provide for such contingencies. 

Besides, we understand it to be well-settled law that the different clauses of a 
written instrument, even those of an ordinary contract, must be always construed so 
as to be consistent with each other. With such a grave public State paper as the 


854 


SENATE ELECTION CASES. 


constitution of Delaware the rule is yet more imperative. We submit, therefore, 
that a proposed construction of this constitution which makes a direct and unavoida¬ 
ble conflict and contradiction between the clauses and sections of the same must be 
false and unfounded. 

It is not to be presumed, and indeed it is in our view preposterous, that the people 
of that State should have placed in their organic law contradictory provisions on any 
subject. 

WHO ARE LAWFUL JUDGES OF QUALIFICATIONS AND INCOMPATIBILITY. 

The senate of the State of Delaware is made by law the judge of the elections, 
returns, and qualifications of its own members. In the case presented by Mr. Du 
Pont against the legality of the vote of Mr. Speaker Watson as a member of the joint 
convention, no question is made as to the election and return of Mr. Watson as a 
senator. The whole case rests upon the question of his qualifications. And even 
upon the subject of qualification, it is not denied that at the time he took his seat in 
the senate, he was fully and legally qualified to act and vote therein; but it is ear¬ 
nestly insisted that after he had taken his seat, he did and performed certain acts and 
duties which deprived him of his legal qualifications, and had rendered him unquali¬ 
fied, disqualified, and incompetent to vote or act as a member of the senate or of the 
joint convention. 

This position of the claimant, Mr. Du Pont, raises the most serious question in this 
case, which is, as to who can lawfully decide and determine as to whether or not the 
acts of Mr. Speaker Watson referred to destroyed or suspended his qualifications as 
a senator, and by consequence as a member of the joint convention. 

We think that the senate of the State of Delaware, -whereof he was a member, is 
the sole tribunal which could either hear or determine lawfully these objections to 
the qualifications of Senator Watson. 

It is charged that he was absent from the senate from the 9th day of April, 1895, 
until the day of the joint convention. If he were absent in discharge of any duties, 
executive or official by the law of Delaware, incompatible with the office of senator, 
or if his absence was contumacious and perverse, this might have constituted a cause 
for the judgment of the State senate for his ouster from the senate, his supension as 
a senator, or the vacation of his seat. If, whether present or absent, during his term, 
he had committed any act in violation of the laws and constitution of his State, or of 
the United States, this might have constituted a cause for the judgment of the State 
senate against him for his suspension or for his expulsion; the vacation of his seat 
and office, and for the issuing of a writ of election for the choice of his successor as 
senator from the county of Kent. 

Causes for judgment of suspension, ouster, vacation, or expulsion against a sitting 
member or senator are not, however well founded, judgments. They have legally 
none of the force or effect of judgments or adjudications. There is no judgment or 
adjudication shown in the record or journal of the senate of Delaware on any of these 
objections to the qualifications of Mr. Watson as a member of that body. 

If these charges or objections to his qualifications had been presented and heard 
in the State senate and judgment of suspension, ouster, and vacation had been ren¬ 
dered against him the case of Mr. Du Pont might have been fully made out. This 
Senate and court of the United States would have been bound thereby. If such a 
hearing had terminated in his favor the same result would have followed. The 
judgment of the State senate is a finality. 

As there w r as no hearing or judgment in respect to such charges in the State senate 
the seat and office of Senator Watson remains undisturbed and unaffected thereby. 

Because the State senate did not pass upon these charges or objections to the qual¬ 
ifications of their fellow-member we in this body are not by law in any way author¬ 
ized to take jurisdiction. We have no authority to originate, hear, or determine any 
objections to the qualifications of those who acted and voted as members of the senate 
of the State, or to revise or review their action or nonaction in the premises. 

These considerations rest upon the great doctrine of the due distribution of powders, 
and of the distinctive provinces of independent powers, to which the claimant in this 
case has so strongly appealed, and which we now justly invoke as showing the error 
of his position. 

The constitution of Delaware, like that of the other States, and of the United States, 
declares that “each house shall judge of the elections, returns, and qualifications of 
its own members.’' 

Each House of Congress is a court in such cases for the judgment of its own mem¬ 
bers, but neither is a court or can be in any form a tribunal to judge of the qualifica¬ 
tions of any member of the State legislature. 

It would be just as reasonable and lawful that the State senate of Delaware should 


HENRY A. DU PONT, OF DELAWARE. 855 

adjudge and decide a contested seat in this body from that State as that we should 
decide here a contested seat in the senate there. 

Especially is this the law when it is sought by a kind of ex post facto sentence to 
unseat by a judgment of the United States Senate a member of the State senate of 
Delaware after he has acted and voted there. 

The Senate of the United States has often considered and decided the question as 
to which of two bodies claiming to be the legislature of a State is a lawful legislature 
entitled to hold a joint convention for the election of a United States Senator. The 
members of this body, sitting as a court, as we are now sitting, has frequently decided 
as to two contesting branches of a legislature which was the lawful senate or house 
of the general assembly, but the Senate has always declined to take jurisdiction or 
to adjudicate the title of any individual member of the State legislature who acted 
and voted as such in the joint convention. 

In Sykes v. Spencer (p. 521 of Taft’s Senate Election Cases) the following is the 
opinion of the majority: 

“In the opinion of your committee it is not competent for the* Senate to inquire as 
to the right of individual members to sit in a legislature which is conceded to have 
a quorum in both houses of legally elected members. But, undoubtedly, the Senate 
must always inquire whether the body which pretended to elect the Senator was the 
legislature of the State or not, because a Senator can only be elected by the legislature 
of a State.” 

And the minority opinion in the same case, upon the same point, is as follows: 

“Each house of the general assembly of Alabama is the exclusive judge of the elec¬ 
tion returns and qualifications of its members, and any inquiry into such question by 
the Senate of the United States would be as unwarranted by precedent as it would 
prove dangerous in practice. 

“In a contest like the one now under consideration between two persons elected to 
the Senate by different bodies, each claiming to be the legislature of the State, the 
Senate may look into the constitution and laws of the State to ascertain which of the 
two bodies, if either, has been organized in conformity with their provisions, but it 
can not rightfully inquire into the election returns and qualifications of the members 
of either body. 

“If the Senate could enter upon such inquiry, where would be the limitation upon 
its prerogatives? Could it not as legitimately inquire into the manner in which any 
election officer has performed the duties of his office, and even into the qualification 
of the electors who had voted for members of the State legislature? 

“The undersigned would not restrict the Senate in its constitutional right to judge 
of the election returns and qualifications of its own members, but would regret its 
assumption of powers belonging exclusively to the two houses of the State legisla¬ 
ture. ’ ’ (Sykes v. Spencer, p. 528.) 

The case of Sykes against Spencer was heard and determined in 1873 and the prin¬ 
ciple thus decided has been constantly adhered to since that time. In that case no 
action or adjudication had taken place upon the contested cases of individual mem¬ 
bers subsequent to their admission, and the decision of the minority and majority 
upon this point rests upon the action and recognition of persons voting in the joint 
convention as members of either the senate or house, and consequently of the 
legislature. 

In the case of David Turpie, decided in May, 1888, the same point is decided where 
there had been an adjudication by the Indiana State senate unseating one of its 
members and seating a contestant. This Senate decided that it would not revise 
such adjudication—that it would not inquire into the motives or purposes of the 
adjudication. 

“The committee are of the opinion that the facts offered, if proved, will not war¬ 
rant the Senate in declaring the sitting member not entitled to his seat. There can 
be no doubt that the body in question was the constitutional senate of Indiana. 

“ The journals of both houses of the legislature of the State have been submitted 
to us. It appears that the body was recognized as the senate by the governor and 
by the house of representatives. Statutes to which its constitutional assent was 
necessary were enacted and have become part of the law of the State. 

“ We also think that the judgment of the senate of Indiana as to the title of Messrs. 
Branahan and McDonald, the two members in question, to their seats is binding upon 
the Senate of the United States. This body is made by the Constitution the judge 
of the election, qualifications, and returns of its members. The senate of Indiana is 
likewise the judge of the election, qualifications, and returns of its own members. 
We must determine all questions arising out of the proceedings of the electors. But 
who sustain the characters of electors is to be determined by the legislative body of 
the State. . 

“We can not inquire into the motives which control its judgment. In rendering 


856 


SENATE ELECTION CASES. 


that judgment, whether it shall give a hearing to parties, permit debate, examine wit¬ 
nesses, act upon evidence or without evidence, are matters within its own discretion. 
If that discretion were exercised in the manner charged by the remonstrance, a 
majority think that a public crime was committed, for which the offenders are 
responsible to the people of Indiana. But we can not try the question.” (Case of 
David Turpie, p. 625.) 

It is thus made very plain that the common law of the United States Senate is well 
settled. When the title of an individual member of the legislature who has once 
been seated has been determined by a subsequent adjudication of the house to which 
he belongs, such judgment will not be here disturbed or inquired into. And if there 
has been no such subsequent adjudication by the State senate or house, the title of 
the senator or representative rests upon the record of his original credentials and 
qualifications as a member, and will not here be questioned. 

When a person claiming to be a member of the legislative body presents his 
credentials of election, and the record shows that he was thereupon admitted to a 
seat and sworn in as*a member of the same, his title to the seat is absolute, unques¬ 
tioned, and so continues until the house of which he is a member has adjudicated that 
he is not entitled to his seat, or that some other person is entitled thereto; such is 
the decision of the Senate in the following case: 

“The majority of persons having a right to seats in the house of representatives 
have a right to organize that house and to transact all its lawful business, including 
the enactment of laws and the election of Senators. Persons who have the certificates 
of election have such right to seats. Every act of the assembly in which they take 
part, and to which their consent is necessary, has as absolute validity as if their 
title had been affirmed by an adjudication of the house itself. Their title is not, as 
is sometimes carelessly said, a prima facie title. It is an absolute title, continuing 
until the house itself has adjudicated that some other person be admitted to their 
place. This adjudication is only operative for the future, and has no retroactive 
effect whatever. When the house makes the inquiry on the merits, it may treat the 
credentials as prima facie evidence upon that question. But until the house tries 
the case the credential is conclusive to all the world.” (Case of Clark and Maginnis 
v. Sanders and Power, p. 637.) 

These decisions and judgment of the Senate are founded upon the principle that 
the States, by constitutional ordinances, have made each house of the State legisla¬ 
tures the judges of the elections and qualifications of their own members; it is ultra 
vires of our powers to revise, review, consider, or pass upon any questions of this 
character. 

If the senate of Delaware had made any adjudication upon the objections alleged 
against the qualifications of Mr. Speaker Watson, we would have been bound by such 
adjudication, whether adverse or favorable to his title. If they made none, this does 
not give the United States Senate any authority to adjudge the case. The jurisdic¬ 
tion of the two houses of the State legislatures, by their own authority, is original 
and exclusive. 

These constitutional enactments have such effect as not only to make the members 
of each house the judges in each case, but also to forbid that the members of any 
other tribunal shall be judges therein. 

The evidence in this case shows that William T. Watson, on the first Tuesday in 
January, 1893, held credentials signed and certified by the sheriff of the county of 
Kent, in the State of Delaware, and by the inspectors of the elections in said county, 
showing that he had been duly elected senator from said county at the general elec¬ 
tion held in November, 1892, in said county, for the term of four years—that is, until 
November, 1896. 

The record of the journal of the senate of the State of Delaware shows that on the 
first Tuesday of January, 1893, aforesaid, the day fixed by law for the meeting for the 
general assembly, William T. Watson, aforesaid, appeared and presented this certifi¬ 
cate of election as the credentials of his seat and title as a senator. 

The journal shows that these credentials were read and spread at large upon the 
record of that day, and that thereupon he, the said Watson, was sworn and admitted 
as a senator. Mr. Watson yet holds these credentials; the record thereof and the pro¬ 
ceedings thereupon are yet remaining; and these credentials so remaining of record 
are, as is said in the case of Clark and Maginnis v. Sanders and Power, an absolute 
title, and they continue to be a full, complete, and absolute title until the senate of 
Delaware has for some cause pronounced and adjudged them to be no longer valid. 

As the senate of the State of Delaware were lawfully, in the first instance, the 
exclusive judges of the validity of these credentials, so they continue to be the ex¬ 
clusive-judges of their invalidity, if from any cause whatever disqualifications have 
occurred which might vitiate or destroy their legality. Any adjudication by the 
Senate of the United States upon such a subject is beyond our province. Such action 


HENRY A. DU PONT, OF DELAWARE. 


857 


upon our part would be an intrusion, an interference, an unwarrantable usurpation 
of power vested in another body, ruinous to the autonomy of the States and disas¬ 
trous to the character of this body whose members purport not to be chosen by their 
own action, but by that of the legislatures of the States. 

There is not and has not been up to this day any adjudication by the senate of the 
State of Delaware adverse to the title of Mr. Watson as a member of that body. A 
careful search and inspection of the record and journal of the State senate shows no 
such adjudication. It could only be shown by the record. 

The journal does show, as above recited, that he was admitted, sworn, and seated 
upon his aforesaid credentials. It shows that he was afterwards chosen speaker of 
the senate; that he continued to act as senator and as speaker whenever he was 
present, up to and including the last day of the session, when both houses adjourned 
sine die; that during the entire session, whenever he was present, he voted and 
acted as a senator in the joint convention of the two houses, and acted as presiding 
officer of such convention. 

If the senate of the State of Delaware were to-day convened, and had adjudged in 
this case in hearing before them that Mr. Watson’s seat was, for any or all of the 
causes alleged in the claim of Mr. Du Pont, vacant, and that he was no longer a 
a senator, such a judgment at this time could not affect in any manner his action or 
vote in the senate or joint convention while he acted as a senator. 

No one would contend for a moment that such a judgment is retroactive. The 
acts of the senator de facto are as valid as if de jure. How much less could any 
adjudication in this body at this time legally invalidate his former vote, seat, or 
title as a senator. 

We therefore conclude in this case— 

First. That if there be any questions as to the lawful qualifications of William T. 
Watson to act and vote as a senator, and, by consequence, as a member of the joint 
convention, this is not the place, the time, or the tribunal to either hear or determine 
such questions. 

Second. The senate of the State of Delaware had paramount and exclusive juris¬ 
diction to adjudge such questions, and, whether they exercised such jurisdiction or 
not, the Senate of the United States has no jurisdiction in the premises. 

Third. That Mr. Watson having acted and voted as a senator and as a member of 
the joint convention at the time when the vote was taken under which Mr. Du Pont 
claims his election to a seat in this body, he is to be counted as a member of the 
legislature of Delaware in joint convention assembled; that the whole number of 
members voting, being the whole number of members of both houses, was 30; that 
Mr. Du Pont did not receive a majority of this whole number; that we can not make 
his vote of 15 a majority of such whole number by subtracting therefrom the vote of 
one whose right and title to vote is not shown by the record to have been adjudged 
against by the body of which he acted as a member. 

DAVID TURPIE. 

JAMES L. PUGH. 

GEO. GRAY. 

JNO. M. PALMER. 

(Cong. Rec., vol. 28, pp. 1828-1861.) 

[The appendix to the report of the Committee on Privileges and Elections, con¬ 
sisting of a copy of the journal entries of the proceedings of the Delaware senate of 
dates April 9 and May 9, 1895, the certificate of the election of Mr. Du Pont signed 
by the speaker of the Delaware house of representatives and attested by the clerk of 
the house, and certain affidavits, are omitted. These documents may be found in 
Senate Report No. 289, Fifty-fourth Congress, first session, and also in the Congres¬ 
sional Record, vol 28, pp. 1828-1861.] 


The resolution submitted to the Senate by the Committee on Privileges and Elec¬ 
tions relative to the right of Mr. DuPont to a seat in the Senate as a Senator from 
the State of Delaware was debated in the Senate March 4,1896 (Congressional Record, 
vol. 28, pp. 2419, 2420, 2421-2438); March 5, 1896 (ibid., pp. 2477-2485); March 9, 
1896 (ibid., pp. 2595-2601); March 10, 1896 (ibid., pp. 2639-2649); March 11, 1896 
(ibid., pp. 2684-2691); March 12, 1896 (ibid., pp. 2728-2733); March 18, 1896 (ibid., 
pp. 2921-2931); March 20, 1896 (ibid., pp. 3004-3009); March 31, 1896 (ibid., pp. 
3378-3392); April 1,1896 (ibid., pp. 3423-3436); April 2, 1896 (ibid., pp. 3469-3479); 
April 13, 1896 (ibid., pp. 3898-3912); April 14, 1896 (ibid., pp. 3943-3945 and 3946- 
3954); April 15, 1896 (ibid., pp. 3981-3996); April 16, 1896 (ibid., pp. 4031-4039); 
May 4,1896 (ibid., pp. 4768-4772); May 14,1896 (ibid., pp. 5226-5236); May 15,1896 
(ibid., pp. 5286-5294). 


858 


SENATE ELECTION CASES. 


[Extracts from remarks of Mr. Mitchell, of Oregon, in support of the resolution reported by him that 

Mr. Du Pont was entitled to a seat from the State of Delaware. Found in the proceedings of March 

4,1896, in the Congressional Record, vol. 28, pp. 2421, 2422, 2423, 2424, and 2425.] 

“Mr. President: 

******* 

“The legislature of the State of Delaware consists, when each seat is filled, of 
thirty members. The senate consists of nine members, the house of representatives 
of twenty-one members. There are in the State of Delaware but three counties in 
all, namely, Newcastle, Kent, and Sussex. Under the Delaware constitution each 
of these counties elects three senators and seven representatives to the general assem¬ 
bly of the State, thus constituting a membership in the senate of nine and in the 
house of twenty-one. The senators are elected for four years and the representatives 
for two years. A person to be a senator must have attained to the age of 27 years, 
while to be a representative to 24 years. 

“The legislature of the State of Delaware is, by the constitution of that State, des¬ 
ignated as a 1 general assembly,’ consisting of a senate and a house of representatives, 
and all legislative powers of the State are by such constitution vested in such general 
assemblv. 

‘ ‘A regular biennial session of this general assembly, each of the thirty members 
of which had been previously duly elected, each having the necessary qualifications, 
convened at Dover, the capital of the State, on the first Tuesday in January, 1895. 
The duty of electing a United States Senator to succeed Senator Higgins, then a Sen¬ 
ator from the State of Delaware, and whose term was to expire March 4, 1895, 
devolved upon this general assembly. This general assembly was duly organized on 
the day it met—that is, the second Tuesday of January, 1895—by the election of Wil¬ 
liam T. Watson, a senator from the county of Kent, as speaker of the senate, and the 
election of Henry T. McMullen, a member from the county of Newcastle, as speaker 
of the house of representatives. 

‘ ‘ On the second Tuesday after the organization, in accordance with the act of Con¬ 
gress of July 25, 1866, providing the manner of electing United States Senators, the 
members of the two houses met in joint assembly at 12 o’clock meridian for the pur¬ 
pose of electing a Senator of the United States. Two ballots were taken on that day 
without anyone having been chosen. On each succeeding day, except Sunday, the 
members of the two houses met in joint assembly and voted for United States Senator 
up to and including May 9, 1895, that being the last day of the session of that joint 
assembly. On the last day of the session, May 9, 1895, 28 separate ballots were 
taken in the joint assembly. On the last ballot there were 30 votes cast, thqre being 
in such joint assembly thirty persons, each claiming to be a member of either the 
senate or house of the Delaware general assembly, and each claiming the right to a 
seat in such joint assembly and the right to be included and counted and to vote 
therein for a United States Senator. On the last ballot four persons were voted for 
for United States Senator—that is to sav, Henry A. Du Pont, Ed. Ridgley, J. Edward 
Addicks, and Ebe W. Tunnell—each of the persons present claiming to be members 
voting as follows, and each of the candidates receiving the following votes: 


****** * 
“The vote as above ascertained having been announced as follows: 

Votes. 

H. A. Du Pont. 15 

Ed. Ridgley. 10 

J. Edward Addicks. 4 

Ebe W. Tunnell. 1 


“ It will be observed there were in this joint assembly and voting on this last bal¬ 
lot 30 persons, each claiming a right to be there and vote as a member of the general 
assembly of the State of Delaware. It is a fact, as suggested by the Senator from 
Illinois [Mr. Palmer], that the vote was the same on each of the other 27 ballots 
taken that day. 

“It is furthermore a fact that the claimant, Henry A. Du Pont, received but 15 
votes. Consequently, if it is true that each of said 30 persons so present and voting 
had a right to be present and vote for a United States Senator, then the claimant, 
Mr. Du Pont, did not receive a majority of those present and voting, and in such 
event he could not be elected, as it is conceded it requires the votes of a majority of 
the members of the legislature, provided all who are members and who have a right 
to vote for Senator are present and voting. If, however, the fact is as it is contended 
by the committee, and by all those who favor the seating of Mr. Du Pont, that 1 of 
the 30 persons so present and voting was either not a member of the Delaware sen- 






HENRY A. DU PONT, OF DELAWARE. 


859 


ate, or had no right to exercise the office, or any of the functions of senator, and con¬ 
sequently had no right to be in such joint assembly or to vote for Senator therein, 
then it follows there were but 29 legal votes cast on said last ballot, and not 30, and 
consequently, as it is conceded the claimant, Mr. Du Pont, received 15 votes, no one 
of which was the vote of a person so alleged to be unlawfully present and to have 
voted illegally, it follows he had a majority of all the legal votes cast, and was there¬ 
fore duly elected. 

“ It is contended by the claimant, and the Committee on Privileges and Elections 
believe such contention to be well founded, that William T. Watson, one of the per¬ 
sons present in such joint assembly and voting for Senator, and at no time voting for 
Mr. Du Pont, but having on each ballot voted for Ed. Ridgley, and claiming the 
right to be there as a senator from the county of Kent and as speaker of the Dela¬ 
ware senate, was on said date the governor of the State of Delaware, and therefore, 
for that reason, he had not on that date, May 9,1895, any right whatever, under the 
constitution of the State of Delaware and the law of the land, to exercise the office 
of State senator, or any of the functions pertaining thereto, and had not, therefore, 
any right to be present in such joint assembly, no right to vote or be counted therein, 
and that his presence and voting were illegal, wholly ultra vires , and his vote abso¬ 
lutely void. 

******* 

“The constitution of the State of Delaware, section 14, Article III, provides, among 
other things, as follows: 

“ ‘Sec. 14. Upon any vacancy happening in the office of governor, by his death, 
removal, resignation, or inability, the speaker of the senate shall exercise the office 
until a governor elected by the people shall be duly qualified. If there be no speaker of 
the senate, or upon a further vacancy happening in the office, by his death, removal, 
resignation, or inability, the speaker of the house of representatives shall exercise 
the office until a governor elected by the people shall be duly qualified. If the person 
elected governor shall die, or become disqualified before the commencement of his 
term of office, or shall refuse to take the same, the person holding the office shall con¬ 
tinue to exercise it until a governor shall be elected and duly qualified. ’ 

******* 

“This section furthermore states: 

“ ‘The governor shall not be removed from his office for inability but with the 
concurrence of two-thirds of all the members of each branch of the legislature.’ 

‘ ‘ Before proceeding to discuss the foregoing and the several other provisions of the 
constitution of the State of Delaware, it is well to inquire precisely what facts are 
conceded by all parties to this controversy. The following facts I believe are admitted, 
substantially at least, by those opposing the admission of Mr. Du Pont, including the 
minority of the Committee on Privileges and Elections: 

“First. That William T. Watson, a duly elected and qualified senator from the 
county of Kent, was, on the first Tuesday of January, 1895, duly chosen speaker of 
the Delaware senate, entered on his duties as such speaker on that date, and contin¬ 
ued to serve as such until April 9, 1895. 

“Second. That on April 8, 1895, Joshua H. Marvil, then governor of the State of 
Delaware, died, thus creating a vacancy in the office of governor by death, which 
vacancy William T. Watson, speaker of the Delaware senate, became eligible to fill 
under the constitutional provisions I have quoted. 

“Third. That on the day following the death of Governor Marvil, namely, on 
April 9, 1895, said William T. Watson, then speaker of the Delaware senate, was 
duly inaugurated governor of the State of Delaware, and the following oaths of 
office, required by the constitution to be administered to the governor of the State 
on his taking office, were administered to him. I quote as to the record of this 
ceremony from the journal entries of the Delaware senate of the proceedings therein 
April 9, 1895: 

“‘The Hon. James L. Wolcott then administered, in the presence of the members 
of the senate, to Hon. William Tharp Watson, speaker of the senate, the following 
oaths of office as governor, to w T it: 

“‘“I, William T. Watson, do solemnly swear on the holy evangels of Almighty 
God that I will support the Constitution of the United S.tates of America. So help 
me God.” 

“‘“I, William T. Watson, do solemnly swear on the holy evangels of Almighty 
God that I will support the constitution of the State of Delaware. So help me God.” 

“ “‘I, William T. Watson, do solemnly swear on the holy evangels of Almighty 
God that I will perform the duties of the office of governor of the State of Delaware 
with fidelity. So help me God.” ’ 


860 SENATE ELECTION CASES. 

‘‘That immediately upon such oaths being administered, he, William T. Watson, 
entered upon the exercise of the office of governor, and has ever since continued in 
such office, and was on May 9, 1895, and still is, governor of the State of Delaware. 

“Fourth. That from the date of his inauguration as governor and entering upon 
the exercise of such office, April 9, 1895, until about noon on May 9, 1895, a period 
of one month, said William T. Watson, governor of the State of Delaware, did not at 
any time resume or attempt to resume his seat in the Delaware senate or his seat as 
speaker of such senate. 

“Fifth. That from April 9,1895, when Speaker William T. Watson was inaugurated 
governor and entered upon the exercise of such office, his name was dropped from 
f he roll call of the Delaware senate and was never once called thereafter, either as 
senator or speaker of the senate, on any roll call had on any call of the senate, or on 
any bill, resolution, or motion during the remainder of such session of the general 
assembly of the State of Delaware. 

‘ ‘ Sixth. That on May 9,1895, about the hour of 12 meridian, and but a few moments 
before the members of the general assembly of the State of Delaware were to meet, 
and did meet, in joint assembly to elect a Senator, William T. Watson, then gover¬ 
nor of the State of Delaware, and then exercising such office and all its functions, 
entered the senate chamber, took the chair of the speaker of the senate, the speaker 
pro tempore having left the chair to enable him to do so, and proceeded with the 
members of the senate to the hall of the house of representatives, and there assumed 
to act, and did act, as chairman of the joint assemby, and assumed to vote, and did 
vote, therein for United States Senator on the several ballots cast on that day, 
casting his vote on each ballot for Edward Ridgley for United States Senator. 

“Seventh. That immediately after the last ballot was taken for Senator in said 
joint assembly on May 9, 1895, and before said joint assembly dissolved, a protest 
against the right of Governor Watson to be in and to vote in such joint assembly 
was presented by Senator Samuel Alrichs, a member of such joint assembly, on 
behalf of himself and fourteen other members of such joint assembly, all of whom 
had voted for the claimant, Henry A. Du Pont. 

“This challenge, protest, and demand, as it was at the time designated, is given as 
follows in the affidavit of Senator Samuel Alrichs, of date November 25, 1895. 
******* 

“The declaration was then made by the speaker of the house that Henry A. 
Du Pont had been elected United States Senator from the State of Delaware for the 
full term commencing March 4, 1895, and the joint assembly then dissolved sine die. 

“Eighth. That the election of the claimant, Henry A. Du Pont, as Senator from 
the State of Delaware, on May 9, 1895, for the full term commencing March 4, 1895, 
was certified to by Hon. Henry H. McMullen, speaker of the house of representatives 
of the State of Delaware, and attested by Edgar T. Hastings, clerk of such house of 
representatives, by a certificate, of which the following is a copy, which I ask may 
be inserted as a part of my remarks: 

******* 

“Tenth. That since 1792 nine speakers of the senate and one speaker of the house 
of representatives of the general assembly of the State of Delaware have succeeded to 
the office of governor, pursuant to the provisions of section 14 of Article III of the 
Delaware constitutions of 1792 and 1831. Four of these were under the constitution 
of 1792, and six under the present constitution of the State of Delaware, that of 1831, 
and in not one of these ten cases has any person, speaker of the senate or speaker of 
the house, who has in the last one hundred and four years succeeded to the governor¬ 
ship in virtue of section 14 of Article III, which is the same in number, and in so far as 
this question is concerned substantially the same in the two constitutions of 1792 and 
1831, taken any part whatever during his continuance in the office of governor in the 
proceedings of the senate or the house of representatives, nor attempted to do so, with 
the single exception of the attempt on the part of the present governor of Delaware, 
and during this time such persons have drawn the salary of governor and have not 
drawn the salary of senator or member. 

******* 

“ While the precise question involved in this case must, I concede, be determined 
by a construction of the several provisions of the Delaware constitution as throwing 
light on the subject, I propose to establish by authority these two propositions: 

“First. That it is a well-settled rule of the common law that the same person shall 
not exercise simultaneously incompatible offices, and that under the common law the 
acceptance of an office incompatible with the one already held is ipso facto a resigna¬ 
tion of the other; and 

“Second. The office of governor and legislator are, under the American system, 
incompatible, and the dual functions of the two can not be, and are not, as a general 


HENRY A. DU PONT, OF DELAWARE. 


861 


rule, exercised either in whole or in part simultaneously by the same person, and 
are never so exercised in the absence of either express or clearly implied constitu¬ 
tional or statutory authority, and the cases in which authority exists constitute the 
exception and not the rule. 

******* 

“If, therefore, it can be shown by the opposition that there is in the constitution 
of the State of Delaware either an express or necessarily implied right guaranteed to 
the citizens of that State to hold and exercise simultaneously, or to exercise simul¬ 
taneously, the two offices of governor and legislator, then, while I should hold such 
guaranty to be in conflict with the general letter and spirit of the rule on that sub¬ 
ject under our American system, I would not be disposed to deny the simultaneous 
exercise of such right to the citizens of that State. I, however, not only most emphat¬ 
ically deny that any such right exists, either expressly or inferentially, under the con¬ 
stitution of the State of Delaware, but I confidently lay down the broad propositions, 
first, that the simultaneous exercise of the two offices—those of governor and State 
senator—is directly, positively, and absolutely prohibited in the State of Delaware by 
certain express specific provisions of the Delaware constitution. 

******* 

“Section 12, Article II, of the Delaware constitution provides, among other things, 
as follows: 

“ ‘ No person concerned in any army or navy contracts, nor member of Congress, 
nor any person holding any office under this State or the United States, except the 
attorney-general, officers usually appointed by the courts of justice, respectively, 
attorneys at law, and officers in the militia, holding no disqualifying office, shall, 
during his continuance in Congress or in office, be a senator or representative.’ 

“ While section 5 of Article III is as follows: 

“ ‘ Sec. 5. No member of Congress, nor person holding any office under the United 
States or this State, shall exercise the office of governor.’ 

“ What, then, is the fair, reasonable, and, in fact, only justifiable construction of 
this first clause? Reading only the words, but yet all the words, which relate to the 
question under consideration, it would read as follows: 

“‘No person holding any office under this State shall, during his continuance in 
office, be a senator.’ 

“This language, and it is the precise language of the constitution applicable, is 
express, plain, direct, certain, and entirely free from any ambiguity. It declares in 
direct and unambiguous phrase that no person holding anyr office under the State of 
Delaware shall be a senator. That is to say, no person exercising any office under the 
State of Delaware shall simultaneously exercise the office of State senator. 

“ There is no limitation on the language used. There is nothing in, about it, or 
connected with it that would indicate for one moment that it was only intended to 
apply to such governors as might be elected by the people, and that it should not 
apply to such who became governors to fill a vacancy in virtue of the constitutional 
provision I have quoted. The office of governor is an office under the State of Dela¬ 
ware within the meaning of this constitutional phrase. No one, it would seem, 
would deny that proposition. Nor will it be denied—on the contrary, it must be 
conceded—that it is directly admitted by counsel in opposition to the claims of Mr. 
Du Pont in their printed briefs, whether conceded or not by the minority of the 
committee, that Watson was, on the 9th day of May, 1895, governor of the State of 
Delaware, the governor in every sense of the term, exercising all the functions of the 
office, performing its every duty, exercising its every prerogative, entitled to its 
name and all its emoluments, neither cramped, nor limited, nor circumscribed by 
any condition, qualification, or limitation whatever—the governor just as much and 
for every purpose as though he had been elected by the people, instead of having 
succeeded to the office in virtue of the constitutional provision as speaker of the 
senate. 

“If, therefore, he was and is governor, then, the governorship being an office under 
the State of Delaware, he was, on May 9, 1895, and still is holding an office under the 
State, and so holding such office, he can not, in the face of the first constitutional 
provision quoted, be a senator or exercise any of the functions of a senator during 
his continuance in the office of governor.” 

[Extracts from remarks of Mr.Turpie in opposition to the resolution reported from the Committee on 
Privileges and Elections that Mr. Du Pont was entitled to a seat from the State of Delaware. Found 
in the proceedings of March 9, 1896, in the Congressional Record, vol.28, pp. 2595,2596, and 2597.] 

‘ ‘ Mr. President, the minority of the Committee on Privileges and Elections have 
taken the position, and will maintain it, that the claimant in this case, Henry A. Du 
Pont, was not chosen a member of this body, and is not entitled to a seat therein. 
The majority of the committee have the affirmative of the issue. They have the 


862 


SENATE ELECTION CASES. 


burden of proof. The record in the case contained in the journal both of the senate 
and the house of the State of Delaware shows that on the day and date when it is 
claimed the petitioner was elected a United States Senator there were 30 members 
of the legislature of Delaware present in joint convention who took part therein; 
that there were 30 votes cast for United States Senator; that the claimant received 
15 votes; that an equal number, 15 votes, were given to other gentlemen named at 
that time as candidates, and that there was no election. Such is the record. 
******* 

“It is set up as a reason for maintaining the position of the majority that Mr 
William T. Watson, a senator of the State of Delaware from the county of Kent, and 
speaker of the senate, voted and acted in joint convention; and it is alleged against 
his right to do so that some time before—about a month before that time—the 
governor of the State of Delaware had died and that the exercise of the duties of 
the office had devolved upon said William T. Watson, speaker of the senate and a 
senator from the county of Kent. It is claimed by the majority that by reason of 
the devolution of the exercise of the office, by the death of the governor, upon this 
member of the State senate and speaker of the State senate, he ceased at that time 
either to be a senator or speaker of the senate, and was not therefore entitled to act 
and vote as a member of the joint assembly. 

“The temporary provision for the exercise of executive authority is found in sec¬ 
tion 14, page 29, of the edition I have of the constitution of the State of Delaware. It 
reads as follows: 

“ ‘Upon any vacancy happening in the office of governor by his death, removal, 
resignation, or inability, the speaker of the senate shall exercise the office until a 
governor elected by the people shall be duly qualified. If there be no speaker of the 
senate, or upon a further vacancy happening in the office by his death, removal, res¬ 
ignation, or inability, the speaker of the house of representatives shall exercise the 
office until a governor elected by the people shall be duly qualified.’ 

“Now, sir, I think if any man of ordinary understanding or intelligence (and the 
constitutions of our States were made by such men and for such men) were asked 
upon whom devolved the exercise of the executive office of the State upon the death 
of the governor, he would answer upon the speaker of the senate. If he were asked 
how long the devolution lasts, he would say until a governor was elected by the peo¬ 
ple and qualified. If he were asked on the first day of this temporary period, the 
day the governor died, who is to exercise the executive office, he would answer, the 
speaker of the senate. If he were asked in the middle of such temporary interim 
who is to exercise or does exercise the office, he would answer, the speaker of the 
senate. And if at the very close, on the day before the new governor was inaugu¬ 
rated, such person were asked who was exercising the office of governor now, or who 
is entitled to exercise it, he would answer, the speaker of the senate. 

“The future expression in this phrase ‘shall exercise’ demands special attention. 
The phrase is not only imperative, but it is a future imperative, looking beyond the 
present, and especially when you use the next word in the collocation, ‘ shall exer¬ 
cise until,’ it will be seen that the whole scope of the temporary power—of the exer¬ 
cise of the power—of him who is speaker of the senate is in the future. 

“Necessarily, then, the speaker must be and continue for that future period the 
officer as he is first designated. The speaker must remain speaker; he does remain 
speaker. It is because he is speaker and remains speaker that he exercises the execu¬ 
tive authority, for if, as is contended for by the other side, at the very beginning of 
the exercise of the executive authority he ceases to be speaker, or is suspended from the 
office of speaker or the office of senator, how can the speaker be said to exercise 
the office for the future? How can it be said of him in any way he ‘ shall exercise; ’ 
the speaker must exercise eo nomine for that future period the office of governor. If 
he ceases to be speaker, if he is suspended from his functions as speaker, he would 
then be no longer the officer designated by the constitution ipsissimis verbis , he would 
no longer be the official designated in the words and letter of the constitution to 
make the temporary supply in the exercise of the executive office. 

******* 

“Now, Mr. President, ! ask again with reference to this construction. The con¬ 
stitution in its text in this section 14 does not provide that the speaker of the senate 
or the speaker of the house in either instance shall be or become governor of the 
State. Neither officer is anywhere called in this section the governor of the State. 
Let us look now at the different clauses: 

“ * Upon any vacancy happening in the office of governor by his death, removal, 
resignation, or inability, the speaker of the senate shall exercise the office until a 
governor elected by the people shall be duly qualified.’ 


HENKY A. DU PONT, OF DELAWAKE. 


863 


“ He is there called the speaker of the senate who exercises the office; he is not 
called governor. He is distinguished in the most emphatic manner from governor, 
as I shall show in the future. 

‘ ‘ The next clause refers to the speaker of the house, and in that case the officer 
designated is called speaker of the house of representatives exercising the office of 
governor. 

‘ ‘ The next clause provides that— 

“ ‘If upon a vacancy happening in the office of governor there be no other person 
who can exercise said office within the provisions of the constitution the secretary of 
state shall exercise the same until the next meeting of the general assembly.’ 

“There is a solid sentence; no comma, no semicolon, no stop at all. The secretary 
of state shall exercise the office until the meeting of the general assembly. There is 
a plain limitation on the time he shall exercise the office. It is shorter than the 
other time—until the meeting of the general assembly. There is no limitation on 
how long he shall be secretary of state. 

“ But I ask, with reference to this single sentence in three lines, where the tem¬ 
porary power is conferred on the secretary of state, how could the secretary of state 
exercise it unless he was secretary of state, and where is there the slightest intima¬ 
tion, the most intangible hint, that he does not continue to be secretary of state 
while he is in the temporary exercise of the executive authority? But he is not 
called the governor—he is called the secretary of state who exercises the executive 
authority. 

“Again, there is another contingency: 

“ ‘ If upon a vacancy happening in the office of governor there be no other person 
who can exercise said office within the provisions of the constitution, the secretary 
of state shall exercise the same until the next meeting of the general assembly, who 
shall immediately proceed to elect, by joint ballot of both houses, a person to exer¬ 
cise the office until a governor elected by the people shall be duly qualified.’ 

“Here is another person designated to exercise the office by a very high method 
in a very high manner, selected in the same manner as the members of this body, 
by a joint ballot of the general assembly. Is he governor? Is he called and desig¬ 
nated governor? No, sir; he is called a person to exercise the office. That is all he 
is called. He is not even named by inference the governor. How easy it would 
have been to have said, ‘Who shall proceed to elect, by joint ballot of both houses, 
a person to exercise the office until his successor shall be elected by the people.’ 
That is interpolation. Until a governor shall be elected by the people is the lan¬ 
guage of the constitution. Is not this person who exercises the office a governor? 
No; he is not. He is not called such. He is not in the gubernatorial succesion. He 
is not in the rank, order, and dignity of a governor. He is a person who exercises 
the office of governor by virtue of the choice of the joint assembly of the State of 
Delaware. Who, then, may be governor? The constitution is perfectly plain upon 
that subject: 

“ ‘The supreme executive powers of the State shall be vested in a governor. The 
governor shall be chosen by the citizens of the State.’ 

“ Is it possible, then, that a governor of Delaware should be any other person than 
one chosen by the citizens of the State? Certainly not; he can not be. No person 
can be governor of Delaware unless he be chosen by the citizens of the State. Can 
not the senate choose a governor? No, sir. Can the house of representatives choose 
a governor? No, sir. Can both houses choose the governor? No, sir. Both houses 
put together can only elect ‘ a person to exercise the office of governor.’ 

* ****** 

“I was very much surprised then by the statement of the learned Senator from 
Oregon with reference to what he claims to be a well-known maxim of common law, 
that the acceptance of one office, an incompatible office, vacates an office formerly 
held by the same man. I am not now questioning that law, though I might question 
some construction put upon it by the honorable Senator; I will not do that in pass¬ 
ing, but the question I ask is, when did he accept the second office of governor? 
How could he accept it? A man may accept a thing that is offered to him. He may 
even accept or decline a thing that is offered to him. A man is elected by the citizens 
of Delaware governor of the State. That person can accept, that person can decline. 
Was Mr. Watson ever elected by the citizens of the State to the office of governor? 
No. The maxim of common law has nothing to do with the question in the case. 
There was indeed no second office, and no acceptance of any second office. 

******* 

“There has been a good deal of discussion about two general propositions in the 
constitution—one, section 12 of Article II, and another, section 5 of Article III. One 
provides that no person holding an office under the State shall be a senator. No 


864 


SENATE ELECTION CASES. 


person holding any office under the State shall be a senator. I admit that the 
governor is an officer of the State, but I say that Watson never was governor and 
never could be governor. He may be sometime, but when he becomes governor it 
will be after he is chosen by the citizens of the State to that office, in the language of 
the constitution. He will never become governor before that time. He can not be 
governor before that time. No other power can choose him. No other constituency 
can elect him. The governor of Delaware is chosen by the people. Watson was 
holding no other office under the State then—none whatever. He is a senator, and 
continues to be a senator. 

“I admit that the governor is an officer, but for sufficient reasons, already given, 
it is plain that Watson never was governor, and could not be governor. The right 
devolved upon him only to exercise the office. That is the extent of his authority; 
but this right was not an office, it was simply a right; it was not an office, it was 
simply the exercise of an office; it was a right appurtenant, not to Watson, nor to 
any person; it was a right appurtenant to the speakership, to the senatorship. It 
was a right inherent in no person, appertaining not to Mr. Watson; but it was a 
right inhering in and pertaining to the speakership of the senate of Delaware, and to 
a member of the senate of Delaware, by consequence.” 


[Extracts from remarks of Mr. Pritchard in support of the resolution that Mr. Du Pont was entitled 
to a seat in the Senate as a Senator from the State of Delaware. Found in the proceedings of 
March 12,1896, in the Congressional Record, vol. 28, pp. 2729,2730.] 

“Mr. President: 

******* 

‘ ‘ Before entering upon a discussion of this case I beg leave to say that I have read 
and carefully considered the very able arguments presented by both sides, and that 
I have arrived at the conclusion that Mr. Du Pont did, on the 9th day of May, as 
aforesaid, receive a majority of the votes cast by those who legally constituted the 
joint assembly of the State of Delaware at that time. In forming this opinion I have 
been guided by what I conceive to be a proper construction of the constitution of the 
State of Delaware. I find on an examination of the constitution of that State that 
the second article of the constitution contains the following section: 

“ ‘Sec. 12. No person concerned in any Army or Navy contract, no member of 
Congress, nor any person holding any office under this State or of the United States, 
except the attorney-general, officers usually appointed by the courts of justice, 
respectively, attorneys at law, and officers of the militia holding no disqualifying 
office, shall, during his continuance in Congress or in office, be a senator or 
representative.’ 

“Here we have a positive declaration that no person, during his continuance in 
the office of governor of Delaware, shall be a senator. If this section means 
anything, it is that the person holding or exercising the office of governor of that 
State is absolutely disqualified from exercising the functions of senator. I take it 
that it will hardly be contended by those who claim that Mr. Du Pont was not 
legally elected, that had Governor Watson been elected to the position of governor 
and senator both at the same time, that in the face of this provision in the constitu¬ 
tion he would have been permitted to hold the office of governor and at the same 
time be a senator or representative. I presume no one will contend that he could 
have qualified and exercised the functions of both offices at the same time. That 
being so, we should remember the well-settled principle of law that no one can be 
permitted to indirectly do that which he can not directly do. Those who take the 
position that Governor Watson on that occasion had the authority to vote as senator 
and exercise the functions of the office of senator are asking us to decide that the 
governor by indirection could do that which he could not directly do. This is such 
a flagrant and utter disregard of all the rules of construction with which I am 
acquainted that I am fully persuaded that such an argument will not influence mem¬ 
bers of this body in deciding a grave question like the one under consideration. 

* * * * * * * 
“According to the well-settled rules of the common law, the valid acceptance of 
one office by the person already holding another and an incompatible office vacates 
the former as effectually as an actual surrender of it. In fact, it has always been 
regarded as an abdication, and therefore as a quasi resignation. I find among the 
decisions of the supreme court of my State several cases which unquestionably rec¬ 
ognize the principle of the common law which forbade the same person from holding 
incompatible offices. 6 

“I call attention to the case in the matter of J. G. Martin, decided in 62 North 


HENRY a. DU PONT, OF DELAWARE. 865 

Carolina, page 153, which expressly decides that the acceptance of one office by a 
person already holding an incompatible office vacates the former. 

****** 

This is a case which occurred during the late war, when my distinguished prede¬ 
cessor was governor of our State. The question arose as to whether or not General 
Martin, who was then holding the office of adjutant-general, could at the same time 
occupy the office of brigadier-general of the Confederate States. 

An agreed case was submitted to the supreme court of North Carolina, and the 
supreme court of that State, presided over by Chief Justice Pearson, one of the most 
eminent common-law lawyers in the country, decided that in that case the very 
moment he accepted the office of brigadier-general in the Confederate States the office 
ot adjutant-general became vacant, and that Governor Vance had the right to appoint 
a successor. 

* * * * * * * 

“Mechem’s treatise on the Law of Public Offices and Officers, section 420, in dis¬ 
cussing the effect of accepting incompatible offices, says: 

4 It is a well-settled rule of the common law that he who while occupying one 
office accepts another incompatible with the first, ipso facto absolutely vacates the 
first office and his title is thereby terminated without any other act or proceeding.’ 
(Millard v. Thatcher, 2 T. R., 81; Rex v. Patteson, 4 B. and Ad., 9; Rex v. Hughes, 
5 B. and C., 886.) 

“I understand the Senators on the otherside to take the position that it must affirma¬ 
tively appear to this body that there was an adjudication of the fact by the senate of 
the State of Delaware that the office was vacant before we can find that it was vacant. 
In this decision it is expressly decided to the contrary, that no further proceeding is 
necessary in order to vacate the first office held by the party who takes the second. 
I proceed with the opinion: 

“ ‘That the second office is inferior to the first does not affect the rule (Millard 
v. Thatcher, 2 T. R., 81), and even though the title to the second office fail, as where 
the election was void, the rule is still the same, nor can the officer then regain pos¬ 
session of his former office to which another has been appointed or elected.’ (Rex 
v. Hughes, 5 B. and C., 886.) 

“In this connection I wish to call attention to the case of Bryan v. Cattell (15 Iowa, 
550), in which the court said: 

“ ‘ Our opinion is that we are not confined to the statutory clauses or events in 
determining whether a vacancy exists. If a party accepts another office which, 
within the meaning of the law and cases, is incompatible with that which he holds, 
we have no doubt that the first one would become vacant. Thus, as is well said by 
the appellant, if the judge of a district court should accept a seat upon this bench, a 
vacancy would be created in the first office, and yet the statute does not, in terms, 
cover such a case. So if the auditor of state should take the office of treasurer, and 
many other cases that might be named.’ 

‘‘ Mr. President, I wish to read from a case which is reported in 45 Missouri, The 
State, ex rel. James W. Owens, petitioner, v. Dan M. Draper, State auditor, respond¬ 
ent, page 356. I will state before I read this opinion that they had a provision in 
their constitution in the State of Missouri that no one exercising or holding a State 
office shall at the same time hold an office in the general assembly. I am not going 
to read the opinion which relates to the construction of that section, but I am going 
to read the opinion bearing on the construction of the common-law doctrine vacating 
an office where an incompatible office is accepted. Among other things the court 
said: 

“ ‘ The case is submitted on the pleadings, and they show that while Owens was 
a judge of the circuit court he was elected a representative to the legislature, qualified 
and took his seat, and performed the duties and functions of that office. There does 
not appear to have been any resignation of the judgeship, and the question is whether 
he could legally hold the two offices and receive the pay appertaining to both at the 
same time. There has never been any doubt about the principle ’— 

“Says Judge Wagner, who rendered the opinion— 

“ ‘ so far as I am advised, that at common law, if a party accepts another office 
which is incompatible with the one he holds, the first one would become vacant.’ 

“ ‘ Suppose Owens ’— 

“That is, the petitioner— 

“‘instead of being elected to the legislature had been elected to a seat on this 
bench, and had qualified and entered on the discharge of its duties. It is perfectly 
clear to my mind that his seat on the circuit bench would have been thereby vacated. 

“ ‘Or if the auditor should be elected treasurer, or the attorney-general secretary 
of state, their acceptance of the latter offices would necessarily vacate their former 


S. Doc. 11-55 



866 


SENATE ELECTION CASES. 


ones. Besides the common-law rule, the State government is divided into separate 
and distinct branches or departments, the officers of each having separate and inde¬ 
pendent functions to perform.’ 

“Just as they had in this case. There was the executive of the State of Delaware 
with his separate, distinct, and independent functions to perform; there was the 
State senate of Delaware with its separate, distinct, and independent functions to 
perform. ... . . . 

“‘It was designed that they should be distinguished and divided by a line of 
demarkation, and that one should not trench upon the other.’ 

“This is a principle which our lawmakers have ever kept in view in the past, and 
one which we as such are compelled, under our oaths, to preserve and enforce when¬ 
ever and wherever we come in contact with it in the discharge of our official duties.” 

[Extracts from remarks of Mr. Burrows in support of the resolution that Mr. Du Pont was entitled to 
a seat in the Senate as a Senator from the State of Delaware. Found in the proceedings of April 13, 
1896, in the Congressional Record, vol. 28, pp. 3898, 3899, 3900, 3901, 3902, and 3903.] 

“Mr. President: 

******* 

“It is conceded that at a general election held in the State of Delaware in Novem¬ 
ber, 1894, there were elected a governor for the term of four years, and a full mem¬ 
bership of the Delaware legislature, consisting of 9 senators and 21 representatives; 
that in January, 1895, the governor elect, Mr. Marvil, was duly inducted into office 
and entered upon the performance of its duties; that both branches of the legislature, 
composed of members duly qualified, were legally organized, and that Senator Wat¬ 
son was elected speaker of the senate; that among the duties devolving upon such 
legislature was the election of a United States Senator for the full term of six years 
beginning March 4,1895, and ending March 4,1901; that the legislature entered upon 
the performance of this duty in conformity to law and continued therein until the 
day of final adjournment, May 9, 1895; and that on the last-named day the recorded 
vote in the joint assembly for United States Senator was 15 for Henry A. Du Pont and 
15 against him, which did not give Mr. Du Pont, a majority of the total recorded vote 
of 30, and that thereupon the legislature adjourned without day. 

“It is further conceded that on the 8th day of April, 1895, Governor Marvil died; 
and that by the constitution of the State of Delaware it is provided that— 

“ ‘Upon any vacancy happening in the office of governor by his death, removal, 
resignation, or inability, the speaker of the senate shall exercise the office until a 
governor elected by the people shall be duly qualified;’ 

“That on the following day, April 9, and in compliance with this constitutional 
mandate, the chancellor, in the presence of the senate, administered to Mr. Watson, 
the speaker of the senate (and I quote the journal entry), ‘the oaths of office as gov¬ 
ernor, ’ by which, among other things, Watson obligated himself to ‘ perform the duties 
of the office of governor of the State of Delaware with fidelity. ’ It is further admitted 
that thereupon he entered upon the discharge of the duties of such office and that he 
has ever since exercised and is now performing the duties of chief executive of the 
State of Delaware. It is further admitted that from the 9th day of April, 1895, the 
day Mr. Watson took the oath as governor and entered upon the exercise of that 
office, until the 9th day of May, 1895, the day of the final vote for United States Sen¬ 
ator in the joint assembly, Mr. Watson took no part in the business of the senate, 
either as speaker or senator, or in the proceedings of the joint assembly; and that 
the highest vote recorded in the joint assembly for United States Senator between 
the 9th of April and the 9th of May was 29, and that the declared vote of 30 for 
United States Senator in the joint assembly of May 9 was made possible only by 
the appearance of Mr. Watson, then exercising the office of governor, who on that 
day entered the senate and the joint assembly and cast his vote for United States 
Senator. 

“ It is further conceded that on the final vote Mr. Du Pont received 15 votes, and 
that of the 15 votes cast against him one of the number was the vote of Mr. Watson, 
and that without his vote Henry A. Du Pont would have had a majority over all, 
and would have been elected a Senator of the United States from the State of Dela¬ 
ware for the full term of six years. 

******* 

“ The primary and vital question, therefore, to be determined, simply stated, is 
this: Had Watson, while exercising the office of governor of the State of Delaware, 
the right to vote in the joint assembly of the legislature for United States Senator?* 
Upon this point the Committee on Privileges and Elections were unable to agree, 
and this is one and the main issue presented to the Senate for its consideration and 
final judgment. 


HENRY A. DU PONT, OF DELAWARE. 


867 


“ The majority of the committee insist that when, on the 9th day of April, Senator 
Watson took the oath and entered upon the exercise of the office of governor of the 
State of Delaware, from that moment, and so long as he continued to exercise its 
functions, he became and continues to be governor; and that as such he had no con¬ 
stitutional or legal right to discharge the functions of senator, and that his attempt 
to do so in the joint assembly of May 9 was a usurpation and his vote for United 
States Senator a nullity. 

“ On the other hand it is contended that although Watson entered upon the exer¬ 
cise of the office of governor, yet, nevertheless, he was then a senator, and continues 
to hold the office of senator and speaker, and that there was no constitutional or 
legal restraint which prevented him from discharging the functions of both offices 
at the same time, and that, in fact, his exact legal, constitutional, and official status 
was and is senator and speaker exercising the office of governor. 

* * * * * * ' * 

“ It is interesting to note in this connection that the position now taken by oppos¬ 
ing Senators—that Watson did not in fact become governor when he entered upon 
the exercise of that office—is a complete reversal and abandonment of the position 
taken by counsel in their argument before the Committee on Privileges and Elec¬ 
tions, wherein it was admitted that Mr. Watson did become and was in fact gov¬ 
ernor when he entered upon the exercise of that office. I quote from the reply of 
opposing counsel to the argument made in support of Du Pont’s claim. They say: 

“ ‘Counsel devote thirty pages of their brief to a demonstration of the fact that 
the speaker of the senate, in case of a vacancy in the office of governor, becomes 
governor of the State. The matter counsel present on this head attests their indus¬ 
try and may interest the curious, but it supports a proposition which we do not 
contest.’ 

“It was conceded then that Watson became, and was in fact, governor the moment 
he entered upon the exercise of the functions of that-office; and had that admission 
been made on the floor of the Senate it would have simplified, if not ended, this con¬ 
troversy. But opposing Senators were too astute to make this concession, knowing 
that under the constitution of the State of Delaware the office of governor and senator 
can not be held by the same person at the same time, and that as it was absolutely 
essential to the validity of Watson’s vote for United States Senator that he should 
have been a lawful member of the State senate and of the joint assembly when he 
voted, it became equally imperative to deny that he was at that time governor, or 
that he was ‘holding any office under the State’ except that of senator. 

“It becomes necessary, therefore, to inquire, as a matter of fact, whether Watson, 
while exercising the office of governor, was by that act ‘ ‘ holding an office under the 
State” within the meaning of the constitution, and whether Senators can successfully 
cut their way through this constitutional inhibition by contending that such holding 
was not an office. 

******* 

“ And this brings us to an examination of that provision of the constitution of the 
State of Delaware under and in obedience to which Watson entered upon the exercise 
of the executive office. 

“Article III, section 14, provides as follows: 

******* 

“Plain as this proposition of the constitution is, ^et it is the storm center around 
which all the legal acumen of the opposition spends its force. The contention is this, 
that the expression ‘shall exercise the office’ does not mean that the speaker of 
the senate shall become or is governor in fact, but that he is simply ‘exercising the 
office’—moving it around as though it were a thing of life, to keep its blood from stagnat¬ 
ing; to keep the office alive until such time as areal governor can be elected by the peo¬ 
ple and be duly qualified. Is this the common-sense or legal meaning of the expression 
‘exercising an office?’ Webster defines the verb‘to exercise’ as follows: ‘To put 
in practice; to carry out in action; to perform the duties of; as, to exercise an office.’ 

“ It is difficult to comprehend how one can exercise an office, perform all its func¬ 
tions, discharge all its duties, and yet not be an incumbent of such office. As was 
said in a well-adjudicated case, to which I shall have occasion to refer later, ‘ How 
can a person fill the office of governor without being governor? Given a public office 
and one who, duly empowered, discharges its duties, and we have an incumbent of 
that office.’ Mechem, in his work on Public Offices and Officers, a recognized 
authority in the prefession, says: 

“ ‘A public office is the right, authority, and duty created and conferred by law, 
by which, for a given period, an individual is vested with some portion of the sover¬ 
eign function of the government, to be exercised by him for the benefit of the public.’ 


868 


SENATE ELECTION CASES. 


“‘An office’— 

“ Says Blackstone— 

“‘is a right to exercise a private or public employment and to take the fees and 
emoluments thereunto belonging.’ 

“Judge Cooley, whom the Senator from Indiana justly eulogized as a great jurist, 
in Troop v. Langdon (40 Michigan), said: 

“ ‘An office is a special trust or charge created by competent authority. If not 
merely honorary, certain duties will be connected with it the performance of which 
will be the consideration for its being conferred upon a particular individual who, 
for the time being, will be the officer. ’ 

“Judge Danforth, in Rowland v. Major (83 New York), said: 

“ ‘ Whether we look in the direction of our language, the terms of politics, or the 
diction of common life, we find that whoever has a public charge or employment, or 
even a particular employment affecting the public, is said to hold or be in office.’ 

“ But it is needless to multiply authorities. 
******* 
“But in examining the question whether Watson, in entering upon the exercise 
of the office of governor, actually became an incumbent of the office, it is wholly 
unnecessary, in my judgment, to look beyond the plain terms of the constitution 
itself. That such became and is his official status is clearly demonstrable, I think, 
from the very language employed. Indeed any other interpretation would render 
the words used wholly inexplicable. Let us examine carefully, then, for a moment, 
that provision of the Delaware constitution under and by virtue of which Watson 
entered upon and is now exercising the office of governor. It is as follows: 

“ ‘ Upon any vacancy happening in the office of governor by his death, removal, 
resignation, or inability, the speaker of the senate shall exercise the office until a 
governor elected by the people shall be duly qualified. If there be no speaker of the 
senate, or’— 

“These words have been passed over lightly by our friends on the other side— 

“ ‘upon a further vacancy happening in the office by his death, removal, resigna¬ 
tion, or inability, the speaker of the house of representatives shall exercise the office 
until a governor elected by the people shall be duly qualified.’ 

“I want to call attention to the words ‘further vacancy happening in the office; ’ 
that is, happening in the office of governor. Here we have, in case of a vacancy 
happening in the office of governor, the line of succession definitely fixed. First the 
speaker of the senate, and after him the speaker of the house shall exercise the office. 
When does the office of governor devolve upon the speaker of the senate? In the 
language of the provision just quoted, ‘ upon any vacancy happening in the office of 
governor by his death, removal, resignation, or inability.’ And when does the exer¬ 
cise of the office devolve upon the speaker of the house? In the language of the con¬ 
stitution, when there is ‘ no speaker of the senate, or upon a further vacancy,’ not a 
continuing vacancy, ‘ happening in the office by his death, removal, resignation, or 
inability.’ 

******* 
“Here we have, it will be observed, two vacancies referred to—one caused by the 
death, removal, resignation, or inability of the governor elected by the people; and 
the other by the death, removal, resignation, or inability of the speaker of the sen¬ 
ate, who may have succeeded to the exercise of the executive office. It will be 
observed that this second vacancy is spoken of as a ‘further vacancy in the office.’ 
****** * 

‘ ‘ Mark the words ‘ further vacancy. ’ This presupposes a prior vacancy, and not 
only that, but that such prior vacancy had been filled by somebody, otherwise the 
expression ‘further vacancy’ would be meaningless and absolutely senseless. There 
could be no further vacancy until that former vacancy had been supplied. There 
might be a continuing vacancy, but not a further vacancy. If Watson, when he 
entered upon the exercise of the office of governor, did not fill the vacancy caused by 
the death of Governor Marvil, and become the governor of the State, then Watson’s 
death, resignation, or removal could not create a further vacancy in that office. It would 
continue the original vacancy. It is absurd to talk about a further vacancy in an office 
already vacant and continuing vacant. That is an impossibility. The vacancy already 
existing must first be filled before it is possible to create another or further vacancy 
in the same office. One vacancy happening in an office there can not be another 
or a further vacancy in that office until the prior vacancy has been filled. A tenant 
may vacate his landlord’s house, but there can not be another—a further—vacancy 
in that house until it has been again occupied. The expression ‘further vacancy’ is 


HENRY A. DU PONT, OP DELAWARE. 


869 


wholly inexplicable upon any other theory than that the original vacancy had been 
filled and, in this instance, by Governor Watson. This seems to me conclusive. 

******* 

“ But it is needless to grope through the uncertain and bewildering paths of legal 
speculation when we may confidently walk with steady and unfaltering step in a 
course illumined with the light of judicial learning. I propose to call attention to 
only two or three cases but of the many which seem to bear most directly upon the 
issue involved in this controversy. And first I will cite a case to which the Senator 
from Oregon [Mr. Mitchell] alluded in opening the debate, decided by the supreme 
court of the State of Maine, and reported in 7 Greenleaf, page 483. The constitution 
of the State of Maine contains the following provision (Article IV, section 14): 

“‘Whenever the office of governor shall become vacant by death, resignation, 
removal from office, or otherwise’— 

“Precisely like the constitution of Delaware— 

‘ ‘ ‘ the president of the senate shall exercise the office of governor until another 
governor shall be duly qualified.’ 

******* 

“On the 14th of January, 1830, Joshua Hall, a member of the Maine senate, was 
chosen president of that body. Soon afterwards the governor died, and Hall entered 
upon the exercise of the office of governor. Sixteen senators, including Hall, had 
been admitted and sworn. On the 26th of January the senate decided that there 
were four vacancies. Under the constitution these vacancies were to be filled by a 
joint assembly of the legislature. On the 1st of February the house of representatives 
sent a message to the senate requesting that body to meet the house in joint assembly 
for the election of senators to fill the vacancies. On the 2d of February, the senate 
being in session, a senator moved an adjournment, in order that the members of the 
senate might meet the members of the house of representatives in joint assembly. 
Hall, who was then exercising the office of governor, appeared in the senate and 
claimed the right to act as president. The vote was taken by yeas and nays. Hall 
voted in the negative. His vote being counted, the result was—yeas 8 and nays 8; 
and the motion was lost. On the 13th of February Jonathan G. Hunton, having in 
the meantime been elected governor, submitted certain questions to the supreme 
court in pursuance of a provision of the Maine constitution. One of these questions 
was the following: 

“ ‘ 2. Has the president of the senate, when the office of governor is vacant, and 
when he ought to be acting as governor, a right to preside and vote at the senate 
board?’ 

“The answer to this question was given by the chief justice, with the concurrence 
of the other justices, in the following words: 

“ ‘As to the second question, my opinion is that while the president of the senate, 
in virtue of his office as such, is clothed, with the power of exercising the office of 
governor, he has no right to preside over the senate or to vote as a member of that 
body?’ 

‘ ‘ There is a provision of the Maine constitution which, to some extent, impairs, 
but by no means destroys, the value of this decision as an authority in the case now 
under consideration. It is to the effect that while the president of the senate exer¬ 
cises the office of governor his duties as president of the senate shall be suspended 
and a president pro tempore elected. Clearly Hall had no right to preside over the 
senate, for the constitutton expressly suspended his functions as president of that 
body while exercising the office of governor, and the court was certainly right in so 
holding. But the court went further and declared Hall had no right to vote in the 
senate. 

******* 

“ I have one other case, and only one, to which I desire to call attention, which.I 
think is very important in this connection, and it is the case reported, as I have 
stated to the Senate, in II Oregon Reports, page 389, of Chadwick v. Earhart. 

“ By the constitution of the State of Oregon it is provided: 

“ ‘ In case of the removal of the governor from office, or of his death, resignation, 
or inability to discharge the duties of the office, the same shall devolve on the secre¬ 
tary of state; and in case of the removal from office, death, resignation, or inability 
both of the governor and secretary of state the president of the senate shall act as 
governor until the disability be removed or a governor elected.’ 

“This case arose in this way: The governor of the State was elected to the United 
States Senate and resigned the governorship, and thereupon, under the provision of 
the constitution just quoted, the secretary of state entered upon the performance of 
the duties of governor. The contention was whether the secretary of state was 
entitled to the salary of governor. 


870 


SENATE ELECTION CASES. 


“Chief Justice Waldo, delivering the opinion of the court—and the case is stated 
in the opinion very fully—said: . . " , 

‘‘ ‘ Two questions are submitted in this case. The first and principal one is whether, 
when, under section 8 of Article V of the constitution of Oregon, the duties of the 
office of governor devolve upon the secretary of state, he has a right to the salary of 
the office. 

******* 

‘ ‘ ‘ Counsel for the respondent claims that, in the contingency provided for in said 
section 8, the duties of the office of governor become annexed to the office of secretary 
of state and are discharged as duties incident to the latter office; in other words, that 
the duties of the office, but not the office itself, devolve upon the secretary of state. 

“ ‘This position seems to require, first, either that the office of governor should 
continue vacant during the time the secretary discharges its duties, and that such 
duties be in some way performed by the secretary of state, as such, consistently with 
a condition of vacancy; or, second, that the office be filled, and yet he who fills it 
be in nowise governor, but continue to be merely secretary of state.’ 

“ I think the case is on all fours w T ith the one we have here. 

‘“In the first place it is not shown how an office can be vacant and yet there be 
a person—not the deputy or locum tenens of another—empowered by law to discharge 
the duties of the office, and who does in fact discharge them. It is not explained 
how in such a case the duties can be separated from the office so that he who dis¬ 
charges them does not become an incumbent of the office; and, in the second place, 
how a person can fill the office of governor without being governor. 

“‘It is the function of a public officer to discharge public duties. Such duties 
constitute his office. Hence, given a public office and one who, duly empowered, 
discharges- its duties, and we have an incumbent of that office. Such is the case 
here. The secretary of state, by force of the function cast upon him, becomes gov¬ 
ernor, and consequently entitled to the salary appertaining to the office.’ 

* * * * * * * 

“It seems to me, in conclusion, in the light of reason and authority, that when 
Governor Marvil died and Watson entered upon the exercise of the office of gov¬ 
ernor, he became the executive of the State, and, by reason thereof, was prohibited 
by the constitution from discharging the duties of senator, and that his participation 
in the proceedings of the joint assembly of May 9, 1895, and vote therein for United 
States Senator were without authority of law and wholly void.” 

[Extracts from remarks of Mr. Gray in opposition to the resolution declaring that Mr. Du Pont was 
entitled to a seat in the Senate as a Senator from the State of Delaware. Found in the proceedings 
of April 15,1896, in the Congressional Record, vol. 28, pp. 3982, 3983. 3984.] 

“Mr. President, at the outset, it is proper to remark, in view of what has been 
said by all the Senators who have spoken in support of this claim, that all fair pre¬ 
possessions founded upon the merits, founded upon the situation in the State of 
Delaware, are in favor of the propositions that I now support and which have been 
supported by the minority of the Committee on Privileges and Elections in opposition 
to the claim of Mr. Du Pont. If Mr. Du Pont* shall be seated, he will be seated 
because a community in the State of Delaware has been disfranchised; he will be 
seated because one of the regularly elected members of the legislature, upon which 
the duty of electing a United States Senator devolved, has been deprived of the right 
to exercise the function of an elector, and thereby made a result possible which, if 
he had not been thus deprived, could not have been brought about. In other words, 
Mr. President, those who support the claim of Mr. Du Pont to a seat in this body 
can only hope to be successful by the accident of a vacancy in representation, 
which they argue has been brought about under the provisions of the constitution 
of Delaware. 

“No one doubts that if every person elected to the legislature of the State of Dela¬ 
ware by the people of that State was present and voting when the election for United 
States Senator was being held Mr. Du Pont would not be seated. No one doubts 
that if Kent County, in the State of Delaware, had its full representation, which it 
had elected under the constitution, in that electoral body that Mr. Du Pont would 
not have been chosen. So that, if he should be admitted here and it should be 
declared that he was elected and entitled to a seat in this body, it would be by 
reason of this casus in the situation in the State of Delaware, and not by reason of 
the will of the people as expressed when they elected the members of the legislature. 
******* 
“The parts of the constitution of the State of Delaware with which we are princi¬ 
pally concerned in this discussion are those which I send to the desk and ask the 
Secretary to read for me. They are from article 2 which treats of legislative power. 
******* 


HENRY A. DU PONT, OF DELAWARE. 871 

“It is submitted, sir, that a careful and intelligent reading of these provisions 
would not leave a doubt of the following propositions: 

“First. That the scheme of the Delaware constitution provides fora governor, to 
be elected by the people, in whom the supreme executive powers of the State shall 
be vested, who shall hold his office for a term of four years, and shall have certain 
prescribed qualifications, and not be eligible for a second time to the office. 

“Second. That no other than one so elected for the term and with the qualifica¬ 
tions prescribed by the constitution is a governor in the full constitutional sense. 

“Third. That the framers of that constitution, regarding the vicissitudes of human 
life, have provided in case of the death of a governor so elected that the duties of 
the office shall be discharged by a person holding a place of high dignity in the 
legislative department of the government, to wit, the speaker of the senate, who is 
necessarily a senator elected to represent one of the counties of the State. 

“Fourth. That the speaker, upon whom the constitution in such a contingency 
devolves the exercise of the office, exercises a temporary and ad interim function 
until a governor in the full constitutional sense can be elected by the people. That 
he does not exercise the office for a full term of four years or for the remainder of 
the term of the deceased governor, but only until an election of governor can be had. 
It may be only for a few weeks. 

“Fifth. That the constitution in devolving this temporary ad interim function 
upon the speaker of the senate has not provided that thereby such speaker shall 
vacate the place of a senator from the county to which he was elected; and the 
whole scheme of the constitution negatives any implication of the intent to create 
such a vacancy. 

“The speaker of the senate in such cases is a guardian of the gubernatorial office, 
like the civil law term in loco parentis—in loco gubernatoris—custos, like the great 
seal, being “in commission” when there is no chancellor. 

“Those are cases which seem to me analogous and most like the provision that is 
made by the Delaware constitution for the contingency of the death of a governor 
elected by the people. All of these exercises of authority are well understood and 
well known as not conferring either the rank or the power or the substance of the 
office, but are stop-gaps. They are made for a temporary emergency, which it was 
thought best should be provided for in order that the machinery of government 
might not break down. It does not require any refined exegesis to explain that to 
the plain people of the State for whom constitutions are made. They can understand 
that one officer may, upon a temporary emergency, exercise the duties of another 
office without stepping into the shoes of that officer, or being or becoming the officer 
whose duties he is performing. It is a thing which belongs to the common affairs of 
everyday life, and when the constitution makers of Delaware framed this provision 
to meet a temporary emergency they knew they were speaking to people who 
would understand the machinery that had been provided to meet the case that was 
described. 

It is inconceivable that intelligent men, engaged in the serious business of framing 
the organic law of a State, should have neglected to expressly declare and provide 
for a vacancy in the representation in the senate from a county, if one was intended 
or contemplated, when the speaker of the senate should exercise the office of gov¬ 
ernor upon the happening of a contingency for which they were then providing. 
******* 

Imagine that having done that, these framers of the organic law of Delaware, hav¬ 
ing devolved that duty upon the speaker of the senate of Delaware as a stop-gap, 
should have been confronted with the suggestion, “You have probably made a 
vacancy in the office or position or place of representative in the senate from Kent 
County, or Newcastle, or Sussex,” and they said, as the Senator from Oregon declares 
in effect they said, ‘ * Oh, well, let it go; we will leave it open for construction when the 
occasion arises. ’ ’ Or suppose they had been told that ‘ ‘ there was an American system, 
an American common law,” that was so binding, that was so well understood, so all- 
pervasive that of its own force it would work a vacancy, as was said by the Senator 
from New Hampshire yesterday. If there was such a law, as claimed by the Senator 
from New Hampshire, we must presume that those framers of the constitution of 
Delaware understood it as well as he—that John M. Clayton, George Read, James 
Rogers, Willard Hall, and Charles Polk and their colleagues knew as much about 
the American system as even the distinguished Senator from New Hampshire. Yet 
we are asked by the distinguished Senator to believe that these men were confronted 
with this American doctrine which is said created a vacancy in the representation 
from a county, depriving the constituency of one-third of its representation, they 
said, “ We will not provide for it; let it go; let one-third of the people of that county 
go unrepresented.” Vacancy in the representation of a county where there are only 


872 


SENATE ELECTION CASES. 


three to represent it is about as important a matter as a vacancy in the executive 
office, and yet we are told that those men, confronted with that situation, were will¬ 
ing that the vacancy should go unprovided for, and never wrote one line to show 
that they recognized that vacancy, much less to provide for filling it. 

“I am here to defend my State from the imputation of ever having had a consti¬ 
tutional convention composed of men so fatuous, so unfitted for the high duty they 
were called upon to perform, that when confronted with an exigency like that they 
did not have intelligence enough to deal with it. Oh, no, Mr. President; I said it 
was inconceivable. So it is. When they said that the duties of the office shall 
devolve upon the senator who happens to be speaker, it never entered their heads 
that they were vacating the office of senator from one of the counties, or else we 
know they would have provided for the filling of that vacancy. 

******* 

“We are not to make pawns of the rights of the citizens of a State upon the politi¬ 
cal chessboard. We are not to gamble away the rights of great communities and to 
stultify our own common sense in order to accomplish a predetermined purpose or 
end. Constitutions, as I said a while ago, are made for the plain people of a State. 
They were meant to be interpreted by those plain rules which govern the meaning 
of the English language, in which they are written, and it will not do here in this 
high place by argumentation, by dialectics, by refined and subtle reasoning, to reason 
away the plain, obvious, common-sense meaning of these great charters, and leave 
the people dazed and amazed at the consequences of what they themselves have 
done.” 


Wednesday, May 13, 1896. 

Mr. Turpie. 1 wish to offer an amendment on the part of the minority of the com¬ 
mittee in conformity with the precedents upon the subject. I move to insert “not” 
before “entitled.” 

Mr. Mitchell of Oregon. I ask that the amendment be printed and go over until 
to-morrow. 

The Vice-President. It will be so ordered. 

(Cong. Rec., Vol. 28, p. 5169). 

Friday, May 15, 1896. 

The amendment proposed by Mr. Turpie to the resolution reported from the Com¬ 
mittee on Privileges and Elections was read, as follows: 

‘ ‘ Resolved, That Henry A. Du Pont is not entitled to a seat in the Senate from the 
State of Delaware.” 

The question of agreeing to the amendment being submitted to the Senate, the same 
was agreed to by the following vote: 

Yeas—Messrs. Allen, Bacon, Bate, Berry, Blackburn, Butler, Caffery, Chilton, 
Cockrell, Faulkner, George, Gibson, Gorman, Gray, Harris, Hill, Jones (Ark.), 
Kyle, Lindsay, Martin, Mills, Mitchell (Wis.), Morgan, Pasco, Peffer, Roach, 
Stewart, Turpie, Vilas, Walthall, White—31. 

Nays—Messrs. Baker, Brown, Burrows, Cameron, Cannon, Carter, Chandler, 
Clark, Cullom, Davis, Dubois, Elkins, Fry, Gallinger, Hawley, McBride, Mantle, 
Mitchell (Oreg.), Perkins, Pettigrew, Platt, Proctor, Quay, Sewell, Sherman, Shoup, 
Teller, Warren, Wetmore, Wilson—30. 

The question of agreeing to the resolution as amended was then submitted to the 
Senate and the same was agreed to by the same vote as that given on agreeing to the 
amendment, as hereinbefore stated. 

(Cong. Rec., Vol. 28, pp. 5294, 5295, and 5296.) 


Tuesday, January 12,1897. 

Mr. Chandler presented a memorial from Henry A. Du Pont alleging that he is 
justly entitled to a seat in the Senate from the State of Delaware, and that under the 
circumstances the question of the validity of his election should again be investigated 
and acted upon, and that he hopes and expects to show on another consideration of 
the subject that he is entitled to such seat, and praying the Senate to reconsider the 
case and seat the petitioner. 

The memorial was received and referred to the Committee on Privileges and 
Elections. 

(Cong. Rec., vol. 29, p. 706.) 


Wednesday, January 27, 1897. 

Mr. Chandler presented the petition of certain citizens of Delaware, praying that 
the claim of Henry A. Du Pont be again investigated, and stating that he was duly 


HENRY A. DU PONT, OF DELAWARE. 873 

elected to the United States Senate by the legislature of Delaware the 9th day of 
May, 1895. On motion of Mr. Chandler, the petition was referred to the Committee 
on Privileges and Elections. 

Mr. Chandler also presented a petition from Henry A. Du Pont relative to his claim 
to a seat in the Senate as a Senator from the State of Delaware. Which petition was 
ordered to be printed as a document and referred to the Committee on Privileges 
and Elections. 

(Cong. Rec., vol. 29, pp. 1198, 1199.) 


Thursday, January 28, 1897. 

Mr. Chandler presented the petition of certain citizens of Delaware, praying that 
the petition of Henry A. Du Pont with his claim to a seat in the Senate from the 
State of Delaware be again investigated by the Senate, and that, on reconsideration 
of the case, Mr. Du Pont be seated as a Senator from said State. Which petition was 
referred to the Committee on Privileges and Elections. 

(Cong. Rec., vol. 29, pp. 1239, 1240.) 


Monday, March 1, 1897. 

Mr. Hoar, from the Committee on Privileges and Elections, submitted the report 
of the committee in the case of Henry A. Du Pont, claiming a seat in the Senate from 
the State of Delaware. Which report was ordered printed in the Record and also to 
be printed as a document. 

(Cong. Rec., vol. 29, p. 2524.) 

REPORT OF THE COMMITTEE. 

[The committee consisted of the same members mentioned in the statement pre¬ 
ceding the report in the case of Henry A. Du Pont, supra.] 

Henry A. Du Pont. 

March 1 , 1897.—Ordered to be printed. 

Mr. Hoar, from the Committee on Privileges and Elections, submitted the follow¬ 
ing report: 

The Committee on Privileges and Elections, to whom was referred the petition of 
Henry A. Du Pont, of the State of Delaware, claiming a seat in the Senate from that 
State in virtue of an election by the legislature thereof on May 9, 1895, have consid¬ 
ered the same and report: 

Mr. Du Pont presented to the Senate, December 4, 1895, a petition for admission 
as Senator from the State of Delaware for what then remained unexpired of the term 
beginning March 4, 1895. 

It appeared that at a joint convention of the two houses of the legislature of the 
State of Delaware, duly held on the 9th day of May, 1895, 15 votes were cast for Mr. 
Du Pont and 15 votes for other candidates. One of the votes cast for other candi¬ 
dates was the vote of the acting governor of the State of Delaware, who had suc¬ 
ceeded to the executive chair on the death of the governor. He was a senator and 
the speaker of the Delaware senate at the time of the alleged election, the term of 
office for which he had been elected for senator and speaker having not expired. If 
he were entitled to vote, Mr. Du Pont was not lawfully elected. If he were not so 
entitled, Mr. Du Pont had a majority of 1 vote. The question of his right to vote 
depended upon the question whether his accession to the executive chair by virtue of 
the constitution of the State should deprive him of his title to vote as a senator. 

That question was the only one raised in the discussion of Mr. Du Pont’s title to a 
seat in the Senate. The Committee on Privileges and Elections reported in his favor 
and there was a full discussion of the question. 

On the 15th day of May, 1896, the Senate passed the following resolution by a 
majority of 1 vote: 

“ Resolved, That Henry A. Du Pont is not entitled to a seat in the Senate from the 
State of Delaware for the full term commencing March 4, 1895.” 

Mr. Du Pont now prays to have this question reopened. The grounds of his appli¬ 
cation, as stated in his petition and by his eminent counsel in an argument addressed 
to the committee, are: 

First. That there was a mistake in the pairs as announced when the vote on this 
resolution was taken, so that a Senator who was in favor of Mr. Du Pont was paired 
against him. On investigation we find that no such mistake occurred, and that 
every Senator who desired to vote who was in favor of Mr. Du Pont either voted for 
him or was paired in his favor. 


874 


SENATE ELECTION CASES. 


Second. That the petitioner expects to satisfy the Senate that it was wrong in its 
construction of the constitution of Delaware when it held that the vote of the acting 
governor for another candidate than Mr. Du Pont was lawful. 

New Senators have entered the chamber since the resolution just cited was adopted. 
Nothing else has changed. The case then stated and acted upon is the case now 
stated. The simple question is: Whether the Senate, notwithstanding its decision of 
May 15, 1896, will now admit Mr. Du Pont to a seat? 

The majority of your committee now, as then, are of the opinion that this decision 
of the Senate was wrong; but the Senate is made by the Constitution the judge of the 
elections, qualifications, and returns of its members, and its judgment is just as bind¬ 
ing in law, in all constitutional vigor and potency when it is rendered by one ma jority 
as when it is unanimous. 

It is clear that the word ‘‘judge” in the Constitution was used advisedly. The 
Senate in the case provided for is to declare a result depending upon the application 
of law to existing facts, and is not to be affected in its action by the desire of its 
members or by their opinions as to public policies or public interest. Its action 
determines great constitutional rights—the title of an individual citizen to a high 
office and the title of a sovereign State to be represented in the Senate by the per¬ 
son of its choice. We can not doubt that this declaration of the Senate is a judgment 
in the sense in which that word is used by judicial tribunals. We can conceive of no 
case which can arise in human affairs where it is more important that a judgment of 
any court should be respected and should stand unaffected by caprice or anything 
likely to excite passion or to tempt virtue. When the Senate decided the question 
it was sitting as a high constitutional court. In its action we think it ought to 
respect the principles, in giving effect to its own decision, which have been estab¬ 
lished in other judicial tribunals in like cases and which the experience of mankind 
has found safe and salutary. 

We do not doubt that the Senate, like other courts, may review its own judgments 
where new evidence has been discovered, or where by reason of fraud or accident it 
appears that the judgment ought to be reviewed. The remedy which in other courts 
may be given by writs of review or error or bills of review may doubtless be given 
here by a simple vote reversing the first adjudication. We have no doubt that a 
legal doctrine involved in a former judgment of the Senate may be overruled in later 
cases. But there is no case known in other judicial tribunals in which a final judg¬ 
ment in the same case can be rescinded or reversed merely because the composition 
of the court has changed or because the members of the court who originally decided 
it have changed their mind as to the law or fact which is involved. 

It seems to us very important to the preservation of constitutional government, 
very important to the dignity and authority of the Senate, very important to the 
peace of the country, that we should abide by this principle. There are few greater 
temptations which affect the conduct of men than the temptation to seize upon 
political power without regard to the obligation of law. To act upon the doctrine 
upon which this petition rests would expose the Senate to the temptation to reverse 
its own judgments and to vacate or to award seats in this Chamber according as the 
changing majorities should make possible. If such practice should be admitted it 
would, in our opinion, go far to weaken the respect due to this body and the respect 
due to constitutional authority. 

GEO. F. HOAR. 

WM. E. CHANDLER. 

J. C. PRITCHARD. 

J. C. BURROWS. 

GEO. GRAY. 

DAVID TURPIE. 

JAMES L. PUGH. 

JOHN M. PALMER. 


(Cong. Rec., vol. 29, pp. 2524,2525.) 


JOHN E. ADDICKS V. RICHARD R. KENNEY, OF DELAWARE. 875 


[Fifty-fourth Congress—second session, and Fifty-fifth Congress—first session.] 

JOHN E. ADDICKS v. RICHARD R. KENNEY, of Delaware. 

The term of Anthony Higgins as Senator from the State of Delaware expired March 3, 1895. After 
the decision by the Senate that Henry A. Du Pont was not elected to the office of United States Sen¬ 
ator by the legislature of the State of Delaware, and on the 21st day of January, 1897, a paper was 
presented in the Senate certifying to the election of John Edward Addicks as Senator from the State 
of Delaware on the 20th day of January, 1897, for the term beginning March 4,1895. These creden¬ 
tials purported to be signed by the speaker of the senate of the State of Delaware, the speaker of the 
house of representatives of the State of Delaware, and the clerk of the senate and the clerk of the 
house of representatives of the State of Delaware. February 5, 1897, the credentials of Richard R. 
Kenney were presented in the Senate duly signed by the governor of the State of Delaware and cer¬ 
tifying to the election of said Richard R. Kenney on the 19th day of January, 1897, as a Senator from 
said State for the term ending March 3, 1901. These credentials being in due form, Mr. Kenney was 
admitted to a seat in the Senate. 

March 19,1897, the petition of John Edward Addicks was presented in the Senate, claiming that he, 
said John Edward Addicks, was elected to the Senate of the United States on the 20th day of January, 
1897, by the legislature of the State of Delaware, and alleging certain facts in relation to the election 
of Richard R. Kenney from which the petitioner asserted that Mr. Kenney was not legally elected to 
that office. This petition was referred to the Committee on Privileges and Elections, but no report 
concerning the matter was made by the committee nor was any further action taken by the Senate in 
reference to such petition. 

The history of the case here given consists of a statement of the proceedings in the Senate in said 
case as published in the Congressional Record, and the remarks of Mr. Hoar on the occasion of the 
presenting of the credentials of Mr. Kenney. 

PROCEEDINGS IN THE SENATE. 

Thursday, January 21, 1897. 

Mr. Chandler presented the following paper, which was referred to the Committee 
on Privileges and Elections: 

“Delaware, ss : 

“Be it known that the legislature of the State of Delaware did, on the 20th day of 
January, in the year of our Lord 1897, at an election in due manner held according 
to the form of the act of the general assembly of said State in such case made and 
provided, choose John Edward Addicks to be a Senator from said State in the Senate 
of the United States for the constitutional term from the 3d day of March, in the 
year of our Lord 1895. 

“Given under our hands in obedience to the said act of the general assembly the 
day and year aforesaid. 

“ROBERT J. HANBY, 

‘ ‘ Speaker of the Senate. 

“THOMAS C. MOORE, 

“ Speaker of the House of Representatives. 

“GEO. W. ROGERS, 

‘ ‘ Clerk of the Senate. 

“CHAS. R. HASTINGS, 

“ Clerk of the House of Representatives. 

(Cong. Rec., vol. 29, p. 1004.) 


Friday, February 5, 1897. 

Mr. Gray presented the credentials of Richard W. Kenney as a Senator from the 
State of Delaware. The credentials were read, as follows: 

“State of Delaware, Executive Department. 

u To the President of the Senate of the United States: 

“This is to certify that on the 19th day of January, in the year of our Lord 1897, 
Richard R. Kenney was duly elected by the legislature of Delaware a Senator to rep¬ 
resent said State in the Senate of the United States, to fill a vacancy existing in the 
representation of said State for the term ending the 3d day of March, A. D. 1901. 


876 


SENATE ELECTION CASES. 


“ Witness his excellency, our governor, Ebe IV. Tunnell, and our seal hereunto 
affixed, at Dover, this 21st day of January, in the year of our Lord 1897, and of the 
independence of the United States of America the one hundred and twenty-first. 

“EBE W. TUNNELL. 

“ By the governor: 

“Wm. H. Bryce, Secretary of State.” 

Mr. Kenney being present, and the oath prescribed by law having been adminis¬ 
tered to him, he took his seat in the Senate. 

(Cong. Rec., vol. 29, pp. 1559, 1560.) 

[Remarks of Mr. Hoar on the occasion of the presenting of the credentials of Mr. Kenney as a Senator 

from the State of Delaware. Found in the proceedings of February 5, 1897, in the Congressional 

Record, vol. 29, pp. 1559,1560.] 

“Mr. President, I desire to make a brief statement also before the Senate admits 
this gentleman to a seat. 

“At the last session of the Senate the Senate determined by a majority of 1, I 
think (I was not present when the final vote took place, being absent in consequence 
of illness), that Mr. Henry A. Du Pont was not entitled to a seat in the Senate. The 
result necessarily involved in that determination was the decision of the Senate that 
a vacancy existed from the State of Delaware. 

“I suppose it is unnecessary to say that I dissented from the opinion on which 
that vote of the Senate was based. The question was whether the acting governor, 
formerly speaker of the senate and formerly a member of the senate, was disqualified 
from voting under the Delaware constitution by his accepting and entering upon the 
then vacant office of governor. I thought then and think now that it was just such 
an act of usurped authority when he undertook to vote as it would have been if 
President Johnson or President Arthur had come back to the Senate here and under¬ 
taken to preside as Vice-President and to give a casting vote on some important 
question. I never have changed that opinion and I have no great doubt about it; 
but the Senate adjudged otherwise. 

“The Senate is made by the Constitution the judge of the election and qualification 
of its members, and its judgment is just as binding in law, in all constitutional vigor 
and potency, when it is rendered by 1 majority as when it is unanimous. I remem¬ 
ber very well what I think was one of the most admirable public utterances of the late 
James G. Blaine. The year after his own party had nearly lost the State government 
by an attempted fraud and usurpation on the part of their antagonists there was a 
contested election, that party then being in power. It was very close, and Mr. 
Blaine declared that. 1 majority for Plaisted was as good as a thousand in entitling 
Mr. Blaine’s opponent, Governor Plaisted, to the seat. 

“Now, what was the effect of that judgment of the Senate? It seems to me that it 
was the same as the judgment of a court would have been fixing the rights of parties. 
It maybe undoubtedly reviewed for newly discovered evidence; it may undoubtedly 
be vacated for an error in the record, as if we should discover that one or two Sena¬ 
tors who were recorded as voting one way in fact voted another way. I suppose it 
could be vacated if it should turn out, to use an illustration that some one else made 
in my hearing recently, that that governor, when it was supposed he voted in the 
Delaware legislature, was falsely impersonated by some one else and was not there at 
all. But, although parliamentary proceedings differ in form from those of courts, the 
great rule on which the safety of all human property and transactions depend, 
established in courts of justice, ought in substance to govern us here. 

“There has been an application on the part of Mr. Du Pont—whom I respect per¬ 
sonally, whom I eagerly desire should have a seat in this body, and who I think 
ought to have had one on the merits of his case—to reopen that case. No newly 
discovered evidence is suggested; no fraud or mistake is suggested. The reopening 
of the case would merely be a reconsideration of a question of constitutional law 
which this great constitutional court has decided once. That is all he asks and that 
is all he would obtain if his prayer for a reopening of the case were granted. 

“That petition was referred to the Committee on Privileges and Elections, and 
after a very able and interesting argument in favor of Mr. Du Pont by Mr. Garland, 
late Attorney-General—and it is not necessary to say that any argument that gentle¬ 
man makes will be able and interesting—the committee unanimously decided this 
morning that there had been an adjudication by the Senate and that nothing further 
remained to be done. It was unanimously decided with the exception of one member, 
who was not prepared to determine what was his duty at the particular time. 

“ Mr. President, I propose to act upon that doctrine. I think it is very important 
for constitutional government, very important to the dignity and authority of the 
Senate, very important for the peace of the country that we should stand by these 
principles. 


JOHN E. ADDICKS V. BICHARD R. KENNEY, OF DELAWARE. 877 

“ It is a very unpleasant thing to me that Mr. Du Pont is not to take his seat, and 
that some one else is to take it. But it would be a very bad thing for every citizen of 
this country unless the Senate of the United States could act and could be known to 
act upon great questions where right and righteousness are involved in pursuance of 
a law other and higher than its own desire. 

“If it be true that Mr. Du Pont was not legally elected, or if it be true that that 
question has been settled by a judgment of the Senate, it follows that there is a 
vacancy, and that there was a vacancy at the time of the alleged election of Mr. 
Kenney, in the office of Senator from the State of Delaware; and there being a 
vacancy under the Constitution and statute of the United States, the credential in 
due form, signed by the executive of that State, gives the gentleman who now applies 
for the seat a prima facie title to the seat, subject, as has been suggested by my 
honorable friend from New Hampshire, to reexamination on the merits hereafter, if 
that reexamination shall be desired. I therefore assent to the request of the Senator 
from Delaware that the oath be administered.” 

Friday, March 19, 1897. 

Mr. Burrows. I present the petition of John Edward Addicks, a citizen of the 
State of Delaware, setting forth that on the 20th day of January, 1897, by a majority 
of the duly elected and qualified members of the senate and house of representatives 
of the State of Delaware, he was duly elected a United States Senator to fill the 
vacancy in the United States Senate occasioned by the expiration of the term of 
Anthony Higgins, and that he was denied the usual and formal certificate of election 
to which he was entitled. He further sets forth that the Hon. R. R. Kenney, now 
holding a seat in the United States Senate, was not duly and legally elected to fill 
the vacancy and is not legally entitled to his seat; that a majority of the citizens who 
met and assumed to act as the legislature of said State and went through the form of 
electing Mr. Kenney were never elected, but usurped the office of members of the 
legislature. The petitioner further contests the right of said Kenney to occupy a 
seat in the United States Senate, and affirms that Mr. Kenney was not legally elected 
thereto. 

The petition further states that the three counties in the State of Delaware, which 
comprise its entire territory, elected at the last election seven members of the legis¬ 
lature from each of the counties, and that a canvass of the ballots since the election 
shows that in two counties—the county of Kent and the county of Sussex—the Repub¬ 
lican candidates, seven from each county, were elected, or fourteen members of the 
lower house, and that, in substance, the members elected, with those holding over, 
constituted a majority of the legislature in both houses. The petitioner prays that 
the matter may be investigated and his right to a seat in the Senate passed upon by 
the Senate. I move that the petitition be printed and that it be referred to the 
Committee on Privileges and Elections. 

Mr. Gray. * * * I wish to state that as a matter of fact there has been no 
canvass, in the legal or official sense of that term, of the voters of those two counties 
since the election. 

The memorial was ordered to be printed as a document and to be referred to the 
Committee on Privileges and Elections. 

(Cong. Rec., vol. 30, p. 66.) 

Thursday, February £1, 1901. 

Mr. Chandler submitted the following resolution, which was referred to the Com¬ 
mittee on Privileges and Elections: 

“ Resolved, That there be paid out of the contingent fund of the Senate to Richard 
R. Kenney, a Senator from the State of Delaware, the sum of $500 in reimbursement 
of expenses necessarily incurred by him in defense of his title to a seat.” 

(Cong. Rec., vol. 34, p. 2726.) 

Friday, February 22, 1901. 

Mr. Pettus, from the Committee on Privileges and Elections, reported the follow¬ 
ing resolution, which was referred to the Committee to Audit and Control the Con¬ 
tingent Expenses of the Senate: 

“Resolved , That there should be paid out of the contingent fund of the Senate to 
Senator Richard R. Kenney, of Delaware, the sum of $488, the amount expended by 
him in defending his right to a seat in the Senate.” 

(Cong. Rec., vol. 34, p. 2802.) 

Thursday, February 28, 1901. 

Mr. Jones, of Nevada, from the Committee to Audit and Control the Contingent 
Expenses of the Senate, to whom was referred the resolution reported by Mr. Pettus 
from the Committee on Privileges and Elections on the 22d instant, reported it with¬ 
out amendment, and it was considered by unanimous consent and agreed to. 

(Cong. Rec., vol. 34, p. 3189.) 


878 


SENATE ELECTION CASES 


[Fifty-fifth Congress, second and third sessions, and Fifty-sixth Congress, first 

session. ] 

MARCUS A. HANNA, 


Senator from Ohio. 

Marcus A. Hanna was chosen by the legislature of the State of Ohio a Senator from that State for 
the remaining portion of the term ending March 3,1899, in place of John Sherman, who resigned to 
accept the office of Secretary of State of the United States. Mr. Hanna appeared January 17,1898, and 
took his seat in the Senate without objection. Subsequently, and on the 28th day of May, 1898, a cer¬ 
tified copy of the report of the committee appointed by the senate of the State of Ohio to investigate 
charges of bribery in the election of Mr. Hanna to the Senate of the United States was filed and 
referred to the Committee on Privileges and Elections. On the 28th day of February, 1899, the com¬ 
mittee submitted a report asking to be discharged from further consideration of the report of the 
State senate of Ohio. A minority of the committee submitted a minority report recommending 
further inquiry and investigation/ One member of the committee did not join in either the majority 
or the minority report, but submitted a separate report for himself. No further action was taken by 
the Senate in the case, but on the 5th day of June, 1900, the matter was referred to by Mr. Pettigrew 
in debate, and by request of Mr. Foraker the entire report of the Committee on Privileges and Elec¬ 
tions in the case was inserted in the Record. 

The history of the case here given consists of a statement of the proceedings in the Senate in the 
case, as published in the Congressional Record, the report of the Committee on Privileges and Elec¬ 
tions, the report of the minority of the committee, and the separate report of Mr. Allen, a member of 
the committee, and also a reference to the proceedings in the Senate during which the entire report 
of the committee was ordered to be printed in the Record. 

PROCEEDINGS IN THE SENATE. 

Monday, January 17, 1898. 

Mr. Foraker presented the credentials of Marcus Alonzo Hanna, chosen by the 
legislature of the State of Ohio a Senator from that State for the remaining portion 
of the term ending March 3, 1899. The credentials were read and ordered to be 
filed. The oath prescribed by law having been administered to Mr. Hanna, he took 
his seat in the Senate. 

(Cong. Rec., vol. 31, pp. 665,666.) 


Saturday, May 28, 1898. 

The Vice-President. The Chair lays before the Senate for reference a communi¬ 
cation from the general assembly of Ohio, which will be read. 

The Secretary read as follows: 

“General Assembly of Ohio, 

‘ ‘ Office Clerk of the Senate, 

“ Columbus, May 26, 1898. 

“My Dear Sir: I have this day forwarded to you by the United States Express 
Company a certified copy of the report of the committee appointed by the senate of 
Ohio, pursuant to senate resolution No. 21, to investigate the charges of bribery in 
the election of Hon. Marcus A. Hanna to the Senate of the United States, together 
with the testimony taken therein, which was ordered to be sent to you by the Ohio 
senate. Kindly acknowledge receipt of the same. 

“I have the honor to be, very truly yours, 

“ D. O. Castle, 

‘ ‘ Chief Clerk of the Senate. 

“ Hon. Garret A. Hobart, 

“ United States Senate, Washington, T). CM 


The communication, with the accompanying papers, was referred to the Committee 
on Privileges and Elections. 

(Cong. Rec., vol, 31, p. 5317.) 

Tuesday, February 2S, 1899. 

Mr. Chandler, from the Committee on Privileges and Elections, to whom was 
referred a certified copy of the report of the committee appointed by the senate of the 


MARCUS A. HANNA, SENATOR FROM OHIO. 


879 


State of Ohio, pursuant to senate resolution No. 21, to investigate the charges of 
bribery in the election of Hon. Marcus A. Hanna to the Senate of the United States, 
submitted a written report, which was ordered to be printed and to lie on the table. 

Mr. Turley submitted a minority report, which was also ordered to be printed and 
to he on the table. 

Mr. Allen submitted a report for himself in relation to which the same order was 
made. 

(Cong. Rec., vol. 32, p. 2558.) 


REPORT OF THE COMMITTEE. 

[The committee consisted of Messrs. Chandler (chairman), Hoar, Burrows, 
Pritchard, Spooner, Faulkner, Caffery, Allen, and Pettus.j 

Election of Hon. M. A. Hanna. 

February 28, 1899.—Ordered to lie on the table and be printed. 

Mr. Chandler, from the Committee on Privileges and Elections, submitted the 
following report on the charges of bribery in the election of Hon. M. A. Hanna to 
the Senate of the United States: 

The Committee on Privileges and Elections, to which was referred the certified 
copy of the report of the committee appointed by the senate of Ohio to investigate 
the charges of bribery in the election of Hon. Marcus A. Hanna to the Senate of the 
United States, having considered the same, report back to the Senate said certified 
copy, and further report as follows: 

This certified copy of the report of the senate of Ohio, being a typewritten docu¬ 
ment, was presented to the United States Senate by the Vice-President on May 28, 
1898, having been received by him through the mails, and was referred to the Com¬ 
mittee on Privileges and Elections on motion of the Senator from Colorado (Mr. 
Teller), but no order for printing was made. It has, however, been put in type for 
the use of the committee. The contents of the certified copy are the “Report of the 
committee appointed by the senate of Ohio,” including the testimony, of which 500 
copies were printed by the Ohio senate, and the report further ordered to be printed 
in the appendix of the State senate journal. The closing paragraph of the report, 
signed by the chairman and three members, recommends its adoption by the State 
senate and that a copy thereof, with the testimony, “be transmitted to the President 
of the Senate of the United States, of which Senator Hanna is a member, for such 
action as it may deem advisable.” The clerk of the State senate, in certifying on 
May 26, 1898, that the papers transmitted were a true and correct copy of the report 
of the committee, adds as to the report the words “and adopted by the Ohio senate.” 

From the above statement it will be seen that no direct remonstrance, memorial, 
or protest setting out that Mr. Hanna was not elected Senator or that he ought to be 
expelled, coming from parties asserting readiness to prosecute their charges, has been 
presented to the Senate. Nor has the reception on May 28, 1898, of the certified 
copy of the State senate report been followed up by any appearance before this com¬ 
mittee of any prosecuting parties or by the submission to the committee of any addi- 
- tional papers from any source. Nevertheless, the committee have given an exami¬ 
nation to the report of the Ohio State senate committee, the points of the same, 
concisely stated, being as follows: 

The specific charge is what the committee call “four main facts” stated in lan¬ 
guage as follows: 

“The evidence taken by your committee, in its judgment, proves four main facts: 

“1. That on or about January 9,1898, an attempt was made to bribe John C. Otis, 
a member of the house of representatives of the present general assembly of the 
State of Ohio, to vote for Marcus A. Hanna for United States Senator. 

“2. That Henry H. Boyce was the principal offender in the commission of that 
crime. 

“3. That Maj. E. G. Rathbone and Maj. Charles F. Dick were agents of Marcu. 
A. Hanna, and procured, aided, and abetted Henry H. Boyce to commit that crimes 

“4. That H. H. Hollenbeck aided said Henry H. Boyce in committing that crime.” 

Although there is no evidence that Mr. Hanna had knowledge of the alleged 
attempt to bribe Mr. Otis, the State senate committee argue that the proven rela¬ 
tions of the above parties to Mr. Hanna are persuasive to the conclusion that he 
knew and sanctioned what they did. 

The only other point made by the State senate committee is that Hollenbeck and 
Boyce evaded the jurisdiction of the committee and that Messrs. Rathbone and 


880 


SENATE ELECTION CASES. 


Dick, and Mr. Hanna himself, omitted to appear in response to subpoenas and invi¬ 
tations sent them by registered mail. 

The above report of the State senate committee appears to have been adopted by 
the Ohio State senate on April 23, 1898, by a vote of 19 yeas to 17 nays: Sen¬ 
ator James R. Garfield made a minority report dated April 23, 1898, a copy of 
which is herewith submitted, in which he reviews the evidence and declares his 
belief that the conclusions of the majority report are “contrary to the acts pre¬ 
sented.” He further argues that the Otis case was the outcome of “a scheme care¬ 
fully prepared and executed by the opponents of Mr. Hanna to secure his defeat by 
making this charge of bribery during the last days of the Senatorial contest. ’ ’ 

The report of the State senate committee does not show' the proceedings of the 
Ohio legislature when Mr. Hanna was elected Senator, but the record of the ballot- 
ings is as follows: 

The votes of Tuesday, January 11, 1898, were, in the house: Mr. Hanna 56, all 
others 53; in the senate: Mr. Hanna 17, all others 19; being 73 for Mr. Hanna and 
72 for all others. 

On Wednesday, January 12, the joint balloting resulted as follows: Mr. Hanna 73, 
all others 71; and Mr. Hanna was declared elected. 

Mr. John C. Otis did not vote for Mr. Hanna, but on both days voted for Robert 
E. McKisson, and his vote is included in the 72 and 71 opposition votes above given. 

There is no proof submitted either (1) that Mr. Hanna was elected Senator 
through bribery, or (2) that he had any agents engaged in carrying on his canvass 
for the Senate who were directly or impliedly authorized by him to resort to corrupt 
methods or any form of wrongdoing, or (3) that he had any personal knowledge of 
the facts of the Otis case. It may be said that there is no evidence w'hich fairly tends 
to prove either of the foregoing three propositions. 

Upon the view of the case thus briefly stated, the Committee on Privileges and 
Elections has reached the conclusion that the United States Senate is not called upon 
to take any action in the premises. The utmost fact which the committee of the 
State senate claim to have proved is that an attempt was made to bribe Mr. Otis, 
which failed. Without further facts than this the validity of Mr. Hanna’s election 
w'ill stand unimpeached, and the Senate is not called upon to search for further 
facts in the absence of any specification of such facts or of any distinct suggestion 
w'here they may be found, the whole demand of the State senate report that Mr. 
Hanna be expelled from the United States Senate being rested upon the Otis case. 

Whether, even if this unsuccessful attempt at bribery in the case of Representative 
Otis were fastened upon the representatives of Senator Hanna by undoubted proof, 
the Senate w'ould be called upon to take any action is not by any means clear. Cer¬ 
tainly without strong evidence that Senator Hanna himself had knowledge of the 
transaction the Senate would hardly be justified in doing more than expose the facts 
for condemnation by public opinion; and the exposure of such facts as the State 
senate say w r ere proved has already been accomplished by the State senate report, 
while there is no direct evidence, and substantially no presumptive evidence, that 
Senator Hanna had any knowledge of what was going on. 

Moreover, it seems clear to this committee that it would not be justified in recom¬ 
mending any action whatever to be taken by the Senate without further testimony 
to be taken by the committee. The question whether additional evidence should be 
taken has been the only difficult question w'hich the committee has considered. It 
is clear that Mr. Otis never had any intention of yielding to bribery. He encouraged 
Mr. Boyce, by the advice of others, only in order to entrap him. Then he carefully 
withdrew and substituted his attorney, Mr. Campbell, to continue the negotiations. 
Mr. Campbell labored to induce Mr. Boyce to offer money, and finally, as he says, 
obtained |1,750 from him as part payment on $3,500 to be paid for Mr. Otis’s vote 
for Mr. Hanna, leaving $6,500 to be paid if Mr. Hanna was elected. At this point 
public exposure through Mr. Otis, Mr. Campbell, and their associates took place. 
Mr. Boyce disappeared and the incident was closed. 

That Mr. Boyce, operating at Cincinnati, where Mr. Otis lived, had relations with 
Mr. Hanna’s representatives at Columbus, the State capital, the State senate com¬ 
mittee undertook to prove by the evidence of various detectives, professional and 
amateur, who listened at telephone wires and shadowed Mr. Boyce, Mr. Hollenbeck, 
and others. The effort of the committee was carefully and skillfully made. It was 
not wholly devoid of results. It raises suspicions that Mr. Hanna’s representatives 
at Columbus knew what Mr. Boyce was doing. But this whole line of inquiry would 
require verification by testimony to be taken by the Committee on Privileges and 
Elections before that committee would be willing to found conclusions thereon. 

In reaching the opinion that the Senate is not called upon to take further testi¬ 
mony the committee are not unmindful of the fact that many witnesses refused to 
testify when they appeared before the State senate committee, and that Mr. Hanna 


MARCUS A. HANNA, SENATOR FROM OHIO. 


881 


and his representatives had subpoenas sent to them by mail and did not respond. 
Mr. Garfield in his minority report states the alleged reasons why Mr. Hanna did 
not appear, namely, that a fair and impartial hearing was impossible because of the 
known hostility of the chairman of the committee, and because the committee at its 
first meeting decided to refuse to allow any person whose name was connected with 
the investigation “to appear in person and be represented by-counsel.” 

The reasons why the Committee on Privileges and Elections do not decide to ask 
for power to take testimony may be restated as follows: 

I. 

The belief, heretofore suggested, that even if the unsuccessful attempt at bribery 
into which Messrs. Otis and Campbell led Mr. Boyce were to be proved as alleged 
by the State senate committee, the United States Senate would not feel called upon 
to do more than has already been done by the State senate, namely, expose the trans¬ 
action to public view. To go over again the whole ground covered by the State sen¬ 
ate merely for the purpose of such additional exposure would be tedious, expensive, 
and unnecessary. 

II. 

The fact that no case of bribery beyond the Otis case and no further specific 
corrupt acts are alleged or suggested. The beginning and the end of the State senate 
report is the Otis case. 

III. 

The fact that there has been no demand for the prosecution of the inquiry coming 
from the State of Ohio, except by the transmission by the chief clerk of the Ohio 
State senate of the senate report, as hereinbefore stated, to the United States Senate 
for “such action as it may deem advisable.” This was received by the Senate on 
May 28, 1898, and referred to this committee, and from that time to this, as herein¬ 
before stated, no further interest has apparently been taken in the subject by any 
resident of the State of Ohio. 

The committee do not doubt that if facts appeared from the report of the committee 
of the State senate requiring the United States Senate, out of a proper regard for its 
own reputation, to take further testimony concerning Mr. Hanna’s election it would 
be the duty of the Senate to proceed without waiting for further prosecution of the 
case coming from residents of the State of Ohio. But, taking the case as it stands 
and noting the absence of such prosecution, the conclusion of the committee is not 
to ask the Senate for authority and direction to take further testimony, but to ask to 
be discharged from the further consideration of the report of the State senate of Ohio. 

VIEWS OF THE MINORITY. 

Mr. Turley, from the minority of the Committee on Privileges and Elections, sub¬ 
mitted the following views in the matter of the report of the committee appointed 
by the senate of the State of Ohio to investigate the charges of bribery in the election 
of Hon. M. A. Hanna to the Senate of the United States. 

We can not concur in the report of the majority of the Committee on Privileges 
and Elections in the matter of the report of the committee appointed by the senate 
of the State of Ohio to investigate the charges of bribery in the election of Hon. M. 
A. Hanna to the Senate of the United States. 

The charge is that early in January, 1898, an attempt was made by H. H. Boyce 
and others to bribe John C. Otis, a member of the house of representatives of the 
general assembly of the State of Ohio, to vote for Marcus A. Hanna for the Senate 
of the United States. 

Among other things, the majority of the committee say: 

“Moreover, it seems clear to this committee that it would not be justified in recom¬ 
mending any action to be taken by the Senate without further testimony to be taken 
by the committee. The question whether additional evidence should be taken has 
been the only difficult question which the committee has considered. It is clear 
that Mr. Otis never had any intention of yielding to bribery. He encouraged Mr. 
Boyce by the advice of others only in order to entrap him. Then he carefully with¬ 
drew and substituted his attorney, Mr. Campbell, to continue the negotiations. Mr. 
Campbell labored to induce Mr. Boyce to offer money, and finally, as he says, 
obtained $1,750 from him as part payment on $3,500 to be paid for Mr. Otis’s vote for 
Mr. Hanna, leaving $6,500 to be paid if Mr. Hanna was elected. At this point pub¬ 
lic exposure, through Mr. Otis, Mr. Campbell, and their associates, took place. Mr. 
Boyce disappeared, and the incident was closed. 

“That Mr. Boyce, operating in Cincinnati, where Mr. Otis livoL had relations with 


S. Doc. 11-56 



882 


SENATE ELECTION CASES. 


Mr. Hanna’s representatives at Columbus, the State capital, the State senate com¬ 
mittee undertook to prove by the evidence of various detectives, professional and 
amateur, who listened at telephone wires and shadowed Mr. Boyce, Mr. Hollenbeck, 
and others. The effort of the committee was carefully and skillfully made. It was 
not wholly devoid of results; it raises pregnant suspicions that Mr. Hanna’s repre¬ 
sentatives at Columbus knew what Mr. Boyce was doing. But this whole line of 
inquiry would require verification by testimony to be taken by the Committee on 
Privileges and Elections before that committee w r ould be willing to found conclusions 
thereon.” 

The attempt on the part of Boyce to buy Otis’s vote for Mr. Hanna is clearly 
proven by Campbell, who, from his testimony, seems to have been a lawyer of large 
practice. One thousand seven hundred and fifty dollars was paid in cash by Boyce 
to Campbell as attorney for Otis. Boyce agreed to pay $1,750 more when Otis reached 
Columbus and a balance of $6,500 if Mr. Hanna was elected. 

We will now refer to portions of the evidence before the committee of the State 
senate of Ohio bearing upon the relations existing between Mr. Boyce while at Cin¬ 
cinnati and Mr. Hanna’s representatives at Columbus. It is shown that Mr. Hanna 
and Majors Dick and Rathbone (Dick and Rathbone being managers for Mr. Hanna) 
were at the Neil House, in Columbus, Ohio, where Mr. Hanna had his headquarters, 
for a part of three weeks preceding January 12, 1898. The private telephone used in 
Mr. Hanna’s headquarters was No. 1092. 

Otis testifies that on Friday, January 7, 1898, about 11 o’clock, he was called up 
over the telephone from the Great Southern Hotel at Columbus by a General Boyce. 
He had never heard of Boyce before. Boyce stated that he “had come on from New 
York to see Otis on important business and had reached Columbus on Wednesday 
about two hours after Otis had left.” The result of the conversation was that Boyce 
and Otis agreed to meet at the Gibson House that evening. Later in the day Boyce 
telegraphed Otis that he would reach Cincinnati at 5.30 o’clock. Otis says he met 
Boyce at the Gibson House between 5.30 and 6 o’clock that evening and had a con¬ 
versation with him in which the senatorial question was discussed and they agreed 
to meet again the next evening. Myers, a clerk at the Gibson House, testified that 
at about 6.40 p. m. on the 7th of January a call came over the telephone from Colum¬ 
bus for General Boyce, but he could not be found at the time. It was repeated a 
little later on, at which time General Boyce was standing in the lobby. He was at 
once called to the telephone in the hotel office. Myers said he heard Boyce say, 
“Hello, Major Dick!” and speak of Hanna being sore. 

This conversation, as far as he heard it, Myers says he repeated to the manager of 
the hotel, who told him if Boyce wished to use the telephone again to arrange for 
him to use the one in the manager’s private office, which was numbered 548. It 
seems the two telephones were so connected that a person listening at the telephone 
in the hotel office could overhear everything which passed through the telephone in 
the manager’s private office. Now, the books of the telephone company in Columbus 
show that on January 7 there was but one call from telephone 1092 at the Hanna 
headquarters to telephone 548, Gibson House, and that was at about 8 p. m. Myers 
testifies further that Boyce went to the theater after supper on the night of the 7th, 
returning to the hotel somewhere at about 10.45 p. m. In the meantime another 
call had come for him from Columbus. He was so notified and went to the telephone 
in the manager’s private office and called up telephone 1092 at Columbus. 

Myers said he listened at the telephone in the hotel office and heard all that was 
said, taking notes of same at the time. He says Boyce addressed the person in 
Columbus as “Major,” told him he had seen “O,” had arranged matters, and it 
would take $20,000 down; that the Major replied: “They did not know about that; 
they would see ‘H,’” and that then there was an intermission of about five minutes, 
when the person at Columbus said they would give $10,000 down and ^10,000 when 
it was over; and that the conversation continued concerning Mr. “O,” and what they 
would pay him for his vote. The books of the telephone company in Cincinnati 
show that on the 7th of January, 1898, at about 11.20 p. m., Boyce, from telephone 
548, called up Columbus and talked with Rathbone eleven minutes, and the tele¬ 
phone books in Columbus show that telephone 548 in Cincinnati called telephone 
1092 in Columbus at about 11.15 p. m. on that day. 

Myers and two other employees of the Gibson House testify that at about 12 o’clock 
the same night another call came from telephone 1092 at Columbus for Boyce. Myers 
claims to have overheard this conversation also, and to have taken notes of it, copies 
of which were produced in full, and which are as follows: 

“Columbus. Mr. Boyce in? 

“Cincinnati. Yes. 

“Columbus. Call him to long-distance telephone. 


MARCUS A. HANNA, SENATOR FROM OHIO. 


883 


“Cincinnati. Who wants him? 

“Columbus. Columbus does. 

“Cincinnati. All right; wait five minutes. 

“Boyce. Hello, Columbus! This you, Major? 

“Major. (Major) Yes. 

“Boyce. What do you want? 

“ Major. Have been talking to H. and he says: ‘ Suppose he won’t put signature 
on paper—what will we do?’ 

“ Boyce. I will fix that all right; but if I was in his place I would not sign paper, 
as it is a foolish play. His price is $20,000. (Dick is speaking to Hanna.) 

“ Major. If lie wants protection, exchange notes and accommodation papers with 
him, as that will protect both of you. He don’t want him alarmed. 

“ Boyce. How will you arrange matters? 

“Major. I will speak to Hanna. I will send Hollenbeck down in the morning. 
He will be there about 10; may be a little late. We are afraid that if Mr. O. falls 
out the rest will go to pieces. We will make it in a package and give it to Hollen¬ 
beck, so he can transfer it and not know what he is doing. 

“ Boyce. What shall I pledge him to do? 

“ Major. To vote for Hanna and the Hanna wing of the Republican party. I want 
you to make him feel as though he were among friends. Give him to understand 
that he will be treated as one of us, and we will not overlook him when the fight is 
over. The terms are $10,000 and the rest as soon as it is over. You want to meet 
Hollenbeck to-morrow and stay with him until he is ready to come back to Columbus, 
and then, if possible, come up with him. 

“ Boyce. I will do as you say. I think everything is all right and in good shape. 
I am a very good judge of human nature, and I don’t think that Mr. O. will betray 
us. If he should, I would have him killed. 

“ Major (laughingly). Dead men tell no tales. Myers is up to some tricks again 
to-night. 

“Boyce. What is he doing? 

“ Major. I only heard it mentioned. 

“Boyce. Major, you will hear good news from Washington Sunday morning over 
the long-distance phone. 

‘ ‘ Major. What is it about, and who is it from? 

“Boyce. I can’t tell you, but it is away up and is of the best. 

“ Major. As soon as your meeting is over to-morrow call me up and let me know 
what you did. 

“Boyce. Justing, of Fairfax County, is all right. 

“Major. I think Governor Bushnell is tired of the whole thing, and if he gets a 
chance he will give it up and drop out. Good night.” 

Hollenbeck, according to the evidence, did arrive at the Gibson House next morn¬ 
ing, January 8, and had one or more interviews with Boyce. Miss Jacobs, a ste¬ 
nographer at the Gibson House, testifies that on January 8, at 1.30 p. m., she took 
notes of a conversation between Hollenbeck and some one at telephone 1092, Colum¬ 
bus. Her notes were produced and show the conversation to have been as follows: 

“ Saturday, January 8, 1898 — 1.30 p. m. 

“Hello. Will you tell 1092, at Columbus, that Hollenbeck is now at the Gibson 
House—that is, Mr. Hollenbeck? I will wait for him. 

“Q. Hello. Is this long distance?—A. Yes. 

“Q. Did you hear anything from Columbus?—A. The line in Columbus is busy 
now, but I will call you as soon as I can get them. 

“ Q. 1 will wait right here. 

A little later. 

“Mr. Hollenbeck. Hello! This is Hollenbeck. 

“ Columbus. Is this Hollenbeck? 

“Mr. H. Yes. 

“Columbus. Say, hold that line and just wait a minute there. [After a few min¬ 
utes’ pause.] Hello! 

“Mr. H. I did not succeed in finding Mr. Schmidlapp, but found another man 
who got the matter. 

“ Columbus. Who got the other matter? 

“Mr. H. The other man. 

“ Columbus. Who was the other man? 

“ Mr. H. He is all right. 

“ Columbus. But who is he? 


884 


SENATE ELECTION CASES. 


“ Mr. H. One of your friends—all right. He was up at Columbus the other day 
with you. 

‘ ‘ Columbus. To whom did you deliver the message? 

“Mr. H. General Boyce. 

“Columbus. What became of the letter to Schmidlapp? 

“ Mr. H. The Schmidlapp letter was left with Mr. Schmidlapp. 

“ Columbus. Did he see the letter? 

“ Mr. H. He was not in, but it was left with his private man. 

“ Columbus. What was done with the draft? 

“ Mr. H. That was returned. 

“ Columbus. What was done with the letter? 

“Mr. H. The letter was left. You can reach Schmidlapp by telephone to St. 
Louis if you want him. 

‘ ‘ Columbus. I do not care for that. 

“Mr. H. The General feels very well over the outlook. 

“ Columbus. Did you find the other man? 

“ Mr. H. The other man has not come in yet. 

“ Columbus. There is a telegram here dated at Springfield. 

“ Mr. H. I have not telegraphed. Have not said a word to anybody. 

“ Columbus. That is strange. 

“Mr. H. Shall I show the letter introducing me? 

“ Columbus. Do as you think best. Here is the telegram I got. It reads: ‘ Spring- 
field Depot, January 8, 1898. Party left train at Springfield.’ That is the telegram 
received. 

“Mr. H. I did not send any telegram to anybody. That is very funny. I was 
very careful not to be seen; went down dark alleys and byways. 

“ Columbus. How about the General? 

“Mr. H. I am not supposed to know anything about him, but he is very well and 
very happy over it. 

“ Columbus. You have to be watchful. 

“Mr. H. I will be that. Good-bye. 

“(And telephone rang off.)” 

The books of the telephone company in Columbus show that on January 8, at 1.30 
p. m., telephone 1092 called telephone 548 in Cincinnati. 

Otis says he had his second interview with Boyce at the Gibson House Saturday 
evening, January 8, 1898, at about 3 p. m. 

Miss Jacobs says that about 6.45 p. m. on January 8 she took down a conversation 
between Boyce and Rathbone. Her notes are produced and show the conversation 
to have been as follows: 

“ Saturday, January 8, 1898—about 6.45. 

“ Major Rathbone. Hello! Is this Gibson House? 

“General Boyce. Yes; we are still alive. My party has just gone. He has been 
here ever since 3. We have gone over the ground pretty thoroughly. A signed let¬ 
ter or telegram, which I am authorized to give the President out of deference to 
him—do you understand? He is all right; is very much interested. He is thor¬ 
oughly convinced that if he did not come in that others would do it without him, 
but he says that neither Lane nor Droste will vote for Hanna. I want to tell you 
that. He can not do much with Droste. He says that Droste is jealous of him 
because he thought he got the inside of the speakership, but both of these men have 
asked him to help them about the committee. He thinks he could get Lane if he 
had somebody to go to Lane. He wanted to know if we counted the majority with¬ 
out that? 

“ Columbus. We do. 

“Boyce. But of course we want them both. 

“ Columbus. Yes. 

“Boyce. Can you make any suggestion at all? Well, I think the line for him to 
work on is that one to help out the committee, and he will do as they want him to 
do. I think that is the line to work on. We shall go up together on the train 
to-morrow, leaving here about 4 o’clock. Don’t think that there will be anybody 
else on the train so far as we are interested. He thinks Droste is up there, and 
Lane, too. 

“Columbus. I don’t know. 

“Boyce. He is eager now to do something more—authorizing the telegram. He is 
coming again to-night, and we will spend most of to-morrow together—dine together. 

‘ ‘ Columbus. How about telegrams? 

“Boyce. If he signed the statement and said he was going to vote for Hanna, that 
will answer. Don’t you think it will? 


MARCUS A. HANNA, SENATOR FROM OHIO. 885 


‘Columbus. Yes; if he signs it. 

“Boyce. Well, I will tell you. One of the inducements you know as thoroughly— 
but that was not enough. He wants to be protected, etc. I told him he should be. 
I did not write any papers, because I did not want him to have any paper. He has 
not told anybody up to this time that he has been talking with me. He is afraid of 
Mason. Mason is going to give him some choice committee position, and, of course, 
he is shy of Mason. I suppose there is no hope for him. 

“Columbus. I do not know. 

“Boyce. When Otis comes up there and goes to Mason and says, ‘The thing is all 
up, I am going with the others,’ won’t that help? Of course, if Mason knew that 
they were all going to break away, he would not be left in the lurch, would he? 

“Columbus. No; I do not think so. 

“Boyce. The whole atmosphere is in our favor. 

“Columbus. About this telegram; will you let me know when it is sent, just as soon 
as you can? 

“Boyce. I want to get your judgment. Both of us want to be judicious. We do 
not want to expose him to fight. You will see that he is taken care of in Washington. 

“Columbus. I can arrange at that end so there is no leak there. About that dis¬ 
patch; if you send it, send it through the Postal and let me know as quickly as it 
goes. 

“Boyce. He is coming back here about 9 o’clock or so, and we will have another 
talk about these matters. Droste is a silver man and would have voted for Gray, but 
Otis would not have voted for Gray anyhow. In his mind was Kurtz and Bushnell 
when I opened the campaign. 

‘ ‘ Columbus. As soon as you come I would like to see you and have a conference 
with you. Supposing we meet at 10 o’clock, unless I notify you to the contrary, at 
263 East Broad street at 10 o’clock. 

“Boyce. Will be at the Great Southern. We expect to leave here on the Penn¬ 
sylvania line about 4 o’clock, but we are going to settle definitely to-night or 
to-morrow. Good-bye. 

“ (And the telephone rang off.)” 

The telephone books in Cincinnati show that at 6.52 p. m. on January 8 Boyce, 
from telephone 548, talked to Rathbone about thirteen minutes; and the telephone 
books at Columbus show that at 6.50 p. m. on January 8 telephone 548, at Cincinnati, 
called telephone 1092 in Columbus. According to Campbell and Otis, Boyce’s firsi 
interview with Campbell was on Saturday night, January 8. Other interviews fol 
lowed on Sunday, and it was in these interviews that the terms for the purchase of 
Otis’s vote were finally agreed upon between Boyce and Campbell. Campbell says 
in these conversations Boyce wanted to know if they could not arrange for the votes 
of Droste and Lane, and other members of the legislature, mentioning the sums that 
he could get for these votes, and stating that there would be a large amount to divide 
between them. 

Now, Miss Jacobs testifies further that on January 9, at about 11.35 o’clock a. m., 
she took down another conversation between Boyce and Columbus, which was in the 
following words: 

“Sunday Morning, January 9, 1898—about 11.35.. 

“Boyce. Hello! Is this the Major? 

“Major. Yes; wait a minute. [After a moment’s pause.] Hello! 

“Boyce. How are you, Major? 

“Major. I recognize you. 

“Boyce. Well, I wanted to ask if you have any direct connection with either 
Droste or Lane? These men were all elected here on a pledge, and our little friend, 
who is interested, would like to have the others come, and he brought to me a law¬ 
yer, who wants to make a deal. They would not do it unless they received a con¬ 
sideration for it. He says that under no circumstances does he think Droste will vote 
for the Senator unless for these reasons. Do you think I can put any emphasis upon 
Lane coming our way? 

“Major. I do not know; we are catching them as fast as we can bring them. 

“Boyce. Do you put much faith in Jones? 

“Major. He can not get away. 

“Boyce. I said in the first place we did not need either Droste or Lane, only for 
their strength. Now, you know there is going to be a conference to-night with the 
other fellows. Isn’t it wise for us to keep away and not come? 

“Major. I don’t know, General. 

“Boyce. You know when a man is safe he is safe; that is all there is about it. 

“Major. They telegraphed them all to come down. 


886 


SENATE ELECTION CASES. 


“Boyce. If anything should occur between now and 2 o’clock, will you ring me up, 
please? 

“Major. Yes; I will. 

‘ 1 Boyce. The young lawyer is coming to see me again. You understand these men 
were elected on a pledge saying that they would not vote for Senator Hanna? 

“Major. I know that. 

“Boyce. It was a peculiar thing to get this man off Jones or Manuel. This man 
had pledged himself. This man had pledged himself to become elected. He has 
been afraid all the time, and is now afraid, of the Enquirer. 

“Major. I do not think they will have much to say. During the heat of the dis¬ 
cussion the whole thing would be wiped out. I think we are in good shape. We 
have got the men with us. 

“Boyce. We want a clear majority for our side without any question. There is no 
doubt but what we will have 17 of the senators. 

“Major. There ought to be 18. I don’t see why Burke should not come in. 

‘‘ Boyce.' My man would like to have Mason for Hanna very much. You see Mason 
votes before he does. He couldn’t raise a question then about it. If I will not come 
up there I will notify you. I shall see in an hour or two whether Lane or Droste 
are both here or one of them. No one seemed to know last night and I couldn’t find 
out. I shall know in an hour or two. The latest information is that Droste would 
nominate Gerrard. 

‘ ‘ Major. I am to have a conference a little later and then we will see what is to be 
done. I *will let you know. Good-bye.” 

(Telephone rings off.) 

The telephone books in Cincinnati show that on January 9, at 11.18 a. m., Boyce, 
from telephone 548, talked to Rathbone in Columbus for ten minutes, at a cost of 
$2.50, while the books in Columbus show that on said day telephone 1092 at 11.15 
a. m. called telephone 548 at Cincinnati, at a cost of $2.50. 

There was other evidence before the State senate committee tending to show the 
intimate relations between Boyce and Mr. Hanna’s managers, but it would carry this 
report to unnecessary length to quote it. 

We think that the evidence to which we have already referred, standing as it does 
uncontradicted and unexplained, shows that certain of Mr. Hanna’s managers at 
Columbus not only knew the purposes which Boyce had in view in Cincinnati, but 
also that they aided, abetted, and advised him in carrying out these purposes, and 
that this state of affairs existed while Mr. Hanna was present at his headquarters. 

This view is strengthened by two facts disclosed in the report of the State senate 
committee: 

First. That many of the witnesses, whose testimony apparently would have thrown 
much light upon the subject under inquiry, denied the jurisdiction of the committee 
and refused to testify under the advice of counsel, who stated that they represented 
the interests of Majors Rathbone and Dick and Senator Hanna; and, 

Second. That Mr. Hanna and his representatives had subpoenas sent them by mail, 
which seem to have reached them, calling upon them to appear before the State 
senate committee, to which they made no response. 

The report of the majority says they “do not doubt that if facts appeared from 
the report of the committee of the State senate requiring the United States Senate, 
out of a proper regard for its own reputation, to take further testimony concerning 
Mr. Hanna’s election, it would be the duty of the Senate to proceed without waiting 
for further prosecution of the case coming from residents of the State of Ohio.” 

We think such facts do appear from the report of the committee of the State 
senate, and that this body should direct further inquiry and investigation to be 
made. 

THOS. B. TURLEY. 

E. W. PETTUS. 

D. CAFFERY. 

Mr. Allen, from the minority of the Committee on Privileges and Elections, sub¬ 
mitted the following views on the charges of bribery in the election of Hon. M. A. 
Hanna to the Senate of the United States: 

In view of the fact that this Congress will expire within the next three days and 
that the term of service of Mr. Hanna will expire with it, it is apparent that there 
is not time within which to consider the case, and it will perforce of circumstances 
fall with the close of the session. My term of office expires with this Congress, and 


MARCUS A. HANNA, SENATOR FROM OHIO. 887 

I do not, under such circumstances, deem it wise to express an opinion as to what a 
future Congress should do, to which Mr. Hanna has been elected. 

Respectfully submitted. 

WILLIAM Y. ALLEN. 

[The certified copy of the report of the committee appointed by the senate of Ohio 
to investigate the charges of bribery in the election of Hon. Marcus A. Hanna to the 
Senate of the United States, and the minority report of that committee are omitted. 
These documents may be found in Senate Report No. 1859, Fifty-fifth Congress, third 
session, and also in the Congressional Record, vol. 33, pp. 6585-6635.] 

Tuesday, June 5, 1900. 

Mr. Pettigrew, during the progress of debate on antitrust legislation, read from 
the foregoing report of the minority of the committee and commented thereon. After 
further discussion the entire report of the committee was ordered to be printed in 
the Record. 

(Cong. Rec., vol. 33, pp. 6585 to 6635.) 


888 


SENATE ELECTION CASES. 


* 


[Fifty-sixth Congress, first session.] 

NATHAN B. SCOTT, 

Senator from West Virginia. 


Nathan B. Scott was elected a Senator from the State of West Virginia for the term beginning 
March 4, 1899, in place of Charles J. Faulkner, whose term expired March 3, 1899. Before Mr. Scott 
appeared to claim his seat certain memorials were presented to the Senate remonstrating against the 
seating of Mr. Scott. At the beginning of the first session of the Fifty-sixth Congress Mr. Scott was 
duly seated as a Senator from the State of West Virginia, without objection at the time. Afterwards 
a resolution was introduced in the Senate declaring that Mr. Scott was not entitled to a seat in the 
Senate; which was referred to the Committee on Privileges and Elections, with the memorials 
referred to. 

March 20, 1900, the committee submitted a report with an accompanying resolution that Mr. Scott 
was entitled to a seat in the Senate as a Senator from the State of West Virginia. A minority of the 
committee submitted a report which was adverse to the right of Mr. Scott to the seat held by him in 
the Senate. The objections to the title of Mr. Scott to a seat in the Senate, the conclusions of the 
committee thereon, and the views of the minority of the committee in relation thereto are fully 
stated in the report of the committee, with the views of the minority, submitted and printed in the 
case and hereinafter appearing.' 

The matter was debated in the Senate April 25 and 26, 1900, and the resolution reported by the 
Committee on Privileges and Elections was adopted April 27,1900, by a vote of 52 yeas to 3 nays. 

The history of the case here given consists of a statement of the proceedings in the Senate relating 
thereto, as published in the Congressional Record, the report of the Committee on Privileges and 
Elections, the dissenting report of the minority of the committee, a statement of the days on which 
these reports were debated in the Senate with a reference to the record of the same, extracts from 
the remarks of Mr. McComas and Mr. Pettus in such debate, and the vote on the resolution submitted 
by the committee. 


PROCEEDINGS IN THE SENATE. 

Thursday, February 23, 1899. 

Mr. Faulkner presented the memorial of John T. McGraw, of Grafton, W. Va., 
remonstrating against the seating of Hon Nathan B. Scott as a Senator of the United 
States from the State of West Virginia for the term beginning March 4, 1899. The 
memorial was ordered to be printed as a document. 

(Cong. Rec., vol. 82, pp. 2205, 2206.) 


Thursday, March 2, 1899. 

Mr. Faulkner presented a memorial signed by 45 members of the legislature of 
West Virginia, remonstrating against the seating of Hon. Nathan B. Scott, a Senator 
of the United States from that State for the term of six years beginning March 4, 
1899. 

The memorial was ordered to be printed as a document. 

(Cong. Rec., vol. 32, pp. 2691, 2692.) 


Wednesday, December 6, 1899. 

The President pro tempore presented the depositions of R, W. Morrow and sundry 
other citizens of West Virginia, witnesses in behalf of John T. McGraw against the 
title of Hon. Nathan B. Scott to a seat in the United States Senate; which were 
referred to the Committee on Privileges and Elections. 

(Cong. Rec., vol. 33, p. 79.) 

Mr. Jones of Arkansas submitted the following resolution; which was referred to 
the Committee on Privileges and Elections: 

“Revolt ed, That Nathan B. Scott, now occupying a seat as a Senator from West Vir¬ 
ginia, is not entitled to a seat in the Senate.” 

The memorial of John T. McGraw, which was presented to the Senate during the 
last Congress by Senator Faulkner, was ordered taken from the files and referred to 
the Committee on Privileges and Elections in connection with the foregoing resolu¬ 
tion. 

(Cong. Rec., vol. 33, p. 98.) 


NATHAN B. SCOTT, SENATOR FROM WEST VIRGINIA. 889 


Thursday, December 7, 1899. 

Mr. Chandler, from the Committee on Privileges and Elections, reported the follow¬ 
ing resolution; which was referred to the Committee to Audit and Control the Con¬ 
tingent Expenses of the Senate: 

“Resolved, That the Committee on Privileges and Elections of the Senate, or any 
subcommittee thereof, be authorized and directed to investigate the right and title 
of Nathan B. Scott to a seat as Senator from the State of West Virginia, and said 
committee is authorized to sit during the sessions of the Senate, to employ a stenog¬ 
rapher, to send for persons and papers, and to administer oaths, and that the expenses 
of the inquiry shall be paid from the contingent fund of the Senate upon vouchers to 
be approved by the chairman of the committee.” 

(Cong. Rec., vol. 33, p. 132.) 


Tuesday, December 12, 1899. 

Mr. Gallinger, from the Committee to Audit and Control the Contingent Expenses 
of the Senate, to whom was referred the resolution reported by Mr. Chandler from 
the Committee on Privileges and Elections, on the 7th instant, in reference to the 
investigation of the title of Nathan B. Scott to a seat in the Senate as a Senator from 
the State of West Virginia, reported it without amendment; and it was considered 
by unanimous consent and agreed to. 

(Cong. Rec., vol. 33, p. 231.) 


Tuesday, March 20, 1900. 

Mr. McComas, from the Committee on Privileges and Elections, submitted a report 
in relation to certain memorials protesting against the seating of Mr. Scott as a Sena¬ 
tor from the State of West Virginia. The report was accompanied by the following 
resolution: 

“Resolved, That Nathan B. Scott has been duly elected a Senator from the State of 
West Virginia for the term of six years commencing on the 4th day of March, 1899, 
and that he is entitled to a seat in the Senate as such Senator.” 

Mr. Pettus submitted the views of a minority of the committee; which were ordered 
printed with the report of the committee. 

(Cong. Rec., vol. 33, p. 3072.) 

REPORT OF THE COMMITTEE. 

[The committee consisted of Messrs. Chandler (chairman), Hoar, Burrows, Pritch¬ 
ard, McComas, Caffery, Pettus, Turley, and Harris.] 

Protest Against the Seating of Hon. Nathan B. Scott. 

March 20, 1900.—Ordered to be printed. 

Mr. McComas, from the Committee on Privileges and Elections, submitted the 
following report and views of the minority (to accompany Senate Res. No. 213): 

The Committee on Privileges and Elections, to whom was referred a certain 
memorial of John T. McGraw, a citizen of West Virginia, and a certain memorial of 
John J. Cornwell and others, members of the senate and house of delegates of West 
Virginia, each memorial protesting against the seating of Hon. Nathan B. Scott as a 
Senator from that State, have considered the same and respectfully report: 

The certificate of the governor of West Virginia, in due form, of the election of Mr. 
Scott by the legislature constituted a prima facie title in Mr. Scott to a seat in the 
Senate, and thereupon he was admitted to take the oath of office. The remonstrants 
insist that he is not entitled to a seat in this body. 

The matter was submitted to the committee upon the memorials, the journals of 
each house, an agreed statement of facts, and certain oral arguments and admissions 
of counsel at the hearing. The remonstrants offered to prove certain declarations of 
several State officials, of members of the general assembly, and of attorneys in argu¬ 
ment before legislative committees; also certain acts of persons, detailed in certain 
alleged depositions, submitted in printed form, but the committee was of opinion 
that there was no proffer of sufficient evidence of fraud or intimidation affecting the 
election to warrant such investigation by the committee. 

On January 24, 1899, the two houses of the legislature of West Virginia each bal¬ 
loted, but failed to concur in the appointment of a Senator, and on the next day 
both houses met in a joint assembly, and upon the first balk t the whole number of 
votes cast was 95, of which Mr. Scott received 48, Mr. McGraw 46, and Mr. Goff 1. 


890 


SENATE ELECTION CASES. 


Thereupon the presiding officer of the joint assembly declared that Nathan B. Scott 
having received a majority of the votes cast by both branches of the legislature vot¬ 
ing in joint assembly he is duly elected a Senator in the Congress of the United 
States. The joint assembly thereupon adjourned. 

A quorum of the joint assembly and a quorum of each house was present and voted. 
The proceedings were regular and resulted in the election of Mr. Scott, unless certain 
admitted facts constitute a valid objection to his election. 

The memorial of John J. Cornwell and other members states briefly, and the 
memorial of John T. McGraw states fully, the objections of the remonstrants to Mr. 
Scott’s title to a seat in this body. 

The objections stated by Mr. McGraw are five in number. 

The first objection assigned is that Mr. Scott did not receive a majority of the votes 
constituting such joint assembly; that there were in said body 97 votes, a majority of 
which is 49, and that Mr. Scott received but 48 votes. 

The journal of the joint assembly on January 25, 1899 (House Journal, p. 189), 
shows 25 senators and 70 members of the house of delegates present and voting; 
shows 95 to be the whole number of votes cast, and of these Mr. Scott received 48 
votes—a majority of all votes cast. • 

Under the apportionment the senate contained one more member and the house 
one more member. The journal of the joint assembly discloses nothing concerning 
these two. It does not appear therefrom whether they were present. It does not 
show that they were entitled to vote or that they in any manner claimed or waived 
the right to vote. Prima facie, from the journal of the joint assembly, either they 
were not entitled and w r ere not present, or if present did not claim or waive their 
right to vote. Therefore this journal shows that Mr. Scott received a valid majority 
of the joint assembly, consisting of 95 members. 

As was said in Lapham and Miller (Senate Election Cases, p. 602): 

“The ground alleged is that there was not a majority of the whole legislature 
actually voting for the members chosen. In our opinion that is not necessary. 
There was a quorum of each house present in the joint assembly; there was a majority 
of that quorum actually voting for the members chosen. In our opinion that was a 
valid election.” 

See also Clark and Maginnis v. Sanders and Power (Senate Election Cases, 637); 
Davidson v. Call (Senate Election Cases, 711). 

The journals of the senate and house explain the nonparticipation of the senator 
from the fourth'senatorial district and the member of the house of delegates from 
Taylor County. 

On January 20, 1899 (Senate Journal, p. 66), a resolution was introduced in the 
senate declaring that Kidd, the sitting member, was not elected and that Morris was 
duly elected, directing that Kidd vacate his seat and Morris be sworn in. 

On January 23, 1899 (Senate Journal, 91-94), this resolution was considered and a 
substitute was adopted reciting the contest between Kidd and Morris, the reference to 
and pendency of the contest before the committee on privileges and elections, and 
the opinion of the senate that Morris was entitled to the seat pending the contest, 
wherefore the senate resolved that Kidd was not entitled and that Morris was entitled 
to a seat in the senate from the fourth senatorial district pending the contest, and 
that Morris be sworn in. Morris took the oath and was seated. 

On January 25,1899 (Senate Journal, p. 1081), the senate adopted a resolution that 
the contested-election case of Morris v. Kidd be the special order for consideration 
and determination on its merits on February 7, 1899, with leave to either party to 
take testimony, “and that pending the determination of such contest neither Morris 
nor Kidd shall be entitled to vote or sit as a member of this body.” 

The journal of the house shows the following proceedings in the contest over the 
seat o£ delegate from Taylor County: 

The secretary of state, under chapter 3, section 70, of the Code of West Virginia, 
returned to the house when it assembled the list of delegates entitled to participate 
in its organization, and among them Brohard, of Taylor County, who was sworn in. 
^ House Journal, p. 5.) 

On January 12, 1899, the house referred to the committee on privileges and elec¬ 
tions the question of the right of Brohard to be sworn in, with instructions to report 
the person prima facie entitled to be sworn in as member from Taylor County. On 
January 16, 1899, the house adopted a resolution reported from said committee that, 
pending determination of the title to the seat, neither Brohard nor Dent (the con- 
testee) “be permitted to participate in the proceedings of this house.” 

On January 24,1899, the majority of said committee reported a resolution that Dent 
was elected a delegate from Taylor County, and that he at once be qualified and take 
his seat. 

On January 25, 1899, the house unanimously resolved that the consideration of the 


NATHAN B. SCOTT, SENATOR FROM WEST VIRGINIA. 891 


majority and minority reports concerning the contest in relation to the delegate from 
Taylor County be postponed until February 7, with leave to either party to take 
testimony. 

The judgment of the senate was a finality in respect of Morris and Kidd. The 
judgment of the house was a finality in respect of Dent aud Brohard. Each of them 
was adjudicated not qualified to participate or vote in the house wherein he claimed 
a seat, pending the final decision of the body which by the constitution of West 
Virginia (art. 6, sec. 24) is made “the judge of the election returns and qualifica¬ 
tions of its own members.” 

Therefore, on January 25, 1899, only 95 members had the right to participate and 
vote in the two houses; only 95 members had the right to participate and vote in 
the joint assembly. Of these Mr. Scott received 48 votes—a majority. Therefore 
the first objection, that there were 97 votes in the joint assembly, and that a major¬ 
ity was 49, is unfounded. 

The second objection assigned is, that “of 48 votes received by Mr. Scott were the 
votes of Senators Getzendanner and Pearson, cast and received against a protest 
spread upon the journal of the joint assembly, and showing that these senators had, 
under article 6, section 13, of the State constitution, forfeited their seats as senators 
in the legislature by the acceptance of lucrative offices under the Federal Govern¬ 
ment, and likewise their right to vote in said joint convention.” 

These protests show that Senators Getzendanner and Pearson accepted commis¬ 
sions in the Second Regiment of West Virginia Volunteers and discharged the duties 
and received the pay of captain and lieutenant, respectively, while in the service of 
the United States during the Spanish war. These facts are admitted, and it is fur¬ 
ther admitted that these senators were “hold-over senators,” who, between the 
session of the last legislature and the assembling of the new legislature in 1899, had 
accepted, had served, and had resigned their commissions prior to the twenty-fourth 
regular session of the State legislature. The protest further recites that these two 
senators had vacated their seats and forfeited their right to vote in the joint conven¬ 
tion, as stated in the second objection. 

It appears by the journal of the joint assembly that Senator Getzendanner and 
Pearson were present therein and voted for Mr. Scott. 

The constitutional provision is that— 

“No person holding a lucrative office under this State, the United States, or any 
foreign office * * * shall be eligible to a seat in the legislature.” 

On January 20, 1899, resolutions of like tenor and effect with these protests were 
offered in the senate, declaring that by virtue of this constitutional provision and 
the acceptance of said commissions each of these senators “thereby became ineligi¬ 
ble and forfeited his right to a seat in this body.” These resolutions were referred 
to the committee on privileges and elections, and on January 23 1899, that commit¬ 
tee reported in lieu of said resolutions a substitute declaring that Getzendanner and 
Pearson are legally qualified and entitled to hold their membership in the senate, 
and have not vacated their seats therein under the provisions of section 13 of article 
3. The senate adopted the substitute on January 24, 1899. 

This judgment of the senate of West Virginia upon the title of Senators Getzen¬ 
danner and Pearson to their seats therein is a finality. The Senate of the United 
States can not reverse it. As before said, the State senate is, under the State consti¬ 
tution, “the judge of the elections, returns, and qualifications of its own members.” 
Such constitutional powers have effect, not only to make the members of each house 
the judge in each case, but also to forbid that the members of any other tribunal 
shall be judges thereof to review or reverse such original judgment. The jurisdic¬ 
tion of each of the houses of the State legislature is original and exclusive. (Case of 
H. A. Du Pont, Fifty-fourth Congress, first session, Report No. 289, p. 104.) 

The senate of West Virginia is the only tribunal which could either hear or deter¬ 
mine lawfully these objections to the qualifications of Senators Getzendanner and 
Pearson. Its judgment in their favor is final. The Senate of the United States has 
not authority to originate, hear, or determine any objections to the qualifications of 
those who acted and voted as members of the senate of the State. Where the title 
of an individual member of the legislature who has once been seated has been deter¬ 
mined by a subsequent adjudication of the house to which he belongs, such judg¬ 
ment will not be here disturbed or inquired into. (Potter v. Robbins, Senate 
Election Cases, 88; Clark and Maginnis v. Sanders and Powers, Senate Election 
Cases, 652; the case of David Turpie, Senate Election Cases, 625; the petition of H. 
A. Du Pont (minority report), Fifty-fourth Congress, first session, Report No. 289, 
pp. 98-104; Sykes v. Spencer, Senate Election Cases, 521.) 

It should be noted that the Senate of the United States, in Stanton v. Lane (Sen¬ 
ate Election Cases, 180), upon a similar case came to a like conclusion with the sen¬ 
ate of West Virginia. James H. Lane was elected a Senator from Kansas in April, 


892 


BEN ATE ELECTION CASES. 


1861, and took his seat July 4, 1861. It appears that on June 20, 1861, President 
Lincoln appointed him brigadier-general of volunteers; that he accepted the appoint¬ 
ment and qualified to perform its duties, but had resigned the office. The governor 
of Kansas appointed Frederic P. Stanton to fill the vacancy, but on January 16, 1862, 
the Senate voted that Lane was entitled to his seat in that body. Of the majority, 
some held that the office of brigadier-general did not exist on June 20, 1861; others 
that, although Lane held the office after he had been elected Senator, yet, having 
resigned the same before taking his seat in the Senate, he did not come within the 
constitutional provision (art. 1, sec. 6). It profits little here to discuss the reasons 
or motives of State senators or of the Senate. 

It is well said in David Turpie’s case (Senate Election Cases, 625), that—. 

“This body is made by the Constitution the judge of the election, qualifications, and 
returns of its members. The senate of Indiana is likewise the judge of the election, 
qualifications, and returns of its own members. We must determine all questions 
arising out of the proceedings of the electors. But who sustain the character of 
electors is to be determined by the legislative body of the State. We can not inquire 
into the motive which controlled its judgment.” 

The third and fourth objections of John T. McGraw, remonstrant, may be con¬ 
sidered as two parts of the same ground of objection. It is charged that Republican 
senators in the State senate threatened to unseat unlegally certain Democratic senators 
unless the house acceded to demands (not stated), and did unseat R. F. Kidd, a 
Democratic senator, in partial execution of these threats; that thereby the Democratic 
members went into joint convention under duress; that this joint convention was not 
held under the law, but under a private agreement between the members of the two 
houses, ratified by both houses; that this agreement was void as against public policy 
and vitiated the election of Senator Scott; that the effect of this agreement was to 
disfranchise one Democratic senator and one Democratic member of the house of 
delegates, who, had they been permitted to cast their votes in the joint convention, 
would have voted against Mr. Scott. 

It does not appear from the journal of the joint convention that the alleged Demo¬ 
cratic senator, Kidd, and the alleged Democratic delegate, Dent, were present or 
offered to vote in the joint convention. Their names were not called. If present, 
as stated in brief and argument, they appear to have acquiesced, to have waived 
their alleged right as representatives. 

It does appear that the State senate had a Republican majority and the house of 
delegates had a Democratic majority, and that when the joint convention met that 
body was comprised of 49 Republicans and 46 Democrats. All of the latter voted for 
Mr. McGraw; all save one of the Republicans, who voted for Judge Goff, voted for Mr. 
Scott, giving him 1 majority, as stated. 

It was conceded in briefs of counsel and in their oral arguments that there was 
excitement and much activity, as is not unusual in legislative bodies in like situations, 
and that there were contests against sitting members from political motives. One 
Democrat in the senate, Kidd, had been unseated and a Republican, Morris, seated 
in his place. One sitting Republican in the house, Via, had been unseated and a 
Democrat, Logan, had been seated in his place. Another sitting Republican, Brohard, 
of Taylor County, had been excluded from participation in the proceedings of the 
house on January 16, and on January 26 the committee had reported that Dent was 
entitled to the seat. Neither Kidd, Dent, nor Brohard had voted that day for Senator 
in either house, balloting separately, nor had either offered to vote. In the senate 
Morris was present and voted for Scott. 

As the joint convention was to assemble at noon on the following day, it would 
appear difficult to unseat Brohard and seat Dent earlier the next morning. 

At this juncture the Republicans would have had in joint convention 50 votes and 
the Democrats would have had 46 had the joint convention met without further 
action in either house. 

As a result of conferences among adherents of the two parties, 5 Democratic mem¬ 
bers of the house, including Mr. McKinney, the speaker, and Mr. Davis, the leader 
of his party, signed the following proposal, which was thereafter presented to and 
signed by 5 Republican senators, including Mr. Marshall, the president of the senate. 
This proposal, which purports to have been made by Democrats and accepted by 
Republicans, is as follows: 

‘ 4 To the Republican Senators: 

“Gentlemen: In order to bring about a peaceful and orderly settlement of the 
differences now existing between the two houses of the West Virginia legislature, we 
submit to you the following propositions, viz: 

“(I) The election and qualification of the member of the house of delegates from 
Taylor County to be heard and tried upon its merits. 


NATHAN B. SCOTT, SENATOR FROM WEST VIRGINIA. 893 

“ (2) The election and qualification of a senator from the Fourth senatorial district 
to be heard and tried upon its merits. 

‘‘(3) These two cases to be finally voted upon in each house on the 7th day of 
February, 1899, after 2 p. m. of that day, with privilege to any party to take any 
evidence pertinent up and until noon of February 6, 1899, when the taking of 
evidence shall be closed. 

“(4) All contests and controversies as to the membership of each house other than 
the two above named to be dismissed, and no further contests or controversies 
respecting the membership therein to be brought or entertained by either house. 

(5) Fending the investigation hereinabove referred to, neither Dent, Brohard, 
Kidd, or Morris shall vote, in joint assembly or otherwise. 

“ (6) All resolutions now pending in either house, looking to unseating any mem¬ 
ber thereof, or questioning the seat of any sitting member, shall be dismissed. 

“(7) Each of the signers of this proposition pledges himself to vote and use all 
honorable means to have the stipulations herein contained faithfully carried out and 
observed. 

“o. s. mckinney. 

“ISAIAH BEE. 

“W. L. MANSFIELD. 

“JNO. W. DAVIS. 

“R. W. MORROW. 

“We, the undersigned Republican senators, concur in the foregoing proposition. 

“R. E. FAST. 

“O. S. MARSHALL. 

“ALONZO GARRETT. 

“S. L. BAKER. 

“S. W. MATTHEWS.” 

Its first sentence declares its purpose to bring about a peaceful and orderly settle¬ 
ment of the differences now existing between the two houses. It is to be noted that 
those who are alleged to have acted under duress first signed and submitted the 
proposal, then those who it is alleged threatened them consented to accept the 
proposal. 

This proposal stipulated that the case of Brohard, Republican, in the house, and 
the case of Kidd, Democrat, in the senate, shall be heard and tried upon their merits, 
and finally voted on February 7, 1899; that, pending the decision of these cases, 
neither Dent, Democrat, nor Brohard, Republican, in the house, nor Kidd, Demo¬ 
crat, nor Morris, Republican, in the senate, shall vote, in joint assembly or other¬ 
wise, and that all contests and resolutions looking to unseating of members shall 
cease in each house. 

The signers pledge themselves individually to so vote and to use all honorable 
means to have those stipulations carried out. Five Democrats in the house and 5 
Republicans in the senate were numerically sufficient to change the partisan majority 
in either house. As these men included the presiding officers of each house and 
the floor leaders of the majority in each house, their statement of the spirit and pur¬ 
pose of the proposal of these Democrats, accepted by these Republicans in the paper 
they signed, should be accepted as true. 

In the senate, as a result of this conference, Senator Garrett the next morning 
offered the resolution postponing the Kidd v. Morris contest, as before stated, and 
forbidding further participation of Morris in the voting for Senator of the Fnited 
States. It was adopted unanimously. 

In the house Mr. Davis offered a like resolution, postponing the discussion of the 
Dent v. Brohard contest, as before stated. It was adopted unanimously. 

Mr. John W. Davis, conceded by both sides to be a man of ability and high char¬ 
acter, the leader of the Democratic majority in the house, who introduced the reso¬ 
lution, in a printed deposition (used by both sides in argument before the committee 
and so used here) gives his own reasons for signing this paper, and declares that the 
statement he makes for himself was in accord with conversations he had with other 
Democratic signers at or before the time the agreement was presented to him for sig¬ 
nature. Mr. Davis’s statement may therefore be taken as the statement of all the 
Democrats who signed this proposal: 

“ Question. What was your understanding of the purpose of that agreement upon 
the part of the Democrats ? 

“Answer. That agreement, as I understood it, was entered into for the purpose of 
avoiding further trouble between the two houses and in each house in regard to 
contests then pending, the situation having become very acute, rumors being current 
upon all hands of an intention upon the part of the Republican minority in the 


894 


SENATE ELECTION CASES. 


house to withdraw and organize a separate house and upon the part of the Repub¬ 
lican majority in the senate to unseat various Democratic senators, and it being 
believed that the best interests of the people of West Virginia and the proper conduct 
of the business of the legislature demanded an early and final settlement -of these 
questions. ” 

In the senate Kidd had been unseated by the Republican majority. In the house 
Via had been unseated and Brohard was about to be unseated by the Democrats. 
Other contests were pressed from partisan motives. The pacific understanding of 
these 10 men ended this strife and enabled the legislature to proceed with its business. 

It may be that wrong and injustice to members and contestants was done and 
intended to be done upon one side or the other or on both sides. There is no evi¬ 
dence of force or fraud in these transactions in the documents and facts before us. 
The unanimous vote in both houses upon resolutions postponing pending contests 
for seats disproves duress if the word duress has meaning in this remonstrance. 

We can not say that such an agreement as this between 10 men, and favored after¬ 
wards by all members, is “void as against public policy.” We can not declare void 
the unanimous act of the senate or the unanimous act of the house of like pacific 
purpose. Nor can we perceive how it “vitiated said election.” Its immediate result 
was not “to disfranchise one Democratic senator and one Democratic member.” Its 
immediate result, if any, was pacific, and the subsequent action of both houses had 
as its immediate result the disfranchisement of Morris, the sitting Republican senator. 

The sitting Republican delegate from Taylor County had eight days before been 
excluded from participation in the proceedings. The Federal statute required this 
legislature to proceed to elect the Senator of the United States on the second Tuesday 
after organization of the legislature and to meet next day at noon in joint assembly, 
and pending this joint meeting both houses thus disposed of contested cases. As it 
was unanimous in both houses, the members appear to have considered it a fair and 
reasonable plan, as it facilitated the meeting in joint assembly—to have considered it 
to be in the public interest. 

It is true that speedily thereafter Morris was unseated and Kidd seated again, and 
that Brohard was unseated and Dent seated in his place. The merits of these con¬ 
tests were to be decided by the two legislative bodies having original and exclusive 
jurisdiction. As we have said, their public and solemn adjudications of the election 
of these members can not be reviewed, or reversed, or affirmed here. Therefore the 
third and fourth objections of the remonstrants are insufficient. 

A majority of the committee do not mean to decide that the Senate could not 
refuse a seat to a claimant who is elected by a legislature which is itself directly and 
plainly the result of force or fraud. If, on the eve of a joint assembly, a majority in 
either house should cease to be judges of the elections and qualifications of members 
of the minority and become revolutionary conspirators; if, for instance, a majority 
should imprison enough minority members on the day of the joint convention to 
reverse the majority therein, we do not assert that the Senate should not inquire into 
such violence, force, and intimidation, or that it could not declare that there was a 
joint convention in form only, but not in fact, and that there was no election there¬ 
fore. In the past the Senate has investigated fraud and corruption in elections 
where the proceedings were regular and the form was lawful, and then declared 
there had been no election. 

The case presented by the remonstrants in no wise resembles such extreme case. 

Upon careful consideration of the case before us the majority of the committee 
agree that Mr. Scott was peacefully and fairly elected, and that the first four objec¬ 
tions of the remonstrants are not valid objections. 

The fifth objection assigned by John T. McGraw, memorialist, is that at the time 
of the election of Mr. Scott he was a citizen but not an inhabitant of the State of 
West Virginia, but was an inhabitant of the District of Columbia. 

It is admitted that Mr. Scott was born in Ohio; that when a young man he 
removed to Wheeling, in West Virginia, engaged in business, had resided there until 
January 1, 1898, when he was appointed by the President Commissioner of Internal 
Revenue, and upon his confirmation thereafter he came to Washington to discharge 
the duties of this Federal office, but with the intent to retain his residence, citizen¬ 
ship, inhabitancy, and domicile in Wheeling, W. Va., his home; that in accord with 
this intent he exercised unchallenged the right to vote and did vote on November 
8, 1898, in the precinct in Wheeling where his residence was and had remained 
unchanged; that he came here with no intent to change his domicile to Washington 
from Wheeling, and that he claims to be an inhabitant of Wheeling, W. Va., and 
that he remained in Washington in the discharge of his official functions with intent 
to return to his home in Wheeling when his duties of office here ended. 

The mere statement of facts should suffice to show that this objection is unfounded. 
The Federal Constitution requires that the Senator shall be an “inhabitant” of the 


NATHAN B. SCOTT, SENATOR FROM WEST VIRGINIA. 895 


State. This term is a legal equivalent of the term “resident,” and residence is what 
is required by the law of West Virginia to entitle the male citizens of that State to 
vote. 

The committee, without extended discussion, were unanimously of the opinion that 
Mr. Scott was an inhabitant of AVest A r irginia at the time of his election to the Senate 
of the United States and is entitled to retain his seat. 

The committee ask to be discharged from the further consideration of the several 
memorials, and recommend the passage of the following resolution: 

“Resolved, That Nathan B. Scott has been duly elected a Senator from the State of 
AVest Virginia for the term of six years commencing on the fourth day of March, 
eighteen hundred and ninety-nine, and that he is entitled to a seat in the Senate as. 
such Senator.” 

VIEWS OF THE MINORITY. 

The remonstrants in this case took a large number of depositions, on notice to Mr. 
Scott of the time and place, and these depositions were offered to the committee as 
evidence. But these depositions were not taken under authority of the committee, 
but were taken as though there was a case pending in a court of the United States 
between parties. The committee rejected the depositions. 

Then the remonstrants asked to have the witnesses whose depositions had been 
taken summoned as witnesses, but the committee refused this request, and the case 
was tried on the journals of the two houses of the legislature of AVest Virginia, and 
some arguments of counsel as to certain facts. Later your attention will be called to 
parts of the said depositions. 

The facts, on the evidence received by the committee, are as follows: 

On the 11th day of January, 1899, the legislature of AVest Virginia assembled and 
each house was organized. 

In the senate the Republicans had about two-thirds, but two Republicans would 
not vote for Mr. Scott. The house of delegates was Democratic by a small majority. 

In the Senate objection was made to H. C. Getzendanner and E. G. Pierson being 
admitted to seats as senators, on the ground that each of them, after election in 
November, 1896, and after serving as senators in 1897, had accepted a commission as 
an officer in the Volunteer Army of the United States—an office of profit— and served 
as such officers—one as captain and the other as lieutenant. At first these objections 
were laid on the table, and the tw*o persons objected to took their seats. 

Afterwards the matter was referred to a committee, and the committee, in sub¬ 
stance, found the facts as stated in the objections to be true; but the committee fur¬ 
ther found that each one of these army officers had been discharged before the legis¬ 
lature met in January, 1899. Therefore the committee reported that said Getzen¬ 
danner and Pierson were still senators; and this report was adopted, by a party vote, 
on the 24th day of January, 1899. This ruling was made on a demand for the previ¬ 
ous question and without any debate. 

And on the same day (January 24, 1899) two petitions for contests of seats in the 
senate were presented to the senate as follows: 

J. H. Collins, Republican, against J. H. Marcum, Democrat, and D. M. Shirkey, 
Republican, against AValter L. Ashby, Democrat. 

On January 20, 1899, the following resolution was offered by Mr. AVhite: 

“As there is a contest pending in this senate against AValter L. Ashby, a member 
of said senate from the ninth senatorial district: Therefore, be it 

“ Resolved , that said AValter L. Ashby be suspended from voting or discussing any 
matter that may come up before this body until said contest is settled.” 

This resolution, under the rules, went over. And at the same time, January 20, 
1899, Mr. AVhite offered another resolution in these words: 

“Resolved, That R. F. Kidd, from the fourth senatorial district, now holding a 
seat in the senate of the State of AVest Virginia, was not duly elected on the 8th day 
of January, 1898, but B. M. Morris was duly elected: Therefore, be it 

“Resolved, That said R. F. Kidd vacate his seat in the senate of AVest Virginia, and 
M. B. Morris, of Gilmer County, be required to be sworn in as a member of said 
body.” (66.) 

This is the first mention of the name of M. B. Morris in the journal of the senate. 
This resolution also went over, under the rules, for one day. 

As above shown, the petition of contest of J. H. Collins against James H. Marcum 
was presented to the senate on the 24th day of January, but it was marked by the 
clerk “ Filed January 21, 1899, at 8.15 p. m.” 

On January 21, Mr. Latham offered the following: 

“ AVhereas a contest has been instituted by J. II. Collins against James H. Marcum 
for a seat in the senate as senator from the sixth senatorial district, and believing 


896 


SENATE ELECTION CASES. 


that, pending the further investigation of the case, justice and right dictate that said 
seat be declared vacant: 

“ Resolved , That the seat in the senate now occupied by Janies H. Marcum as a 
senator from the sixth senatorial district be declared vacant; that the committee on 
privileges and elections be instructed to make a thorough investigation of the case 
and have power to send for persons and papers and any ballots in dispute, and to 
take such pertinent evidence as may be offered by either party, and that said Col¬ 
lins and Marcum be granted leave to appear before said committee in person and by 
counsel, and that pending such investigation neither James H. Marcum nor J. H. 
Collins be permitted to participate in the proceedings of the senate nor to occupy a 
seat therein.” (78,79.) 

This resolution was laid over for a day under the rules. 

On January 23, 1899, the resolution offered by Mr. White unseating Kidd and 
seating Morris was called up and a substitute was offered by Mr. Smith, a Republi¬ 
can, and was adopted by a party vote—16 to 8. That resolution is as follows: 

“ Whereas there is now pending in the senate a contest between R. F. Kidd and 
B. M. Morris for a seat as senator from the fourth senatorial district of this State; and 

“ Whereas said contest has been referred to the committee on privileges and elec¬ 
tions, where the same is pending, and can not be determined for a considerable 
length of time; and 

“ Whereas it is the opinion of the senate that pending said contest B. M. Morris 
should be entitled to said seat: Therefore, be it 

“ Resolved, That R. F. Kidd is not entitled to a seat in the senate as a senator from 
the fourth senatorial district, and that B. M. Morris is entitled to a seat in the senate 
as a senator from the fourth senatorial district pending the final disposition of said 
contest proceedings, and that said B. M. Morris be forthwith sworn in as such sen¬ 
ator.” (91,92.) 

And B. M. Morris was sworn as a senator pro tempore et pro hdc vice. (94.) 

On the 24th of January, 1899, the senate voted for United States Senator, and N. B. 
Scott received 17 votes, counting Getzendanner and Pierson, the two who were army 
officers, and B. M. Morris, the man sworn in temporarily on the preceding day. 

And J. T. McGraw received 8 votes, Whitaker, Republican, not voting. 

Protests were filed against counting the votes of Getzendanner, Pierson, and 
Morris. 

In the house of delegates a vote was had for United States Senator on January 24, 
1999; and 

John T. McGraw received 38 votes and Nathan B. Scott received 29 votes, Nathan 
Goff received 1 vote, Reese Blizzard received 1 vote, and Mr. Asbury was absent and 
did not vote. 

Scott had 46 votes, McGraw had 46 votes, and 2 votes scattered. 

On the 24th of January, 1899, when the vote for United Slates Senator was taken 
in each house separately, there were pending for seats in the Senate the following 
contest cases: M. B. Morris v. R. F. Kidd, D. M. Sliirkey v. W. L. Ashby, and J. H. 
Collins v. J. H. Marcum. And in the house of delegates there were then pending 
references as to the title to seats of the following persons: H. F. Brohard v. W. R. B. 
Dent, of Taylor County; Wilbur Spencer, VV. S. Talbott, J. D. Logan, W. B. Cutright, 
Julius Scherr, B. J. Redmond, and Frank Legge, respectively. 

The case of Brohard and Dent was in this shape: Neither had a certificate of elec¬ 
tion. The returns showed a majority for Brohard, but on a recount by the returning 
board, authorized by law, it appeared that Dent was elected. This board consisted 
then of two members only, and the two did not agree. However, the officer who 
made the list of members, a Republican, put the name of Brohard, a Republican, on 
the list, though he had no certificate. 

Then, after the first vote for United States Senator, five Democrats of the house 
and five Republicans of the senate made a written agreement on January 24, 1899, 
which is copied into the report of the majority of this committee, and by this agree¬ 
ment the contests between Morris and Kidd in the senate, and between Brohard and 
Dent in the house, were to be laid over until the 7th day of February, 1899, and 
neither one of the four was to be allowed to vote until the contests were decided; and 
all other contests were to be dismissed. 

And on the morning of the 25th of January, 1899, resolutions were passed in each 
house to carry that agreement into effect. 

And afterwards, on the last-named day, the two houses met together and voted for 
United States Senator, and N. B. Scott received 48 votes, J. T. McGraw received 46 
votes, and Nathan Goff received 1 vote—total, 95. (S. J., 112.) 

So Mr. Scott received a majority of 1 vote and was declared elected. 

After Mr Scott was declared elected, the senate, on February 7, 1899, had no 
trouble in giving Mr. Kidd the seat from which he had been suspended, pro hac vice. 


NATHAN B. SCOTT, SENATOR FROM WEST VIRGINIA. 897 


No one then disputed his right, for the purpose of his exclusion had been accom¬ 
plished. (S. J., 312.) 

And on the same day Dent was given his seat as a member of the house. 

From the facts above stated, which are proved by the journals of the two houses, 
it appears that the election of Mr. Scott was procured by fraud. The senate elected 
two members for that body (Getzendanner and Pierson), and suspended a Democrat 
(Kidd) until after the Senatorial election so that he could not vote against Mr. Scott. 
It must be remembered that Mr. Scott was declared to be elected by a majority of 
1 vote only, and that on the vote in the houses separately on the day before Scott 
received 46 and McGraw 46 votes. So without some curiously fraudulent proceed¬ 
ings Scott could not be elected. 

Now, look at the facts proved by the depositions above mentioned. 

Together these depositions prove a regular conspiracy to elect Mr. Scott by fraudu¬ 
lent practices. 

George W. Atkinson was governor, William M. 0. Dawson was secretary of state 
and chairman of the Republican State executive committee, A. B. White was col¬ 
lector of internal revenue and secretary of the Republican State executive committee, 
Edgar P. Rucker was attorney-general of the State, and all of them Republicans, and 
all of them engaged in the conspiracy to elect Mr. Scott. 

The governor, it appears, commenced the fraudulent proceedings. At the Novem¬ 
ber election, 1898, R. B. Ash, of Marion County, a Democrat, was elected a member 
of the house of delegates over A. N. Pritchard, a Republican. On the 29th day of 
November the governor of the State sent a telegram in these words: 


“Charleston, Kanawha County, W. Va., 

1 ‘ November 29, 1898. 

“Capt. A. L. Pritchard, Mannington: 

“Party interests demand contest in your case. We will pay all expenses. Please 
wire Kendall to proceed immediately. 

“G. W. ATKINSON.” 


And on the same day the secretary of state and the collector of internal revenue 
sent a telegram in these words: 

“Charleston, Kanawha County, W. Va., 

“ November 29, 1898. 

“Capt. A. L. Pritchard, Mannington: 

“Republican State executive committee request you to allow the use of your name 
in contest proceeding to protect interests of Republican party. All costs and expenses 
will be paid by us. 

“WM. M. 0. DAWSON, Chairman. 

“A. B. WHITE, Secretary .” 

These telegrams were addressed to Capt. A. L. Pritchard at the place of his resi¬ 
dence, and were received by him, but were intended for Mr. A. N. Pritchard, who 
was defeated by Mr. Ash for a seat in the house of delegates (pp. 86, 87, brief of 
remonstrants). 

In the house of delegates Logan had the regular certificate of election, and the 
committee on privileges and elections reported that he was prima facie entitled to be 
seated, though Via, who had no certificate, was improperly placed on the roll of the 
house by the secretary of state, W. M. O. Dawson, who sent the telegram to 
Pritchard. 

Attorney-General Edgar P. Rucker and United States District Attorney Joseph H. 
Gaines and others represented Via in his contest with Logan before the house com¬ 
mittee, and in his speech before that committee the attorney-general, in an ill- 
tempered way, charged that the committee had already agreed to decide against Via 
and in favor of Logan, and if they were to carry out this prearranged plan the com¬ 
mittee need not be surprised “to see blood flow in the capitol on the next day, 
because plans had been formulated looking to the preventing of the seating of Logan, 
even at the cost of shedding of blood ” (p. 81 of brief of remonstrants). 

Threats were made by Republican members of the senate to turn out all of the 
Democratic senators elected in November, 1898, if a compromise was not made. 

And many threats were made by Republicans in authority to organize a new house 
of delegates out of the Republicans then sitting and the Republicans defeated at the 
election in 1898, if a compromise was not made. 

For the purpose of carrying out these threats, the defeated candidates for seats in 
the house of delegates of the Republican party were summoned and came to the 
capital. 

And for the same purpose, Republicans defeated in November, 1898, for seats in 


S. Doc. 11-57 



898 


SENATE ELECTION CASES. 


the senate were summoned to the capital to occupy seats to which Democrats were 
duly elected, and the contests mentioned were instituted in the senate. 

These fraudulent and revolutionary proceedings had the active support of the 
senate, the governor, the secretary of state, and the attorney-general, and all for the 
purpose of electing Mr. Scott to a seat in this body. 

And threats were made to turn out of the senate all Democratic senators elected 
in November, 1898, if the compromise were not made. 

Threats of violence were made by Republicans against Republican members who 
refused to vote for Mr. Scott. 

It is inferred from the form of the paper called “The compromise agreement,” in 
the report of the majority of the committee, that the Democrats in the legislature 
made the proposition for the compromise to the Republicans. The inference, though 
natural from the form of writing, is not true as matter of fact. The Republicans in 
the senate made the proposition to the Democrats in this way, as shown by the 
deposition of Hon. William A. Ohley. He testifies: 

“Very soon after the unseating of Kidd I was met by Hon. Z. I. Vinson, of Hunt¬ 
ington, chairman of the Gold Democratic State committee, at the Hotel Ruffner, who 
invited me to a conference with himself and John T. McGraw in John T. McGraw’s 
room. He said that Senators Fast, Marshall, and others, though they acted with 
their party in unseating Kidd, did not approve of such revolutionary tactics, and 
wished to make a compromise fair and just to all concerned under which they could 
break away from their party associations and act in accordance with good conscience. 

“He stated that if a sufficient number of Democrats in the house to carry the reso¬ 
lution through the house, in conjunction with the Republicans, would agree to the 
proposition he had to make, that enough Republicans in the senate would agree to 
such a resolution to carry the proposition in the upper branch of the State legisla¬ 
ture. His proposition had the essential features of the agreement as it was finally 
signed. 

“He said at the time that should Senator Elkins and Chairman Dawson learn what 
was going on before it was done they would put a stop to it, and urged that if the 
Democrats wished to retain their newly elected senators and to reseat Kidd, who 
had already been unseated, that they act with all speed, w r hile those Republicans 
who had cooperated with their party in unseating Kidd were repentant and willing 
to act the part of honest officials and conscientious citizens. He was requested, 
either by myself or Mr. McGraw, to put his proposition in writing. 

“He did so then and there, and the proposition filed herewith is the original 
proposition then and there drafted, except as to the striking out of the word ‘con¬ 
servative’ and the change of dates in section 3. Figuring what the result would be 
under the compromise agreement it was seen at once that the Democrats could not elect 
a United States Senator by a party vote, but the advantage of retaining the legisla¬ 
ture in its integrity and of preventing any further revolutionary tactics upon the part 
of the Republicans, and the undoing of the great wrong that had already been done 
Senator Kidd, was regarded by us as of too great advantage to be lightly thrown 
aside, particularly in the face of the evident purpose of the Republicans to further 
increase their majority by throwing out additional hold-over senators. 

“ I therefore, after discussing the length of time allowed for maturing the contests 
and objecting to any greater delay than February 4, which was inserted in the paper, 
took the paper to the capitol and in fifteen minutes had the necessary number of 
signatures of the Democratic members of the house of delegates. The paper was 
then handed to Mr. Vinson, and he stated that he would immediately obtain the 
signatures of the Republican senators. The next time I saw the paper was that 
evening, when it was handed to me by George W. McClintic, who had been acting 
as counsel for the Republican committee in the Republican contest cases. The dates 
of hearing the contest cases had been changed in the paper from the 4th day of Feb¬ 
ruary to the 10th day of February, Mr. McClintic stating that this much time was 
necessary in order to mature the contest cases. 

“The Democrats objected to this delay, as needed legislation had already been 
delayed too long. We were in the hall of the house of delegates, and there was a 
considerable dispute before the opening of the night session as to this change in date. 
Very much to the surprise of the Democrats, who supposed that the leaders of the 
Republican party were neither aware of the agreement nor approved of it, many of 
the latter appeared to participate in the discussion. W. M. 0. Davidson, chairman 
of the Republican State committee, and the secretary of the committee, A. B. White, 
of Parkersburg, and others appeared as though interested in the proceedings. 

“The speaker of the house called the house to order and, on motion, it was 
adjourned in a very few minutes; and by arrangement the signers of the agreement 
and those proposing the same agreed to meet at the Ruffner Hotel, and did later 


NATHAN B. SCOTT, SENATOR FROM WEST VIRGINIA. 899 


gather at the room of Speaker McKinney. Here were present Senator Stephen B. 
Elkins, Congressman B. B Dovener, Chairman Dawson, and other leaders of the 
Republican party. All seemed to be fully cognizant of the terms of the agreement 
and fully advised as to the difference between the parties having it under considera¬ 
tion. After some discussion the change in time to the 7th of February was agreed 
upon, and resolutions carrying out the terms of the agreement were spread on the 
records of the two houses the following morning, which was the day of the joint 
convention.” 

In short, those depositions prove the following: 

1. That in November, 1898, soon atter the election, the governor of the State, the 
secretary of state, who was also chairman of the Republican State committee, and 
the secretary of the said committee and others entered into a fraudulent conspiracy, 
the purpose of which was to elect Mr. Scott United States Senator. 

2. And that the said conspirators, aided by the attorney-general and State senators 
and others in authority, accomplished their fraudulent purpose by fraudulent means. 

The questions of law arising on the facts of this case will be briefly noticed. 

It is urged by the majority of the committee that as each house of the legislative 
body was the judge of the election of its own members its decision can not be 
reviewed. This proposition, though often asserted, is not sound law, in the broad 
way it is asserted, because there are many cases to which it does not apply. 

It is a universal rule of the courts that a judgment obtained by fraud will be set 
aside on timely application of the party injured if he is not in fault. One of the old 
judges put the law down in this form: 

“The jurisdiction of courts of equity to set aside a decree obtained by fraud in an 
original bill filed for that purpose has long been unquestioned.” 

See Freeman on Judgments, sections 486 and 489, where the learning on this sub¬ 
ject is collected. 

The report of the majority of the committee states an exception to their general 
rule, which, if fairly applied to the facts, would be decisive against Mr. Scott The 
paragraph of that report referred to is on page 8, and concludes in these words: 

“In the past the Senate has investigated fraud and corruption in elections where 
the proceedings were regular and the form was lawful, and then declared there had 
been no election.” 

Senators sometimes forget that this Senate is the judge of the “elections, returns, 
and qualifications” of its own members. 

There is no need to cite cases to prove that, under common law, and under the 
constitution of West Virginia, quoted in the majority report, Getzendanner and 
Pierson, after they were elected senators in 1886, and after serving as senators in 
January, 1887, resigned their seats by accepting offices of profit under the United 
States, and the.State senate again elected them to seats in the senate. These senators 
were elected by the people and had their seats and resigned their seats and never 
were reelected by the people, but were reelected by the senate and voted for Scott. 

But if it were admitted that the State senate were absolutely the judge of the 
elections and qualifications of its members, and that their decision could not be 
investigated elsewhere, still the record shows that in the case of Kidd the State sen¬ 
ate did fraudulently and illegally suspend Kidd, who was duly elected a senator and 
received a certificate of election, and was duly sworn and admitted to his seat, and 
afterwards, on January 23, 1899, the senate passed a resolution, not as to his elec¬ 
tion or qualifications, not that he was not elected, not that his opponent, Morris, was 
elected, but the senate resolved in substance, without authority, that Morris should 
occupy Kidd’s seat pending the contest—a fraudulent device, entirely outside of any 
pretense of authority, for the purpose of securing the election of Mr. Scott to a seat 
in this senate. 

Remember that all of the members of both houses were 97, and on the vote as 
counted, Scott received 48, McGraw 46, and Goff 1. Getzendanner and Pierson, 
senators only by the fraudulent action of the senate, voted for Mr. Scott, and Kidd 
was prevented from voting against Scott by the revolutionary and fraudulent con¬ 
trivances of the senate in suspending Kidd without any cause stated and without 
any authority to do so; for no man will dare to contend that any legislative body in 
any one of the United States has the authority to suspend a member without cause 
or evidence. 

If you once establish such a doctrine, the inevitable result will be anarchy. For, 
unfortunately for this country, men like Governor Atkinson, Secretary of State Daw¬ 
son, and Collector White are to be found to invent plans of fraud; and bold men 
like Attorney-General Rucker may be found to threaten bloodshed on “plans for¬ 
mulated,” even when addressing a legislative committee as lawyers. And he the 
State’s chief law officer! 

The senate of the State, for cause, and by a two-thirds vote, could expel a mem- 


900 


SENATE ELECTION CASES. 


her, or by a majority vote could decide a contest after hearing, but who so bold as 
to assert that the senate had authority, without any cause, to suspend a member 
pending a contest for his seat? And that contest in this case was merely a fraudu¬ 
lent pretense, invented by the governor and his associates, in champertous and 
fraudulent conspiracies, to institute contests and pay “all costs and expenses,”— 
“against the peace and dignity of the State.” 

Kidd’s case, when he was suspended, was before a committee of the senate, and 
that committee had sent for and obtained certain ballots, but never afterwards asked 
for or received any other evidence. And the senate, after Mr. Scott was declared 
elected, unanimously declared that Kidd was elected. And peace was again a bless¬ 
ing in Charleston. 

But it is insisted that Kidd and Dent were suspended by agreement. That agree¬ 
ment was, in itself, an illegal and void contract, and against public policy. And 
the purpose of the senate to elect Mr. Scott by fraud is clearly shown by giving 
Morris Kidd’s seat pending the contest, and allowing Morris to vote for Scott on the 
24th of January when the houses voted separately. 

The following authorities cited by counsel demonstrate that the action of the sen¬ 
ate in suspending Kidd from his seat, and the agreement made by five Republicans 
of the senate and five Democrats of the house of delegates, consenting to the sus¬ 
pension of Kidd and suspending Dent of the house, was illegal and void, and vitiated 
the pretended election of Mr. Scott, which was the result of such fraudulent practices. 

McCreary on Elections, 149, 151, 185, 186. 

State v. Purdy, 36 Wis., 43. 

Tucker v. Allen, 7 N. H., 140. 

Lanssing v. Carpenter, 20 N. Y., 447. 

People v. Maynard, 15 Mich., 171. 

Alvord v. Collier, 20 Pick., 128. 

Cooley’s Con. Lim., 616. 

In 1873, in the special session, there was a great debate of this question here 
raised, in the Caldwell case. It appeared that Caldwell had bought off his competi¬ 
tors and spent other money improperly, and afterwards Caldwell was regularly 
elected. 

In that debate Senator Saulsbury said: 

“ What is meant by the authority conferred upon each House of Congress to judge 
of the election of its members? It is something distinct from judging jf their quali¬ 
fications and the returns of elections. It must mean that you may look into the 
election and judge not only whether it took place at the proper time and at the proper 
place, and by the proper legislative body (for these facts must appear on the face of 
the returns), but also to see if the election was conducted in the proper manner; 
that is, whether it was the free expression of the legislative will, uncontrolled and 
undeterred by force or fraud.” (90.) 

And Senator Morton, in the same case, said: 

“If the Senate can not inquire into the circumstances attending the election of its 
members, whether such election was procured by bribery, corruption, or other matter 
impairing the freedom of elections, such inquiry can not be made anywhere. * * * 
The Constitution provides that each House shall be the judge of the elections, returns, 
and qualifications of its members. 

“It may inquire into his qualifications, whether the member is 30 years old, had 
been nine years a citizen of the United States, and was an inhabitant of the State; 
whether the returns of the election are in due form and show an election by the 
lawful legislature of the State, certified as required by law, and whether the election 
was conducted according to law, and was free or attended by circumstances that 
would make it invalid, such as bribery, fraud, or intimidation. * * * * Whatever 
impairs the freedom of elections is illegal and against public policy, and makes the 
election void.” (Mar. 11.) 

And Senator Pratt, speaking against Caldwell’s claim to a seat, said: 

“Called upon to pronounce whether that election was valid, can I say that such 
means were honest and proper, and not calculated to interfere with that freedom of 
elections which is the very soul of our political system?” (95.) 

This case was referred to the committee on the protest of 49 members of the legis¬ 
lature of West Virginia against the seating of Mr. Scott. The entire legislature, by 
law, could not have been over 97. So a majority of the whole body protests. 

And good government and fair dealing protest. 

• E. W. Pettus. 

The foregoing resolution, reported by the Committee on Privileges and Elections, 
was the subject of debate in the Senate April 25, 1900 (Cong. Rec., vol. 33, pp. 4651- 
4653); April 26, 1900 (ibid., pp. 4696-4710), and April 27, 1900 (ibid., p. 4742 and 
pp. 4750-4759). 


NATHAN B. SCOTT, SENATOR FROM WEST VIRGINIA. 901 


[Extniets from remarks of Mr. McComas in support of the resolution declaring that Mr. Scott was 
duly elected a Senator from the State of West Virginia. Found in the proceedings of April 25,1900, 
m the Congressional Record, vol. 33, pp. 4651 and 4652.] 

“Mr. President, the certificate of the junior Senator from West Virginia was in 
due form, and he was seated. 

“Certain remonstrants protested that he is not entitled to retain his seat. 

“These memorials came in for decision by the committee on the proceedings in 
the journals, agreed facts, and admissions of counsel. 

“It is true the remonstrants offered to prove the declarations of a couple of State 
officials, of several members of the assembly, and of attorneys before committees, 
and certain acts of little significance detailed in certain ex parte depositions, or, 
rather, printed copies of them. 

“The committee was almost unanimous in the opinion that there was no proffer 
of evidence of frauds or intimidation to warrant any investigation of these vague and 
unimportant matters. I will briefly state the case made before the committee, con¬ 
fining myself to undisputed facts: 

“ On January 24, 1899, both houses voted separately for Senator. 

“On January 25, 1899, both houses met in joint assembly. Ninety-five votes were 
cast. Mr. Scott received 48 votes, Mr. McGraw 46 votes, and Mr. Goff 1 vote. Mr. 
Scott received a clear majority of the votes cast and was declared duly elected Sena¬ 
tor, and the convention adjourned. 

“A quorum of the joint assembly, or quorum of each house, was present and 
voted. The proceedings w r ere regular, and Mr. Scott was elected, unless some or all 
of the objections I now recite invalidate his election: 

“1. The first objection assigned by the remonstrants is that there were 97 votes 
constituting the joint assembly; that 49 votes was a majority, but Mr. Scott received 
only 48 votes. 

‘ ‘ But the journal shows 25 senators and 70 members present and voting. The total 
was 95 and Mr. Scott received 48 votes, a majority of the votes cast. It is true that 
by the apportionment of West Virginia the senate contained 1 more and the house 
1 more member. 

“ Prima facie, from the journal, these seats were vacant or these members were 
not present. They did not, if present, vote or claim the right to vote. Mr. Scott’s 
majority was a valid majority. 

“ As was said in Lapham and Miller (Senate Election Cases, p. 602): 

“ ‘The ground alleged is that there was not a majority of the whole legislature 
actually voting for the members chosen. In our opinion that is not necessary. 
There was a quorum of each house present in the joint assembly; there was a 
majority of that quorum actually voting for the members chosen. In our opinion 
that was a valid election.’ 

“See also Clark and Maginnis v. Sanders and Power (Senate Election Cases, 637); 
Davidson v. Call (Senate Election Cases, 711). 

“ The journals of the senate and house explain the nonparticipation of the senator 
from the fourth senatorial district and the member of the house of delegates from 
Taylor County. 

“On January 20, 1899 (senate journal, p. 66), a resolution was introduced in the 
senate declaring that Kidd, the sitting member, was not elected and that Morris 
was duly elected, directing that Kidd vacate his seat and that Morris be sworn in. 

“On January 23, 1899 (senate journal, 91-94), this resolution was considered and 
a substitute was adopted reciting the contest between Kidd and Morris, the refer¬ 
ence to and pendency of the contest before the committee on privileges and elec¬ 
tions, and the opinion of the senate that Morris was entitled to the seat pending the 
contest, wherefore the senate resolved that Kidd was not entitled and that Morris 
was entitled to a seat in the senate from the fourth senatorial district pending the 
contest, and that Morris be sworn in. Mr. Morris took the oath and w r as seated. 

“On January 25,1899 (senate journal, p. 1081), the senate adopted a resolution that 
the contested election case of Morris v. Kidd be the special order for February 7, 
1899, with leave to either party to take testimony, and ‘that pending the deter¬ 
mination of such contest neither Morris nor Kidd should be entitled to vote or sit as 
a member of this body.’ 

“The journal of the house shows tha< in the contest of Dent for the seat of Bro- 
hard a like course was pursued, and a resolution was passed that pending the 
decision neither Dent nor Brohard ‘ be permitted to participate in the proceedings 
of this house.’ The judgment of the senate was a finality in respect of Morris v. 
Kidd. The judgment of the house was a finality in respect of Dent v. Brohard. 
Each house, by the constitution of West Virginia, is made ‘the judge of the election, 
returns, and qualification of its members.’ Therefore, on January 25 only 95 mem- 


902 


SENATE ELECTION CASES. 


bers had the right to participate and vote in the joint assembly. Of these Mr. Scott 
received 48, a majority. Therefore the first objection is unfounded. 

“ 2. The second objection is that Senators Getzendanner and Pearson, who voted 
for Mr. Scott, had forfeited their seats by accepting commissions in the regiment of 
State volunteers in the service of the United States during the Spanish-American war. 

“These two members were ‘hold-over’ senators who, between the session of the 
last legislature and the assembling of the new legislature in 1899, had accepted, had 
served under, and had resigned their commissions prior to the meeting of the 
legislature. 

“ It appears by the journal of the joint assembly that Senators Getzendanner and 
Pearson were present therein and voted for Mr. Scott. 

“The constitutional provision is that— 

“ ‘ No person holding a lucrative office under the State, the United States, or any 
foreign office * * * shall be eligible to a seat in the legislature. ’ 

“On January 20,1899, resolutions were offered in the senate declaring that by virtue 
of this constitutional provision and the acceptance of said commissions each of these 
senators ‘thereby became ineligible and forfeited his right to a seat in this body.’ 
These resolutions were referred to the committee on privileges and elections, and 
on January 23, 1889, the committee reported in lieu of said resolutions a substitute 
declaring that Getzendanner and Pearson were legally qualified and entitled to hold 
their membership in the senate and had not vacated their seats therein under the 
provisions of section 13 of article 3. The senate adopted the substitute on January 
24, 1899. 

“The judgment of the senate of West Virginia upon the title of Senators Getzen¬ 
danner and Pearson to their seats therein is a finality. The Senate of the United 
States can not reverse it. As before said, the State senate is, under the State consti¬ 
tution, ‘the judge of the elections, returns, and qualifications of its own members.’ 
Such constitutional powers have effect, not only to make the members of each house 
the judge in each case, but also to forbid that the members of any other tribunal 
shall be the judges thereof to review or reverse such original judgment. The juris¬ 
diction of each of the houses of the State legislature is original and exclusive. (Case 
of H. A. Du Pont, Fifty-fourth Congress, first session, Report No. 289, p. 104.) 

“The senate of West Virginia is the only tribunal which could either hear or 
determine lawfully these objections to the qualifications of Senators Getzendanner 
and Pearson. Its judgment in their favor is final. The Senate of the United States 
has not authority to originate, hear, or determine any objections to the qualifications 
of those who acted and voted as members of the senate of the State. Where the 
title of an individual member of the legislature who has once been seated has been 
determined by a subsequent adjudication of the house to which he belongs, such 
judgment will not be here disturbed or inquired into. (Potter v. Robbins, Senate 
Election Cases, 88; Clark and Maginnisv. Sanders and Power, Senate Election Cases, 
652; the case of David Turpie, Senate Election Cases, 625; the petition of H. A. 
Du Pont (minority report), Fifty-fourth Congress, first session, Report No. 289, pp. 
98-104; Sykes v. Spencer, Senate Election Cases, 521.) 

“It should be noted that the Senate of the United States in Stanton v. Lane (Senate 
Election Cases, 180), upon a similar case, came to a like conclusion with the senate 
of West Virginia. James H. Lane was elected a Senator from Kansas in April, 1861, 
and took his seat July 4, 1861. It appears that June 20, 1861, President Lincoln 
appointed him brigadier-general of volunteers; that he accepted the appointment 
and qualified to perform its duties, but had resigned the office. The governor of 
Kansas appointed Frederic P. Stanton to fill the vacancy, but on January 16, 1862, 
the Senate voted that Lane was entitled to his seat in that body. Of the majority 
some held that the office of brigadier-general did not exist on June 20, 1861; others 
that, although Lane held the office after he had been elected Senator, yet, having 
resigned the same .before taking his seat in the Senate, he did not come within the 
constitutional provision (Art. I, sec. 6). It profits little here to discuss the reasons 
or motives of State senators or of the Senate.” 

[Extracts from remarks of Mr. Pettus in opposition to the resolution declaring that Mr. Scott was duly 
elected a Senator from the State of West Virginia. Found in the proceedings of April 26, 1900 in 
the Congressional Record, vol. 33, pp. 4696, 4697, 4698.] 

“Mr. President, I claim that it has been my habit in discussing law questions to 
deal fairly with my own mind and to assert no proposition of law which I do not 
believe to be true. I do this as a matter of policy, if for no better reason; for the 
man who is in the habit of advocating false propositions of law will so debauch his 
own mind, no matter what may be his learning or brain power, that he can not see 
the truth, though he meet it at noon in the public road. He makes ‘such a sinner’ 
of his intellect ‘as to credit his own lie.’ 


NATHAN B. SCOTT, SENATOR FROM WEST VIRGINIA. 903 

u The question now submitted for your judgment is whether, according to the law 
of the land, the Hon. N. B. Scott is entitled to a seat as a Senator from West Virginia. 
The Committee on Privileges and Elections have given their report to the effect that 
he was so entitled; but that report is now to undergo the scrutiny of the Senate. 

“The learned and accurate lawyer who made the report and has ably presented 
the argument to sustain it has discussed two questions not now in issue, because they 
were unanimously decided by the committee in his favor and were abandoned by ‘•he 
parties contesting. The first was the objection that Senator Scott was not an inhab¬ 
itant of West Virginia, and the second was that 48 votes were not a majority of the 
entire legislature. Neither of these objections was well founded in law, and nothing 
will be said by me as to either of them. 

******* 

“The facts, from the evidence as received by the committee, are as follows: 

“ On the 11th of January, 1899, the legislature of West Virginia assembled. Each 
house was organized. In the Senate the Republicans nad about two-thirds of the 
members. * * * 

******* 

“The house of delegates was Democratic by a small majority. I beg Senators’ 
attention to this part of the statement. In the senate objection was made to H. C. 
Getzendanner and E. G. Pierson being admitted to seats as senators, on the ground that 
each of them after election, in November, 1896, and after serving as senators in 1897, 
had accepted commissions as officers in the U. S. Army, an office of profit, and 
served as such officers, one as captain and the other as lieutenant. 

“At first these objections were laid on the table, and the two persons objected to 
took their seats. Afterwards the matter was referred to the committee on privileges 
and elections, and the committee in substance found the facts as stated in the objec¬ 
tion. But the committee found that each one of these army officers had been dis¬ 
charged before the legislature met in January. Therefore the committee reported 
that Getzendanner and Pierson were still members, and this report was adopted by 
a party vote on the 24th day of January, 1899. This decision was made on a demand 
for the previous question and without debate. 

“ It is proper to state here that the 24th day of January, the day on which this 
vote was taken, was the day on which each of the houses was to vote separately for 
Senator. 

“ Now, it is insisted that this was no disqualification, or, if it is, that the senate of 
the State of West Virginia was a proper judge of the election and qualification of its 
own members. 

“Now that, as a general rule, is a correct proposition. Furthermore, it is a gen¬ 
eral rule that when the senate of a State decides on the election or qualification of 
its own members this body does not ordinarily inquire into it—not at all in ordinary 
cases. There comes up a contest, facts are heard, the matter is decided, and this 
body has time and again said that they will let it remain where it was decided. 

“But that is not this case. Here two senators, regularly elected, appeared and 
offered to take their seats. It was objected that those two senators had resigned 
their seats by accepting office under the United States and that they could not be 
properly received in that body. 

“Now, Mr. President, I do not dispute the proposition of law as asserted by the 
Senator from Maryland, that that is the general rule where you decide on the elec¬ 
tion and qualification of members, but in all cases in the law courts fraud vitiates 
every business transaction, if it is sufficiently brought to the attention of the court 
and in proper form. So fraud in this very matter we are considering vitiates every 
such proceeding. This body has so declared, and the courts have so declared, and 
the Senator from Maryland has so declared in this very report itself. To be sure, he 
did not seem to see exactly how it fits. I desire to read a paragraph from the report 
of the Senator from Maryland. I call it his report. It is the report of the committee, 
but it was prepared by him. 

******* 

“Now, Mr. President, in that connection I beg to read another paragraph from 
another report of this same committee. I believe it is good law. The committee 
says it is and cites many authorities. This is the writing of the distinguished Senator 
from New Hampshire: 

“ ‘It is clear that if, by bribery or corrupt practices on the part of the friends of a 
candidate who are conducting his canvass, votes are obtained for him without which 
he would not have had a majoritv, his election should be annulled, although proof 
is lacking that he knew of the bribery or corrupt practices.’ (Pomeroy’s case, Taft 
Election Cases, 330.) 


904 


SENATE ELECTION CASES. 


‘ ‘A number of authorities are cited to prove the proposition, and it is proved. Well, 
are you going to put a bridle on this Senate so as to prevent them from looking into 
all sorts of fraud and corruption in the election of one of your body? If you are 
going to do that, you had as well abandon business and give it over to fraudulent 
men, and men who can buy what they want. 

“Mr. President, on this subject that I am at present considering—that is to say, 
whether those two senators had a right to seats in that body—it does not depend 
upon any statute law; it does not depend upon any constitutional law. It has been 
the law of England from the very foundation of the common law to the present day. 
It is now and always has been the law in the United States and of every one of the 
States where the common law prevails. 

******* 

“Mr. President, we were talking about two military senators, I will call them. 
The Senator from Maryland comes up like the brave and fair lawyer that he is, and 
says that the decision in the Lane case was not the law. It has always been the 
law in England that where a man holds one office and accepts another inconsistent 
with the discharge of the duties of the first he thereby resigns his first office. This 
has been the law from time immemorial. 

“I recollect an old case, away back yonder in the black-letter books, where a 
justice of the peace in England concluded that it would suit his purposes if he had 
the office of constable also, and thereupon he applied for the office of constable and 
was appointed constable of his bailiwick. The case came up for judgment, to ascer¬ 
tain whether he was a justice of the peace any longer, and the judges said he was 
not; that by accepting the office of constable, which w as utterly inconsistent with the 
office of justice of the peace, he had resigned his first office; it was vacant, and he 
could not discharge any of its functions. That is a simple case. It is away back in 
the black-letter books, and there is nothing to the contrary of it since. 

“ You talk about the constitutions of the various States. There have been some 
people—not the Senator from Maryland—but there have been some people who have 
actually tried to fritter away the constitution of West Virginia in reference to this 
subject, which says that a man who holds an office of profit under the United States, 
or any other power, is ineligible to the office of member of the legislature of West 
Virginia. If he is ineligible he can not hold the office lawfully. A man can not go 
into an office and go out of an office and come back into the" office at his will and 
pleasure. An office is a continued thing. One term of an office can not be broken 
in two and renewed at the will of the man who holds it. If a man be ineligible to 
hold an office after he is elected to it, he goes out.” 


Friday, April 21, 1900. 

The Secretary read the resolution reported by Mr. McComas from the Committee 
on Privileges and Elections March 12, 1900, as follows: 

“ Resolved , That Nathan B. Scott has been duly elected a Senator from the State 
of West Virginia for the term of six years commencing on the 4th day of March, 
1899, and that he is entitled to a seat in the Senate as such Senator.” 

A vote being taken on the above resolution, the same was agreed to, as follows: 

Ayes—Messrs. Allen, Allison, Bacon, Baker, Bard, Bate, Berry, Burrows, Butler, 
Carter, Chandler, Clark (Wyo.), Clay, Cullom, Davis, Deboe, Depew, Elkins, Foster, 
Frye, Gear, Hansbrough, Harris, Hawley, Jones (Ark.), Jones (Nev.), Kean, Lind¬ 
say, Lodge, McComas, McCumber, McEnery, McLaurin, McMillan, Martin, Nelson, 
Perkins, Platt, Pritchard, Proctor, Quarles, Rawlins, Ross, Shoup, Simon, Spooner, 
Stewart, Sullivan, Taliaferro, Teller, Vest, and Warren—52. 

Nays—Messrs. Morgan, Pettus, and Turner—3. 

(Cong. Rec., vol. 33, pp. 4759, 4760.) 


Saturday, May 19, 1900. 

Mr. McComas, from the Committee on Privileges and Elections, reported the fol¬ 
lowing resolution; which was referred to the Committee to Audit and Control the 
Contingent Expenses of the Senate: 

“Resolved, That there be paid out of the contingent fund of the Senate the sum 
of $2,850 to Nathan B. Scott, a Senator from the State of West Virginia, in reimburse¬ 
ment of expenses necessarily incurred by him in defense of his title to his seat; and 
also that there be paid out of the same fund $2,850 to John T. McGraw for expenses 
incurred by him and other remonstrants contesting the seating of Senator Nathan B. 
Scott. These payments are appropriated as full and final compensation for all 
expenses, cash, and counsel fees incurred by the parties.” 

(Cong. Rec., vol. 33, p. 5734.) 


NATHAN B. SCOTT, SENATOR FROM WEST VIRGINIA. 905 


Friday, May 25, 1900. 

Mr. Gallinger, from the Committee to Audit and Control the Contingent Expenses 
of the Senate, reported the resolution submitted by Mr. McComas on the 19th instant, 
with amendments, as follows: 

In line 1 strike out the words “out of the contingent fund of the Senate;” and in 
line 6 strike out the words “out of the same fund.” 

The amendments were agreed to, and the resolution as amended was referred to 
the Committee on Appropriations. 

(Cong. Rec., vol. 33, pp. 6015, 6016.) 


SENATE ELECTION CASES. 


906 


[Fifty-sixth Congress, first session.] 

WILLIAM A. CLARK, Senator from Montana. 


At the beginning of the first session of the Fifty-sixth Congress William A. Clark was duly admit¬ 
ted to a seat in the Senate as a Senator from the State of Montana for the term of six years, com¬ 
mencing March 4,1899. On the same day a memorial signed by certain citizens of Montana was 
presented in the Senate protesting against the validity of the election of Mr. Clark, and a petition 
signed by other citizens of Montana to the same effect was also presented. These were referred to 
the Committee on Privileges and Elections. 

The committee submitted a report in the case April 23,1900, in which report the committee found 
that Mr. Clark was not legally elected to the office of United States Senator from the State of Mon¬ 
tana, for the reason that while he received 54 votes in the legislature by which he was chosen, and 
there were only 39 against him, leaving him an apparent majority of 15, he had obtained more than 
8 votes of this majority through illegal and corrupt practices. The committee also submitted with 
their report a resolution that Mr. Clark was not duly and legally elected to a seat in the Senate by 
the legislature of the State of Montana. 

Two of the members of the committee, while agreeing to the resolution reported by the committee, 
dissented from many parts of the report and did not agree with the majority of the committee in the 
general conduct of the investigation of the case, nor in regard to the admission of much of the evi¬ 
dence which was received by the committee in the case. 

The resolution submitted by the committee was the subject of debate in the Senate, and on the 11th 
day of May, 1900, Mr. Clark resigned his office as Senator. 

The history of the case here given consists of a statement of the proceedings of the Senate in the 
case as published in the Congressional Record, the report of the Committee on Privileges and Elec¬ 
tions, with the views of the minority of the committee, a statement of the days on which the case 
was discussed in the Senate, with a reference to the record of the same, and also a reference to the 
letter of Mr. Clark containing his resignation. 


PROCEEDINGS IN THE SENATE. 


Monday, December 4, 1899. 

Mr. Carter presented a memorial protesting against the validity of the election of 
William A. Clark as a Senator from the State of Montana, lie also presented a 
petition asking the Senate at the earliest practicable moment to set a time and place 
for the hearing before the Committee on Privileges and Elections of the protest 
therein set forth. The memorial and petition were referred to the Committee on 
Privileges and Elections. 

(Cong. Rec., vol. 33, p. 2.) 


Wednesday, December 6, 1899. 

Mr. Chandler presented certain exhibits in connection with the contest against the 
right of Senator W. A. Clark to a seat in the Senate. The papers were received, 
ordered to be printed, and were referred to the Committee on Privileges and Elections. 
(Cong. Rec., vol. 33, p. 85.) 


Thursday, December 7, 1899. 

Mr. Chandler, from the Committee on Privileges and Elections, reported the fol¬ 
lowing resolution, which was referred to the Committee to Audit and Control the 
Contingent Expenses of the Senate: 

11 Resolved, That the Committee on Privileges and Elections of the Senate, or any 
subcommittee thereof, be authorized and directed to investigate the right and title 
of William A. Clark to a seat as Senator from the State of Montana; and said com¬ 
mittee is authorized to sit during the sessions of the Senate, to employ a stenographer 
to send for persons and papers, and to administer oaths; and that the expense of the 
inquiry shall be paid from the contingent fund of the Senate upon vouchers to be 
approved by the chairman of the committee.” 

(Cong. Rec., vol. 33, p. 132.) 


WILLIAM A. CLARK, SENATOR FROM MONTANA. 


907 


Tuesday, December 12, 1899. 

Mr. Gallinger, from the Committee to Audit and Control the Contingent Expenses 
of the Senate, to whom was referred the resolution reported by Mr. Chandler, from 
the Committee on Privileges and Elections, on the 7th instant, relative to the inves¬ 
tigation of the title of William A. Clark to a seat in the Senate as a Senator from the 
State of Montana, reported it without amendment, and it was considered by unani¬ 
mous consent and agreed to. 

(Cong. Rec., vol. 33, p. 231.) 

Monday, April 23, 1900. 

Mr. Chandler, from the Committee on Privileges and Elections, reported the fol¬ 
lowing resolution: 

“ Resolved, That William A. Clark was not duly and legally elected to a seat in the 
Senate of the United States by the legislature of the State of Montana.” 

He also submitted a written report of the committee and the testimony taken by 
the committee. 

(Cong. Rec., vol. 33, p. 4537.) 

REPORT OF THE COMMITTEE. 

[The committee consisted of the same Senators named in the statement preceding 
the report of the committee in the case of Nathan B. Scott, supra.] 

Mr. Chandler, from the Committee on Privileges and Elections, submitted the 
following report, to accompany Senate Res. No. 284: 

The Right of Senator William A. Clark, of Montana, to a Seat in the Senate. 

This case was referred to the committee on December 4, 1899, upon a memorial 
dated February 25, 1899, signed by 27 members of the legislative assembly of Mon¬ 
tana, and upon a later memorial signed by Robert B. Smith, governor of Montana; 
T. E. Collins, State treasurer; Henry C. Stiff, speaker of the house of representatives 
of the sixth legislative assembly of Montana; A. J. Campbell, member of Congress from 
Montana, and Charles S. Hartman, ex-Representative in Congress from Montana. 

On December 7, 1899, the Senate directed the committee to investigate the right 
of W. A. Clark to a seat as Senator from Montana and authorized the sending for 
persons and papers. The committee began consideration of the case January 5, 1900, 
and hearings were held on January 5,6,8,9,10,11,12,13,17,19, 20, 22, 23, 29, 30, and 
31; February 2, 3,5,6, 7, 8,9,10,12,13, 15, 16, 17, 19, 20, 21, 22, 23, 24,26, 27, and 28; 
March 1 and 2; April 3, 5, and 6; and the finding of the committee was made April 
10, 1900. 

FINDING OF THE COMMITTEE. 

The finding of the committee is that the election to the Senate of William A. Clark, 
of Montana, is null and void on account of briberies, attempted briberies, and corrupt 
practices by his agents, and of violations of the laws of Montana defining and 
punishing crimes against the elective franchise. 

THE ADMITTED OR UNDISPUTED FACTS. 

This finding is made in view of certain admitted or undisputed facts, with their 
attendant circumstances, appearing in the testimony taken by the committee, as 
follows: 


I. 

Prior to 1895 the elections in Montana were accompanied by enormous expenditures 
of money, unquestionably involving widespread belief that extensive corruption was 
resorted to in all elections. Ex-Governor Hauser, a witness called by Senator Clark 
in his defense, testified that at the first State election the Big Four, so called, con¬ 
sisting of Senator W. A. Clark, Mr. Broadwater, Mr. Marcus Daly, and himself, as 
first contributions gave $40,000 each; and he also estimated that the expenditures 
made in connection with the contest to determine whether Anaconda or Helena 
should be the capital of the State were upward of $1,000,000. Senator Clark said 
he spent over $100,000 in that contest. 


II. 

On February 25, 1895, Montana undertook to protect herself against corruption m 
elections and passed a law relative to crimes against the elective franchise, which 


908 


SENATE ELECTION CASES. 


limited in purpose and amount the political expenditures which could be made in 
any election, either by a political committee or a candidate, especially naming a can¬ 
didate for United States Senator, who could not give more than $1,000 to any one 
committee in one county and could not pay more than $1,000 for his personal 
expenses in lawful ways specified, and provided that every political committee 
should make a public return of its expenditures, stating from whom every dollar was 
received and to whom every dollar was paid, and that every person acting otherwise 
than under a political committee should make a similar public return; and further 
provided a fine and imprisonment against persons omitting to make the return 
required by law. 

III. 

Senator Clark has been constantly a candidate for office. He was a candidate for 
Congress in 1888 and defeated. In 1890 there were two legislatures in Montana. He 
was elected United States Senator by the Democratic legislature, but was not seated. 
He was again a candidate for the Senate in 1893, but there was no election. In 1895 
he was voted for as the Democratic candidate, but Senator Carter was elected. 

In the summer of 1898, after he had consulted with Governor Hauser and other 
supporters, including at that time Mr. A. J. Campbell, a committee of his friends 
was created outside the State committee of the Democratic party, which was in the 
hands of persons not favorable to him; this, his committee, being organized for the 
purpose of controlling the politics of the State and securing the legislature to meet in 
January, 1899. This committee consisted of his son, Charles W. Clark, William 
McDermott, and A. J. Davidson, agent. Charles W. Clark was made treasurer, and 
the assistants of the committee were John B. Wellcome, Walter M. Bickford, A. J. 
Steele, John S. M. Neill, Frank E. Corbett, E. L. Whitmore, and Walter Cooper. 
To this committee Senator Clark gave unlimited authority to expend money which 
he agreed to furnish; an estimate, however, being made that at least $35,000 would 
be necessary to secure the State convention, and that $75,000 might be needed to 
secure the State legislature. 


IV. 

In the canvass which ensued the approximate expenditures admitted by the 
various members of his committee and their assistants were as follows: By Charles W. 
Clark, $25,000; by McDermott, $22,000; by Davidson, agent, $22,300; by Wellcome, 
$25,000; by Steele, $11,000; by Corbett, $5,000; by Whitmore, $4,600; by Cooper, 
$2,900, mainly furnished by Charles W. Clark; and the amount of these expenditures 
Senator Clark himself paid to his son. The advances and payments made by Senator 
Clark to his committee and agents, as admitted by him, amounted to about $139,000, 
of which sum Charles W. Clark received from him on August 12, 1898, $35,000; 
October 17, $20,000; November 23, $40,000, and February 13, 1900, $20,592; and 
in addition to this $139,000 Senator Clark paid $5,000 to McDermott, one of his 
agents; $5,000 to Wellcome, his attorney, and $5,000 to E. C. Day, a member of the 
legislature. 

V. 

None of the members of his committee or their assistants made the sworn returns 
required by law, nor did Senator Clark himself make any return. 

VI. 

In December, 1898, Senator Clark began negotiations with one H. W. McLaughlin, 
a member of the legislature, for the purchase of his wood lots and sawmills, and on 
the 9th day of December bought all Mr. McLaughlin’s property for the sum of 
$24,684, paying $10,000 down, and on the 12th of March paid him $6,000 cash and 
$8,684 in stock of a new lumber company to which the property was transferred, 
which lumber company employed Mr. McLaughlin as its agent, with a salary of 
$200 per month. 

VII. 

On December 31, 1898, Mr. Walter M. Bickford received from Mr. Charles W. 
Clark five one-thousand-dollar bills and four five-hundred-dollar bills, and went to 
Missoula for the purpose of purchasing a supposed indebtedness on account of his 
ranch of one E. P. Woods, a member of the legislature, but, not succeeding in meet¬ 
ing Mr. Woods, he returned the money to Mr. Charles W. Clark. In February 
1899, Mr. Massena Bullard paid to Mr. Kemper the amount due upon the ranch and 


WILLIAM A. CLARK, SENATOR FROM MONTANA. 


909 


a deed was made running to Mrs. Woods, which was not recorded, but in January, 
1900, the property having been sold to other persons for $9,750, the deed to Mrs. 
Woods was destroyed and new deeds made to the new purchasers. 

Senator Clark knew of Mr. Bickford’s attempts to purchase the indebtedness which 
Woods owed, and the correspondence shows that the object was to secure Mr. Wood’s 
vote for Senator Clark. Mr. Bickford testified: “In pursuance of that letter (the 
letter of November 21 from one Ector) and of the invitation I at that time received, 
I made arrangements to obtain, for the purpose of using it to prevent the indebted¬ 
ness of Mr. Woods going into the hands of Mr. Daly’s friends, the sum of $7,000 
with which to take up that indebtedness.” On November 12, 1898, Mrs. Woods 
mortgaged their sheep and cattle for $1,000, payable in one year, and on April 22, 
1899, paid the mortgage debt. Mr. Woods has left Montana and gone to New 
Mexico. 

VIII. 

Mr. W. E. Tierney w T as senator and W. C. Eversole and Michael Shovlin were 
representatives from Broadwater County. Mr. Tierney voted for Mr. Clark on the 
first ballot, and Eversole and Shovlin came over on the sixth. Mr. Tierney was a 
dealer in general merchandise in three small firms—Miss A. M. Darcy & Co., Tierney 
& Co., and Eversole & Co.—which had moderate capital and were in debt. After 
the legislature adjourned, on March 3, Mr. Shovlin deposited $8,500 in the Montana 
National Bank. Eversole, who had in fact been only a clerk, bought out Mr. 
Tierney; paying him $1,600 in cash and a credit with his new firm of $3,000. 

On June 1 Mr. Tierney organized the State Bank of Townsend with a capital stock 
of $25,000, of which he took $5,800. Mr. Shovlin took $1,000 and Mr. Eversole 
$1,000, nearly all the $25,000 passing through Mr. Tierney’s hands in currency. His 
$5,800 he says he took from the money drawer in a safe in the office of Miss Darcy & 
Co., but whence this $5,800 came he did not show by any w r riting whatever. 

IX. 

Mr. E. L. Whitmore, the confidental agent and employee of Mr. Charles W. Clark, 
purchased of D. G. Warner, a member of the legislature, certain lots in the town of 
Boulder, Jefferson County, and a small ranch near by and took the deed in his own 
name, paying the amount of $7,500 in bank bills in Helena in the first week of Jan¬ 
uary, 1899, the deed being recorded February 1, 1899. Mr. Warner has left Mon¬ 
tana and gone to California. 

X. 

Mr. H. H. Garr, member of the legislature, lodged a package during the session 
w T ith Mr. Peeler, of the bank of Kalispell. After the legislature adjourned he 
obtained the package, w r ent to his home, and in the name of Miss Wickham, his 
wife’s aunt, a milliner, who had lived with him for seven years, purchased a ranch 
for $3,500, for which he paid in currency, including a thousand-dollar bill, which 
money he said he obtained from his wife’s aunt, believing she had accumulated and 
kept it in a box in her room in his house. 

Mr. Garr had been a poor man, with little or no property, earning sometimes $50 
or $75 a month as a notary public, sometimes nothing. He had in cash $75 or $80 
w r hen elected and borrowed $25 to go to Helena with. His wife’s aunt paid board 
in the family at the rate of $2.50 a week. He had no previous knowledge of how 
she had accumulated this money. Mr. Steele had obtained interviews with him 
before the legislature met with a view to securing his vote, and after his arrival he 
figured in the Whiteside exposure. 


XI. 

Mr. John H. Geiger was a Republican who, after Mr. Whiteside’s exposure, was 
seated in the legislature as a senator, in place of Mr. Whiteside, on the 26th day of 
January, by the votes of the Republicans and the Democratic supporters of Senator 
Clark, on the ground that his name on a few of his ballots had been marked at the 
wrong end, and on the 28th Mr. Geiger voted for Senator Clark. He was a man 
with no regular occupation, was entirely without means, and a borrower of small 
sums. During the session of the legislature he received and carried home with him 
$3,600. After accounting for one or two petty sums he claims that he obtained this 
money by faro gambling and through $1,100 in bills which he found in his room 
and believed came in connection with some bills pending in the legislature which 
Mr. John B. Wellcome was carrying through as attorney. 


910 


SENATE ELECTION CASES. 


XII. 

Mr. B. F. Fine, a member of the legislature and a mining operator with no prop¬ 
erty, in May after it had adjourned, in pursuance of an agreement made during the 
session by Senator Clark after his election as Senator, received $2,000 from Senator 
Clark’s bankers, and since that date has received other moneys, making the sum of 
$5,000 in all, which has been all his earnings since his nomination, his only business 
being the hunting up of testimony to disbar or impeach Mr. W. A. Clark, of Madison 
County, one of the principal witnesses against Senator Clark, to do which no steps 
have yet been taken. 

XIII. 

Mr. Stephen Bywater, a Republican, 30 years ol age, and a railroad conductor, 
voted for Mr. Clark for the first time on the eighteenth ballot, when he was elected. 
On the 3d day of March, immediately after the legislature adjourned, he deposited 
in the Montana National Bank $15,000. He accounts for it by saying that he brought 
from Kalispell, his home, $6,000 in currency, which he kept with him during the 
whole session of the legislature, and by saying that he received on March 3 $9,000 
from his brother for the purchase of stock in a mining company in British Columbia, 
but he produced no writing in confirmation of his statement as to either the $6,000 
or the $9,000. He did produce a prospectus and letter showing that there was such 
a mining company and that he was its president, and a Mr. Peeler, a broker, with 
whom Mr. By water kept an account, testified that Mr. Bywater also kept a package 
of money not included in the bank account. 


XIV. 

Mr. E. C. Day was Senator Clark’s candidate for speaker, and was defeated in the 
Democratic caucus, receiving 25 votes against 30 votes for Mr. Stiff. Mr. Day was 
the leader of Mr. Clark’s forces in the legislature during all the ballotings after the 
second. On February 13 Senator Clark personally wrote a letter directing that 
$5,000 should be given to Mr. Day for his services in the legislature and as a retainer 
as counsel in the future. This amount was received by Mr. Day, through Mr. Well¬ 
come and Mr. Davidson, on the 3d day of March, the day after the legislature 
adjourned. 

Mr. Day testified that the services for which he received the $5,000 were as fol¬ 
lows: “1 had acted as the manager, you might say, or leader of his forces upon the 
floor of the house. I attended to keeping a quorum present and seeing that friends 
of his were sent for that were not present at roll call, and made motions and attended 
to the ordinary parliamentary—perhaps you would call it—procedure of his friends 
in that body.” Later Mr. Day received from Charles W. Clark $2,000 as fees in the 
Wellcome proceedings and $1,000 in two suits brought by Mr. Whiteside against the 
Butte Miner and the Helena Independent. 

XV. 

Mr. W. W. Beasley, a Republican representative, first voted for Senator Clark on 
the eighteenth ballot, when he was chosen, and that night or the next night he left 
Helena for St. Paul, having in his possession about $5,000 in currency, at least $1,000 
of which was a thousand-dollar bill. He claimed that he had taken this money 
with him to Helena and carried it in his vest pocket during the whole session. By 
no writing did he show whence he received it or what he did with it. He claimed 
that he kept the money with him because he was in embarrassed circumstances in 
the sheep business and was afraid of law suits. When he was elected he owed a 
board bill of nearly $400, and while in Helena took out a life-insurance policy and 
gave a note for the premium. All the time he had a bank account in the Thomas 
Cruse Savings Bank at Helena. 

ADDITIONAL STRENGTHENING FACTS. 

While the findings of the committee are justified by the foregoing admitted and 
undisputed facts, with their attendant circumstances standing alone, those facts are 
strengthened by additional facts, including various unsuccessful attempts to secure 
votes by offers of money, which, although denied, are found by the majority of the 
committee to be sustained by the preponderance of the testimony. It would unnec¬ 
essarily encumber and extend this report to attempt to give these additional facts in 
detail. 


WILLIAM A. CLARK, SENATOR FROM MONTANA. 911 

THE WHITESIDE $30,000 INCIDENT. 

In addition to these unsuccessful attempts at bribery certain other alleged attempts 
will be narrated, because there is difference of opinion in the committee concerning 
them. They are as follows: 

The case of W. A. Clark, State senator from Madison County, is one of those 
embraced in the Whiteside exposure. Mr. Clark and Mr. Whiteside testified that 
Mr. Wellcome placed $10,000 in an envelope and handed it to Mr. Whiteside, Mr. 
Clark’s initials being written by the latter on the back of the envelope, the amount 
to be delivered to Mr. Clark in case he voted for Senator Clark. This money was 
part of the $30,000 produced by Mr. Whiteside before the legislative committee. 
Mr. Wellcome denied these statements. 

State Senator H. L. Myers testified that in like manner $10,000 was placed in an 
envelope, upon the back of which he wrote his initials, and the package was retained 
by Mr. Whiteside to be delivered to him in case he voted for Mr. Clark. Mr. White- 
side testified that the $10,000 was furnished by Mr. Wellcome. Mr. M. L. Hewett 
testified that Mr. Charles W. Clark authorized the payment of $10,000 to Myers. 
Prior to the session of the legislature Mr. Charles W. Clark had, as shown by a letter 
signed by him, sent $500 to Mr. Myers as a retainer as counsel for the Bridger Coal 
Company, which Mr. Myers did not accept. But Mr. Clark denied the statement 
made by Mr. Hewett, and Mr. Wellcome denied the statement of Mr. Whiteside. 

As to Representative H. H. Garr, Mr. Whiteside testified that in like manner $5,000 
was furnished him by Mr. Wellcome for Mr. Garr and placed in an envelope, on the 
back of w r hich Mr. Garr wrote his initials, Mr. Whiteside retaining the package as 
in, the other tw T o cases. Mr. Garr admits seeing the money and writing his name 
upon the back of the envelope, but says it w r as for purposes of identification, and that 
he did not know’ w’hat the transaction meant. Mr. Wellcome denied these statements. 

Mr. Whiteside, who was a State senator, testified that in like manner $5,000 was 
given to him by Mr. Wellcome as part of $10,000 which he was to receive for his 
vote for Senator Clark, which he placed in an envelope and later produced before 
the legislative committee. Mr. Wellcome denied these statements. 

It is in connection with these last four cases of attempted bribery—those of Messrs. 
Clark of Madison, Myers, Garr, and Whiteside—that the controversy concerning 
Senator Clark’s election has been largely maintained from the beginning. 

The reasons why a majority of the committee find that, on the whole, the state¬ 
ments of Messrs. Clark of Madison, Myers, and Whiteside are true, notwithstanding 
the denials of Mr. Wellcome and others, may be briefly stated. The three accusers 
undoubtedly occupied the position of detectives, who willfully deceived the parties 
w ith w hom they w ere dealing and against whom they made charges. On the other 
hand, the parties against whom they testified and who make the denials are charged 
with crimes to which, if guilty, they would be quite certain to add the offense of 
false swearing. 

The majority of the committee, under all the circumstances appearing, are not will¬ 
ing to consider the situation as one of equilibrium between the detectives on the one 
hand and the alleged lawbreakers on the other. If Messrs. Clark of Madison, My¬ 
ers, and Whiteside testified falsely, they must have contemplated in the beginning 
a conspiracy of the basest character, to be followed up by perjury of the worst sort, 
and they must have intended to pass through ordeals in the course of the investiga¬ 
tions w hich would be made to which it can not be inferred they w’ere wiWing to 
subject themselves merely to prevent Senator Clark from becoming a United States 
Senator. 

THE ALLEGED DALY CONSPIRACY. 

In the opinion of the majority there w’as no affirmative disproof produced by Sena¬ 
tor Clark at an> time showing that the facts in connection with the $30,000 exposure 
were not true. The charge that the accusations and the exposure resulted from a 
conspiracy formed and carried forw ard by Mr. Marcus Daly w r as a necessity of Mr. 
Clark’s canvass and defense. But Mr. Daly and Mr. Conrad and others who were 
suspected of conspiracy denied all knowledge of the $30,000, of w^hich $27,000 was 
in one-thousand-dollar bills, which had been produced by Mr. Whiteside as the 
money furnished by Mr. Wellcome in the attempted briberies. No one-thousand- 
dollar bills were shown to have been in the hands of any of the alleged Daly con¬ 
spirators. On the other hand, the five one-thousand-dollar bills and four five-hun- 
dred-dollar bills w’hich Mr. Bickford took from C. W. Clark and carried to Missoula 
on December 31, in connection with the E. P. Wood’s transaction, were returned to 
Mr. Clark on January 1, and during the ensuing w^eek, when the alleged briberies 
were attempted, large sums in currency were in the hands of Mr. C. W. Clark and 
Mr. Wellcome, including various one-thousand-dohar bills. 


912 


SENATE ELECTION CASES. 


Mr. Clark, on January 3, had brought to him by a Mr. Hirshfield $9,000 in cur¬ 
rency, in which were three one-thousand-dollar bills, and from this $9,000, or the 
money returned by Mr. Bickford, he gave Mr. Wellcome three or four one-thousand- 
dollar bills. On December 28 Mr. Wellcome drew from the bank $10,000, of which 
he says one, two, three, four, or five were one-thousand-dollar bills, and he carried 
them in the inside pocket of his vest until he used them. There were on the 3d or 
4th of January three one-thousand-dollar bills and eight five-hundred-dollar bills in 
the possession of Mr. Whitmore, Mr. Charles W. Clark’s confidential agent in the 
purchase of D. G. Warner’s property. Charles W. Clark testified that his income 
was $250,000 per year. 

In connection with the consideration of these last four cases of attempted bribery— 
of Clark of Madison, Myers, Garr, and Whiteside—it is important to state, in view 
of the difference of opinion in the committee concerning the credibility of Messrs. 
Clark of Madison, Myers, and Whiteside, that the whole committee find that if all 
the testimony concerning the $30,000 and all the testimony of Mr. Whiteside and Mr. 
Clark, of Madison, were laid aside there would still remain sufficient evidence in the 
case to lead the committee to find, as they do, that Mr. Clark’s election is void. From 
the briberies which have been established the majority of the committee feel justified 
in finding that there were other successes in procuring, by corrupt practices, the votes 
of members of the legislature, where the facts naturally can not be directly proved. 

THE CONDUCT OF THE REPUBLICAN LEGISLATORS. 

The conduct of the Republican members of the legislature who, on the 28th day of 
January, left their Republican candidate and voted for Senator Clark and gave h*im 
his election, in the opinion of the majority of the committee, calls for special criti¬ 
cism. Senator Clark, beginning with 7 votes on January 10, had carried his votes 
up to 41 on the 27th of January. Mr. Conrad, beginning with 36 votes, had, on the 
27th, 29 votes, and until that day his natural strength of over 30 votes had not been 
impaired from the beginning. There was an absolute deadlock and no possibility of 
the election of a Democrat without the aid of the Republicans. 

On January 28, on the second ballot, Mr. Clark’s vote was carried from 41 up to 54. 
Mr. Conrad’s went down from 30 to 27, but only one of his supporters, Mr. Moran, 
voted for Senator Clark. Four Republicans, McKay, Worden, Hedges, and Lindsay, 
voted for the Republican candidate, Mr. Marshall, for whom they had first voted on 
January 10. 

Eleven Republicans—Messrs. Geiger, Hobson, Mitchell, Phillips, Beasley, By water, 
Ingersoll, Jaqueth, Long, Magee, and Marcyes—went over to Senator Clark and gave 
him the election. 

It is difficult to account for these Republican votes for Senator Clark. Senator 
Clark’s candidacy had been tainted on the 10th of January by the Whiteside exposure. 
The facts exposed had not been disproved on January 28. It is true that a grand 
jury composed of six persons had reported that while there was evidence tending to 
show that money had been used it would not, in their judgment, warrant a convic¬ 
tion by a trial jury, but no other fact impugning the testimony of Messrs. Whiteside, 
Clark, of Madison, and Myers had then appeared. 

The reasons given for the Republican votes for Mr. Clark seem to be pretenses and 
covers. Mr. Clark, who had been negotiating with Mr. Hobson, the leader of the 
Republicans, wrote a letter on the 16th of January, in which he declared himself to 
be in favor of a tariff on Montana products. Some of the Republicans said there 
ought not to be a deadlock, and that it would be better to have a Democratic Senator 
than a vacancy. 

No one pretends that any effort was made to bring about the election of any other 
Democrat that Mr. Clark, against whose agents the charges of bribery had been made. 
The committee do not say that the votes of all the 11 Republicans were improperly 
secured, but that those of Mr. Geiger, Mr. Beasley, and Mr. By water were has already 
been found. The circumstances of suspicion against the others are numerous. 

Senator S. S. Hobson is mainly responsible for the action of the Republican mem¬ 
bers. He was the chairman of their caucus and the leader in the Clark movement. 
He early began negotiations with Mr. Clark, and the latter’s written promise that he 
would be an independent tariff Democrat was addressed to Mr. Hobson under the 
date of January 16. 

Mr. Hobson was a man of moderate means. When he was elected he owed $22,000 
or $23,000 to the Fergus County Bank, of which he was president. This he paid in 
May, 1899, and went East and to Europe about the time Senator Clark went; and 
when in connection with the Fergus County Bank he feared some manifestation of 
indignation at his course from ex-Senator T. C. Power, Senator Clark, in accordance 


WILLIAM A. CLARK, SENATOR FROM MONTANA. 


913 


with a promise he had made soon after his election, promptly purchased the $46,000 
of the bank stock which Mr. Power owned and took a transfer thereof, which has 
not been recorded on the books of the bank. ' 

In the face of all the facts tending to impeach the conduct of so many of the 
Republican members, and of the evident political reasons why they should not have 
contributed their votes to the election of Senator Clark, a Democrat, under charges 
of corruption, the finding that Senator Clark’s election was obtained by corrupt 
practices, in the opinion of the majority, is much strengthened by the action of the 
11 Republicans who, on the 28th day of January, abandoned their own party and 
thus strangely elected a Democratic Senator. 

THE DISOBEDIENCE OF THE MONTANA LAW CONCERNING CRIMES AGAINST THE ELECTIVE 

FRANCHISE. 

The direct violations by Senator Clark and his committee and agents of the pro¬ 
visions of the Montana laws, before stated, are of the first importance in connection 
with the conclusions reached by the committee. The citizens and legislature of 
Montana in 1895, conscious of the discredit into which the State had fallen by the 
enormous expenditure of money in previous elections, made an earnest and legiti¬ 
mate effort to prevent corruption in politics in the future, and the act of February 
25, 1895, was passed and incorporated into the penal code of that year. 

RECITAL OF THE SUBSTANCE OF THE LAW. 

A concise but correct and complete analysis of this law of 1895 is as follows: 

The Montana Penal Code, in Title IV, headed “Crimes against the elective fran¬ 
chise,” in section 85 of the act of February 25, 1895, provides that no person, to aid 
in his election to a public office, shall, directly or indirectly, by himself or through 
another person, expend or promise to expend any money or other valuable thing, 
except, as later provided, ‘ ‘ for personal expenses and to a political committee. ’ ’ 

Section 86 provides that a candidate may pay— 

“(1) His own personal expenses for traveling and purposes properly incidental to 
traveling. 

“('2 ) For sending out special publications giving his position and views. 

“(3) For stationery and postage, telegraph and telephone and other public messen¬ 
ger service, and other petty personal expenses. ‘And in no other case whatever’ 
shall the total sum for his own personal expenses as authorized exceed the sum of 
$1,000 by any candidate for United States Senator.” 

Section 87 provides that a candidate may pay money to a political committee, not 
exceeding $1,000 by a candidate for United States Senator, nor to more than one 
committee in any county. 

Section 88 applies the term “political committee” to “any combination of persons ” 
who shall aid a party, principle, or candidate, and every such committee or combi¬ 
nation must have a treasurer who shall keep its accounts. 

Section 90 requires every treasurer to file his account within thirty days after an 
election, stating in detail his receipts and expenditures. 

Section 91 requires every person who, acting otherwise than under the authority of 
a committee, expends money, to file such a statement as is required of a treasurer 
“in the county in which he is a legal voter.” 

Section 98 requires every statement to be made on oath. 

Section 104 punishes violations of sections 90 and 91 by fine not exceeding $1,000 
and imprisonment for not more than three months. 

After the passage, in 1895, of this law punishing crimes against the elective fran¬ 
chise there was no serious occasion to test its provisions until 1898. In 1896 the 
coalition of the Silver Republicans with the Democrats made the State overwhelm¬ 
ingly Democratic, the plurality for Mr, Bryan being 32,043, and for Mr. Hartman, 
the Bryan Congressman, 24,503. In 1898, when Senator Clark renewed his canvass 
for the United States Senate, and his friends determined to directly disregard the 
law, he had no right to expend more than $1,000 through his one committee, nor 
more than $1,000 for his own personal expenses. 

He expended a sum vastly in excess of the limit provided by law, and failed to 
render any return, and no such return was made by the aforesaid persons acting in 
his behalf. This failure to make return was with full knowledge of the fact that it 
was widely charged and widely believed that the election had been accomplished by 
bribery and the corrupt expenditure of money on a very large scale. He also, in June, 
1899, with full knowledge of this belief and these charges, but in accordance with 
what he testified was his custom, destroyed all his checks, including those for his 


S. Doc. 11-53 



914 


SENATE ELECTION CASES. 


expenditures in his canvass, and was unable to give any full and satisfactory vouchers 
for the money so expended by him and his agents. 

The committee find the case proved without relying upon such destruction of checks, 
failure to render accounts, and disregard of the legal limit of expenditure. But they 
furnish to the committee strong additional reasons for believing the other evidence, 
which seems to them to establish the corruption charged. 

On the other hand, returns were made, as appears in the book of testimony, by the 
Republican State committee of expenditures of $4,291.31, by the Democratic State 
committee of $9,161.49, by the Silver Republican State Committee of $1,708.25, by 
the People’s Party State committee of $1,193.50, by the Silverbow County Democratic 
committee of $10,005.06, by the Silverbow County Silver Republican committee of 
$1,453.05. 

Mr. Marcus Daly testified that he contributed to the State committee $4,500, to the 
Silverbow County committee $2,500, to the Deer Lodge County committee $500, to 
the Missoula County committee $250; making his total contributions $7,750. Mr. 
Daly was not a candidate and has never been a candidate for any office. Mr. W. G. 
Conrad, who was the principal opposing Democratic candidate for United States 
Senator against Mr. Clark, swore that he contributed to the State and various county 
county committees between $5,000 and $10,000, not over $1,000 to any one committee, 
and after the election he spent between $200 and $300 outside of hotel bills, but paid 
no money in aid of his candidacy for Senator. 

QUESTIONS OF LAW INVOLVED IN THE CASE. 

In justifying the finding of the committee it is not necessary to discuss any doubt¬ 
ful questions of law. 

(1) It is clear that if by bribery or corrupt practices on the part of the friends of a 
candidate who are conducting his canvass votes are obtained for him without which 
he would not have had a majority his election should be annulled, although proof is 
lacking that he knew of the bribery or corrupt practices. (Pomeroy’s case, Taft 
Elec. Cases, 330; Caldwell’s case, 334; Clayton’s case, 348; Ingall’s case, 596; Payne’s 
case, 604, 609, 610; Minority report, 616.) 

(2) It seems to have been admitted that if the person elected clearly participated 
in any one act of bribery or attempted bribery he should be deprived of his office, 
although the result of the election was not thereby changed. (Pomeroy’s case, Taft 
Elec. Cases, 330; where Mr. Pomeroy had 84 votes against 25.) 

According to the law, as understood by the committee, Senator Clark can not be 
permitted to retain his seat. He received 54 votes and there were 39 against him, 
leaving him an apparent majority of 15. If he obtained through illegal and corrupt 
practises 8 votes which would otherwise have been cast against him, he w r as not 
legally elected. More than this number of votes, the committee find from all the 
evidence, was thus obtained. 

It is also a reasonable conclusion upon the whole case that Senator Clark is fairly 
to be charged with knowledge of the acts done in his behalf by his committee and 
his agents conducting his canvass. He arrived in Helena from Butte on January 4 
and remained there until after his election on January 28, and was in constant con¬ 
ference with his committee and agents. 

REJECTED TESTIMONY—CRITICISM OF THE PROSECUTORS. 

There has been much testimony received by the committee which has not proved 
of substantial value. Many of the witnesses were unreliable, having made contra¬ 
dictory statements and having apparently sought to obtain from both sides of the 
controversy money for testifying. 

Much criticism has been made of the contestants, especially of Mr. A. J. Campbell, 
a member of the House of Representatives, and an active prosecutor of the charges 
against Senator Clark. Some members of the committee can not refrain from express¬ 
ing their disapproval of many of the methods pursued by Mr. Campbell and Mr. 
Whiteside in the prosecution of the charges against Senator Clark, and they do not 
approve of the actions of Mr. Daly in agreeing to furnish an unlimited amount of 
money to carry on the prosecution. 

It appears from the evidence that Mr. Campbell, among other things, made a sug¬ 
gestion in a letter to a detective employed by hiiji indicating that he wished the 
detective to obtain information from some member of the grand jury of one of the 
counties in Montana; and, further, that his.stenographer or secretary gave several 
hundred dollars to two persons who made affidavits bearing on matters involved in 
this prosecution, the drafts for which sum Mr. Campbell paid. It also appears that 


WILLIAM A. CLARK, SENATOR FROM MONTANA. 915 

Mr. Campbell, in the coarse of the prosecution, participated in opening a letter writ¬ 
ten by Mr. Bickford to one Jesse B. Root. 

It further appears that Mr. Campbell was one of the committee of friends consulted 
by Senator Clark in the summer of 1898 at the opening of the canvass, and that he 
was nominated for Congress at the Democratic convention held that year by the 
supporters of Senator Clark, as well as other members of the convention. In June, 
1899, Mr. Campbell became the attorney fora corporation in which Marcus Daly was 
largely interested. 

A\ hile it is true that bribery can never be proved by the testimony of the briber 
nor of the person bribed, and that it is almost always necessary to obtain the required 
information from go-betweens or persons who have explored the field and made 
reports backward and forward as to the probability of obtaining results by bribery, 
yet some members of the committee believe that this does not justify the character 
of acts which are proved and established against Mr. Campbell. Some members of 
the committee, however, do not join in any criticisms of Mr. Campbell and Mr. Daly. 

These go-betweens who were employed by Mr. Campbell testified before the com¬ 
mittee, most of them in the last instance, in behalf of Senator Clark. Some of their 
statements were' true and some false. 

The testimony of these persons, where they had made conflicting statements, has 
not been regarded by the committee unless corroborated, as the testimony Of 
accomplices and detectives ought always to be corroborated. These witnesses, whose 
conduct has occasioned comment, had all been originally employed by Senator Clark 
or his committee or his friends. They are as follows: 

One Z. T. Cason -was retained by Senator Clark personally to endeavor to secure 
the vote of Representative Marcyes, and after the election was over, in a letter dated 
February 3, 1899, Senator Clark sent him $500. Cason testified before the supreme 
court and before this committee that he was authorized by Senator Clark to offer 
$10,000 to Mr. Marcyes. Later, getting into communication with Mr. Jesse B. Root, 
who was Mr. John B. Wellcome’s law partner, he received $1,500 from him, and in 
consideration thereof signed a letter drafted by Root, dated December 8, 1899, saying 
that his previous statement was untrue, and then went to Baker City, Oreg., where 
he remained under an assumed name until he was caught by the subpoena of this 
committee. 

One Benjamin Hill, during the senatorial contest, was a supporter of Senator 
Clark, and was paid by Senator Clark’s clerk $350. He later met Whiteside and 
agreed to get evidence against Senator Clark, and told him what he now says was a 
“pack of damn lies,” and he also entered into communication with Mr. Campbell. 
On June 30, 1899, he made a long affidavit against Senator Clark, which he now 
testifies was wholly false. He subsequently revealed to Senator Clark’s counsel what 
he claimed to be the whole story. He was paid $610 by Mr. Wellcome, and appears 
to have received from the prosecutors about $1,500. 

One L. L. Wright went to Helena to work for Senator Clark, and received from 
Mr. A. J. Steele $240. Later he engaged, through Benjamin Hill, to get evidence for 
the prosecution against Senator Clark, and on the 3d of November, 1899, he made an 
affidavit for the contestants, which he testified before the committee was false. He 
received $250 from Benjamin Hill, which appears to have come from the prosecutors. 

One Thomas T. Lyon went to Helena, at the request of Mr. Wellcome, to serve 
Mr. Clark. Mr. Wellcome gave him $250. Later, in company with Benjamin Hill, 
he engaged with Campbell to furnish evidence against Mr. Clark, and said that 
Campbell agreed to give him $5,000, w hich Mr. Campbell denies. Later he told his 
story to Charles W. Clark, and on November 29, 1899, made an affidavit for the 
Clark side. He received from that side $250 and received from Mr. Campbell $300. 
He told Mr. Henry G. Rickerts that he had received from the Clark side $2,000, 
w r hich he had deposited in his wife’s name. 

William F. Rector’s testimony was considered by the committee entirely unreliable. 
So was that of E. L. P. Ector* except w^here he was corroborated, as he was upon 
the important parts of his evidence by Senator Clark and Mr. Bickford and by his 
correspondence w r ith those two gentlemen. 

THE APPROACH TO THE SUPREME COURT. 

The majority of the committee think that the transactions connected with the 
judges of the supreme court of Montana need special consideration. The undisputed 
facts are as follows: 

I. 

Proceedings having been instituted against John B. Wellcome for the purpose of 
securing his disbarment for attempted bribery in connection with Senator Clark's 
election, it appears that on August 5, 1899, after a preliminary decision by the 


916 


SENATE ELECTION CASES. 


supreme court that the court had jurisdiction, one Dr. William Treacy, a Republi¬ 
can advocate of Senator Clark, at Helena, approached Mr. Justice William H. Hunt, 
one of the three members of the supreme court, being his family physician, bearing 
a proposition which he said was from a party in town that Judge Hunt could have 
$100,000 if the court would dismiss the proceedings against Mr. Wellcome, and he 
advised Judge Hunt to accept the amount. 

This proposition was first mentioned to Judge Hunt about noon. At half past 10 
in the forenoon a special train had arrived from Butte bringing Charles W. Clark, 
Frank E. Corbett, and E. L. Whitmore, who went to the Helena Club, where, during 
the day, they saw Mr. John S. M. Neill, Mr. Davidson, Mr. Steele, Mr. Steve Car¬ 
penter, and Mr. Thomas Miller. They said they came to see Mr. B. Platt Carpenter, 
to induee him to putin an answerfor Wellcome in the proceedings pending, and they 
returned in their special train to Butte in the afternoon, after Mr. Corbett had also 
had an interview with Mr. Justice Pigott, narratives of which were given to the 
committee by both parties thereto. 

[Mr. Justice Pigott testified that Mr. Corbett told him that he had come over on 
the special train because Mr. Neill on the previous night telephoned to Butte that 
it had been ascertained that a deal could be had with the supreme court; that he, 
Mr. Corbett, condemned such a movement, had a mortgage of $24,000 on Mr. Neill’s 
newspaper, and would foreclose it if Mr. Neill made any such attempt. All this Mr. 
Corbett denied.] 


II. 

On three occasions Dr. Treacy approached Attorney-General C. B. Nolan, who 
was in charge of the proceedings against Mr. Wellcome, and proposed to him to 
accept $100,000 and dismiss the proceedings. 

III. 

During the pendency of the proceedings against Mr. Wellcome Rev. A. B. Martin, 
president of a school at Great Falls, Mont., in which Senator Clark and Chief Justice 
Brantley were trustees, visited the chief justice with a letter in his hand dated Octo¬ 
ber 7,1899, from Senator Clark, wherein the latter urged him to see the chief justice 
and endeavor to prevent the disbarment of “that splendid man,” John B. Wellcome. 

Upon the foregoing undisputed facts and other facts which are controverted, a 
majority of the committee believe that Senator Clark’s agents, in their desperation 
on account of the decision of the court to take jurisdiction in the Wellcome case, 
attempted an improper approach to the judges of the court and to Attorney-General 
Nolan, which fact can not but have a certain influence in the consideration of the 
other acts of those agents in connection with the Senatorial election. A minority of 
the committee, however, believe that the transactions were res inter alios acta, and 
that the evidence does not sufficiently bring home to Senator Clark or his agents any 
improper attempt to influence the court or the attorney-general. 

PROMPT ACTION SUGGESTED. 

This briefest possible summary of the material facts in a case whose hearings have 
covered over three months, from January 5 to April 10, 1900, and whose record 
requires 2,677 pages, has extended to great length, and the committee will not pre¬ 
sent any general considerations in this report. The Senate should, as a duty to itself 
and to the country, demonstrate by its action in this case that seats in the United 
States Senate procured as Senator Clark’s has been procured can not be retained by 
the deliberate judgment of the Senate. 

The Senate also owes a duty to the people of Montana who, conscious of the bad 
repute into which the State had fallen by reason of vast expenditures of money in 
connection with its elections, manifested such a public sentiment that the legislature 
of 1895 passed a statute w r hich, if obeyed, would have redeemed the State from its 
bad name. For the direct and gross violations of that statute and the consequent 
discredit which continues to rest upon the State, Montana has a right to expect a 
prompt and decisive remedy from the action of the Senate upon the report of this 
committee. 

The committee report and unanimously recommend the adoption by the Senate of 
the following resolution: 

“ Resolved , That William A. Clark was not duly and legally elected to a seat in the 
Senate of the United States by the legislature of the State of Montana.” 


917 


WILLIAM A. CLARK, SENATOR FROM MONTANA. 

Appendix to Report. 

COPY OF STATEMENT FURNISHED BY SENATOR CLARK. 

[Testimony, page 1828.] 

Disbursements made by W. A. Clark for political purposes from August 1st, 1898, to 


September 1st, 1899. 

1898. 

August 12, paid C. W. Clark. $35,000.00 

October 17, “ C. W. Clark. 20 000.00 

October 20, “ Walter Cooper. 200.00 

November 5, “ L. O. Leonard. 250.00 

November 7, “ C. H. Padley. 250.00 

November 7, “ L. O. Leonard. 150.00 

November 9, “ J. H. Miles. 100.00 

November 9, “ T. Kilgallon. 200.00 

November 10, “ C. H. Padley. 200.00 

November 11, “ John Leary. 50.00 

November 23, “ C. W. Clark. 40,000.00 

November 23, “ A. J. Davidson. 5,000.00 

1899. 

January 6, paid C. C. Padley. 250.00 

February 4, “ Z. T. Cason. 500.00 

February 6, “ George Alderson. .250.00 

February 13, “ W. A. Clark & Bro., for C. W. C. 20, 592.05 

February 14, “ J. B. Wellcome. 15,000.00 

February 27, “ J. B. Wellcome. 90.00 

March 2, “ J. B. W. for Jno. Simpson. 400.00 

March 2, “ J. B. W., for photographs. 250. 00 

March 31, “ Walter Tallant, subscription. 1,000.00 

April 3, “ Walter Tallant, secretary. 500.00 

April 5, “ Simpson. 100.00 

April 25, “ Thomas Bryant. 100.00 

April 25, “ T. Kilgallon. 92.00 

May 3, “ Thos. Bryant. 100.00 

May 11, “ Thos. Bryant. 100.00 

May 19, “ W. M. Bickford, expense account. 581.85 

June 8, “ Thos. Bryant. 83.50 

July 31, • “ C. W. Clark. 950.00 


MONTANA ELECTION LAWS DEFINING AND PUNISHING “CRIMES AGAINST THE ELECTIVE 

FRANCHISE.” 

[Portions of the act of February 25,1895, being sections of the penal code of 1895.] 


“Sec. 83. No person shall, in order to aid or promote his own nomination as a 
candidate for public office, by a caucus, convention, or nomination paper, directly 
or indirectly, by himself or through another person, or by a political committee, 
give, pay, expend, or contribute, or promise to give, pay, expend, or contribute, any 
money or other valuable thing, except for personal expenses, as hereinafter provided. 

“Sec. 85. No person shall, in order to aid or promote his own election to a public 
office, directly or indirectly, by himself or through another person, give, pay, expend, 
or contribute any money or other valuable thing, except as hereinafter provided, 
for personal expenses and to a political committee. 

“Sec. 86. A candidate for nomination or for election to a public office, and any 
other person, may incur and pay, in connection with such nomination or election; 
his own personal expenses for traveling and purposes properly incidental to traveling, 
for writing, printing, and preparing for transmission, any letter, circular, or other 
publication, which is not issued at regular intervals, whereby he may make known 
his own position or views upon public or other questions; for stationery and postage, 
for telegraph, telephone and other public messenger service, and for other petty 
personal expenses; but all such expenses shall be limited to those which are directly 
incurred and paid by him, and by him alone; and every person shall be required to 
include such personal expenses in any statement which may be required of him 
under this act. And in no other case whatever shall the total sum paid, or agreed 
to be paid, by any candidate for his own personal expenses, as authorized by this 
































918 


SENATE ELECTION CASES. 


act, exceed the sum of one thousand dollars by any candidate for United States 
Senator, for Congress, or for any State office; nor shall such personal expenses 
exceed the sum of one hundred dollars by any candidate for a county or other office. 

“ Sec. 87. A person who is nominated as a candidate for public office by a caucus, 
convention, or nomination paper, and any person who shall, with his own assent, 
be voted for for public office, may make a voluntary payment of money or a volun¬ 
tary or unconditional promise of payment of money to a political committee as 
hereinafter defined for the promotion of the principles of the party which the com¬ 
mittee represents and for the general purposes of the committee. But in no case, by 
direct or indirect voluntary contribution, shall such total aggregate voluntary pay¬ 
ments exceed the sum of one thousand dollars by any candidate for the United States 
Senate, for Congress, or for State offices; nor shall such total aggregate voluntary 
payments exceed the sum of fifty dollars by any candidate for member of the State 
legislature, or one hundred dollars for any county or other office within the State, 
nor the sum of one hundred dollars by any candidate for any other office: Provided , 
That nothing in this act contained shall be construed to authorize or permit any can¬ 
didate to make such payment to more than one committee or person, acting other¬ 
wise than under the authority or in behalf of a political committee, in any county. 

“Sec. 88. The term “political committee,” under the provisions of this act, shall 
apply to every committee or combination of persons who shall aid or promote the 
success or defeat of any political party or principle in a public election, or shall aid 
or take part in the nomination, election, or defeat of a candidate for public office. 
Every such committee shall have a treasurer, who is a legal voter of the State, and 
shall cause to be kept by him detailed accounts of all money and the equivalent of 
money which shall be received by or promised to the committee, or any person act¬ 
ing under its authority or in its behalf, and of all such expenditures, disbursements, 
or promises of payment or disbursement which shall be made by the committee or 
any person acting under its authority or in its behalf; and no person acting under 
the authority or in the behalf of such committee shall receive any money or equiva¬ 
lent of money, or expend or disburse the same, until the committee has chosen a 
treasurer to keep its accounts, as herein provided. 

“ Sec. 89. A person who, acting under the authority or in behalf of a political com¬ 
mittee, shall receive any money or equivalent of money, or promise of the same, or 
shall expend any money or its equivalent, or shall incur any liability to pay money 
or its equivalent, shall at any time thereafter, on demand of the treasurer of such 
committee, and in any event within fourteen days after such receipt, expenditure, 
promise, or liability, give to such treasurer a detailed account of the same, with all 
vouchers required by this act; and such account shall constitute a part of the accounts 
and records of such treasurer. 

‘ * Sec. 90. The treasurer of every political committee which shall receive or expend 
or disburse any money, or equivalent of money, or incur any liability to pay money, 
in conrection with any election, if the aggregate of such receipts or of such expendi¬ 
tures, disbursements, and liabilities shall exceed ten dollars, shall, within thirty days 
after such election, file a statement setting forth all the receipts, expenditures, dis¬ 
bursements, and liabilities of the committee, and of every officer and other person 
acting under its authority or in its behalf. Such statement shall include the amount 
in each case received, the name of the person or committee from whom it was 
received, and the date of its receipt, and shall also include the amount of every 
expenditure or disbursement, the name of the person or committee to whom the 
expenditure or disbursement was made, and the date of every such expenditure or 
disbursement, and shall clearly state the purpose for which it was expended or dis¬ 
bursed. The statement shall also give the date and amount of every existing unful¬ 
filled promise or liability, both to and from such committee, remaining uncanceled 
and in force at the time the statement is made, with the name of the person or com¬ 
mittee to or from whom the unfulfilled promise or liability exists, and clearly state 
the purpose for which the promise or liability was made or incurred. 

“Sec. 91. Every person who, acting otherwise than under the authority or in 
behalf of a political committee having a treasurer, as hereinbefore provided, receives 
money or the equivalent of money, or expends or disburses or promises to expend or 
disburse money or its equivalent, to an amount exceeding ten dollars, for the pur¬ 
pose of aiding or promoting the success or defeat of a political party candidate or 
principle in a public election, or of aiding or taking partin the nomination, election, 
or defeat of a candidate for public office, shall file such statement as is herein 
required to be filed by a treasurer of a political committee in the county in which he 
is a legal voter, and shall be subject to all the requirements of this act, the same as a 
political committee and the treasurer thereof; but no person other than a legal voter 
of the State shall receive, expend, or disburse any money or equivalent of money, or 
promise to expend or disburse the same, for either of the purposes above named, 


WILLIAM A. CLARK, SENATOR FROM MONTANA. 919 

except for personal expenses, as herein provided, or under the authority or in behalf 
of a political committee. 

“Sec. 92. No person shall, directly or indirectly, by himself or through another 
person, make a payment or promise of payment to a political committee, or to an 
officer or other person acting under its authority or in its behalf, in any other than 
his own name; nor shall such committee, officer, or other person knowingly receive 
a payment or promise of payment, or enter or cause the same to be entered in the 
accounts or records of such committee, in any other name than that of the person by 
whom such payment or promise of payment is made. 

“ Sec. 94. The statement required by this act to be filed by the treasurer of a politi¬ 
cal committee shall be filed with the clerk of the county in which the treasurer is a 
legal voter, except that, in case a political committee has its headquarters in some 
other town or city than that in which the treasurer is a legal voter, the treasurer 
shall file the statement required of him with the clerk of the county in which such 
headquarters are maintained at the time of the election to which such statement 
relates. A statement relating to any other than a municipal election shall be filed 
in duplicate, and one copy shall be forthwith forwarded by the county clerk receiv¬ 
ing the same to the secretary of state, by whom it shall be placed on file. 

‘‘ Sec. 95. The supreme court and the district court shall have full equity powers 
to compel any person who fails to file a statement as required by this act, or who 
files a statement which does not conform to the provisions of this act in respect to 
sufficiency in detail, conformity to the truth, or otherwise, to comply with the pro¬ 
visions of this act by filing such a statement as is required, and shall compel such 
compliance upon the petition of any candidate voted for or of any five persons 
qualified to vote at the election on account of which the expenditures, or a part 
thereof, were or are alleged to have been made. No such petition shall be brought 
later than sixty days after such election against anyone who has filed his account 
within the thirty days required, excepting that a petition may be brought within 
thirty days of any payment which was not stated in the statement so filed. Pro¬ 
ceedings under this section shall be advanced upon the dockets of said courts, if 
requested by either party, so that they may be tried and decided with as little delay 
as possible. No petition brought under this act shall be withdrawn or discontinued 
without the consent of the attorney-general. 

“Sec. 96. No person called to testify in any proceedings under the preceding sec¬ 
tion shall be liable to criminal prosecution under this act or otherwise, for any mat¬ 
ters or causes in respect of which he shall be examined or to which his testimony 
shall relate, except to prosecution for perjury committed in such testimony. 

“Sec. 97. If any statements which are filed under this act shall apparently fail to 
be in conformity with the requirements thereof, it shall be the duty of the clerk with 
whom any such statement is filed forthwith to notify the person making the same of 
such failure, and to request him to amend and correct the same. 

“Sec. 98. Every person making a statement required by this act shall make oath 
that the same is in all respects correct and true, to the best of his knowledge and 
belief. 

“Sec. 99. All statements which are filed in accordance with the provisions of this 
act shall be preserved for not less than fifteen months from the time o f the election 
to which they relate, and shall, during that period, be open to public inspection. 

“Sec. 102. Every payment in respect of any expense incurred, which is to be 
accounted for under this act, shall be vouched for by a receipted bill stating the par¬ 
ticulars of expenses, and every voucher, receipt, or account required by this act shall 
be preserved for at least six months from the election to which it relates. 

“Sec. 103. This act shall apply to all public elections, whether for officers or upon 
questions to be submitted to the people, except elections of township officers, and 
shall apply to caucuses and conventions for the nomination of candidates to be voted 
for at such elections, and to nomination papers for the nomination of candidates to be 
voted for at such elections, except that Ss. 83, 85, and 92 of this act shall not apply 
to the proprietors and publishers of publications issued at regular intervals in respect 
to the ordinary and regular conduct of business as such proprietors and publishers. 

“Sec. 104. Whoever shall violate any of the provisions of Ss. 83, 84, 85, 88, 89, 
93, 94, 98, 99, and 102 of this act shall be punished by a fine not exceeding one 
thousand dollars, and by imprisonment in the county jail for not more than three 
months. Whoever shall violate any of the provisions of Ss. 90, 91, and 92 of this act 
shall be punished by a fine not exceeding one thousand dollars and by imprison¬ 
ment in the county jail for not more than three months.” 


920 


SENATE ELECTION CASES. 


VIEWS OF THE MINORITY. 

Views of two members of the Committee on Privileges and Elections in the case of W. A. 

Clark , now sitting as a Senator from Montana. 

We agreed and still agree to the resolution reported by the committee through its 
chairman. That resolution was adopted by the committee itself. But the report is 
merely the writing of the chairman with the aid of one other member, and never 
was submitted to any meeting of the committee, and therefore can not be considered 
as the words of the committee. 

It is true that we saw and read that report, by the grace of the chairman, and 
dissented from many parts thereof, and gave the chairman notice of such dissent, 
when the chairman informed us that we were not bound by the wording of the report. 

It was our misfortune not to agree with a majority of the committee in the general 
conduct of the investigation of this case. We believed that in this important inquiry 
the committee was bound by, and ought to act on, the ordinary rules of evidence. 

And in this contention we merely followed another member of the committee who 
is one of our great lawyers and who is fresh from a long service as a nisi prius judge 
under Federal authority. That great lawyer, in gentle but forceful language, admon¬ 
ished us of the great danger of disregarding the common rules of evidence established 
by great judges through the centuries and known to all lawyers. But it was said the 
committee was not a court and had a right to receive “hearsay” evidence in order to 
get on the track of better evidence. And we did receive it constantly, and in great 
volumes. 

We tried merely to discharge our duties as members of this committee and as 
judges in this most important cause. The chairman, however, left the committee 
little to do. The committee made an order at the beginning appointing the chair¬ 
man and another member to determine what witnesses should be summoned, and 
the two did determine that matter at first, but the chairman kindly relieved the 
other members of that labor and determined that matter for the committee. 

This report of the chairman declares that, as to many matters stated separately, 
some members of the committee think or believe one way and some think or believe 
another way. So we preferred to state our individual findings for ourselves. 

It is our opinion from the evidence that the friends of Senator Clark illegally and 
improperly used large amounts of money and thereby caused the election, and that 
this election is not valid, but under the law of the land is void, and therefore we 
agreed to the resolution reported by the chairman. 

We consider it our duty to call attention to the general features of this case. There 
were in Montana two factions in the Democratic party. Marcus Daly was considered 
the head of one faction and W. A. Clark was considered the head of the other. 

In the summer of 1898 there was a meeting of “Clark men,” as they were called, 
to consider political matters, concerning the general election to be held in November 
of that year. 

Mr. A. J. Campbell w r as invited and attended that meeting, which was held pri¬ 
vately. It was agreed at that meeting to try to elect a legislature of Democrats of 
their own faction of the party, or not of the Daly faction. And W. A. Clark agreed 
to pay the expenses. And large sums of money were sent out, by the three men 
who acted as a committee, to the various counties. A Democratic convention was held 
in September. And at that convention A. J. Campbell was chosen its president, with 
the aid of all of the “ Clark men.” And at the same convention A. J. Campbell w r as 
nominated for Congress, with the same aid; and in November, 1898, he was elected 
to Congress with the same aid. So, to the extent named, Mr. Campbell got the bene¬ 
fit of that private meeting of w T hich he was a member, and the benefit of the money 
sent out by the committee to the executive committees in various counties. 

Mr. Campbell was a well-known opponent of the Daly faction prior to and in 1898. 

The witness Whiteside had been employed by one of Marcus Daly’s corporations 
as a contractor to build a large house prior to 1898. A. J. Campbell was employed, 
for the first time, in the summer of 1898 to do one piece of work as a lawyer for one 
of Daly’s corporations. 

The evidence tends to show that Whiteside was unfriendly to W. A. Clark, and 
that he made a threat to “explode a bomb” if Clark became a candidate for the Sen¬ 
ate; and that about the same day Marcus Daly, in New York, made a threat “ to run 
W. A. Clark and his family out of the State of Montana.” 

On or about the 15th day of December, 1898, A. J. Campbell and Whiteside met. 
Whiteside called on Mr. Campbell in his office to obtain the advice of Mr. Camp¬ 
bell, and informed Mr. Campbell of his plan to act with Mr. Clark’s friends ami 
secure Mr. Clark’s confidence and then betray and destroy him. Mr. Campbell had 
no difficulty in advising Whiteside as to how he could best betray and destroy his 


WILLIAM A. CLARK, SENATOR FROM MONTANA. 


921 


friend, W. A. Clark. That interview was private, and all we know of it is what the 
parties have consented to give us; but we learn of them that Mr. Campbell gave to 
Whiteside advice full of grim, blunt wisdom. 

After Mr. Campbell had heard the plan to entrap and betray his friend, he told 
Whiteside, in substance, “Do not rely on your own evidence to prove the charges.” 
Thus Campbell and Whiteside became united in a common cause in December, 1898. 
And from that time Whiteside had the benefit of Campbell’s advice. And White- 
side, if you credit his account of himself, acted well and naturally the part of spy 
and traitor and did “explode a bomb.” 

After the legislature adjourned, Mr. Campbell, with Marcus Daly’s money, went 
into the business of buying newspapers and hiring editors, and set them to work, 
lie also became actively engaged in the business of hiring detectives with Daly’s 
money. Among other hard cases he employed one Benjamin Hill and set him to 
hunting up evidence against his friend. And Mr. Campbell gives a graphic account 
of how Hill brought to his office a sealed letter from Bickford to Roote, and how he 
caused II ill to open the letter .for Campbell to read. And, after reading, it was inter¬ 
esting to hear Mr. Campbell describe how the letter was carefully resealed and sent 
on by Hill to its destination. 

Mr. Campbell sent his man Hill, with his clerk, Mr. Little, to get certain affidavits. 
The affidavits were obtained, and the men who made them received about $100 each 
for their pay from Mr. Little and about $150 more for each out of checks drawn by 
Little on Campbell and paid by him out of Daly’s money. Mr. Campbell stated this 
matter composedly, and, though he did not justify what was done, as he did the 
opening and reading of a sealed letter, he stated that he assumed the responsibility 
for the transaction. The man Hill, for hunting up witnesses and buying and making 
affidavits, received from Mr. Campbell about $1,500 out of Daly’s money, according 
to the evidence. 

Mr. Campbell became Daly’s agent to disburse money without limit as to amount, 
and he disbursed it in that way. And in 1899 Mr. Campbell was employed by a 
corporation controlled by Mr. Daly at a salary of $5,000 per annum. 

When last heard from Mr. Campbell had disbursed about $40,000 of Daly’s mortey 
in this case, and had incurred liabilities for fees to eminent counsel, amounts not 
named, and still had power to go on spending without limit as to amount. He con¬ 
ducted this case as leading counsel, and became also one of the principal witnesses, 
but other counsel made the argument. 

Mr. Campbell employed many detectives or spies, and paid them most liberally 
with Daly’s money; and he wrote divers letters to his professional detective, L. D. 
McLean. In one of them he says: 

“It is hinted this morning that there were some matters being investigated by the 
grand jury which might implicate myself, Fred Whiteside, or perhaps W. A. Clark, 
of Virginia City. It is a mere rumor, and I don’t believe there is anything in it at 
all. It may be it has something to do* with elections last fall, which will probably 
not implicate me, but might implicate some of the so-called Daly people. * * * 
Perhaps you had better get a list of the grand jury and find some fellow that you 
can ‘jolly’ a little.” 

Attorney-General Nolan claimed and* received the combined assistance o! Messrs. 
Campbell and Whiteside. He attended before the grand jury and examined wit¬ 
nesses concerning this case and took notes of the testimony in shorthand and after¬ 
wards wrote out his notes—not in the words of the witnesses, but the substance in 
narrative form—and afterwards he attached this so-called evidence before the grand 
jury to the information which he filed in the supreme court against Wellcome; and 
to aid Campbell and Whiteside in their search after evidence, the attorney-general 
wrote a formal letter to Mr. A. J. Campbell promising immunity from prosecution 
and the governor’s pardon to any and all witnesses who would testify about bribery 
of legislators. 

This so-called evidence before the grand jury was much used in this case, and 
Attorney-General Nolan was examined as a witness before the committee as to mat¬ 
ters relevant and irrelevant. He could not be induced to see the slightest impropriety 
in his disclosure of the secrets of the grand jury, or in this wholesale promise of 
pardons specially given for the use of Mr. Campbell in the work in which he was 
then engaged. This attorney-general came to Washington, took an active part in 
the prosecution and in suggesting witnesses, and on the witness stand could not 
conceal his bias. 

A large part of the evidence taken by the committee and submitted to the Senate 
is irrelevant to the matter of inquiry. Take as a sample the matter of what is called 
the attempt to bribe the supreme court and the attorney-general. This transaction, 
so far as we are informed, occurred six or seven months after the Senatorial election; 
no fact proved connects Mr. Clark with any part of that transaction. Dr. Treacy had 


922 


SENATE ELECTION CASES. 


no sort of connection, directly or indirectly, with Mr. Clark; and if he had, there 
was no connection between the election in January and the supreme judges in the 
fall of that year. 

You can not lawfully charge a man with one crime and prove that he committed 
that crime by proving that he did commit another crime. The Constitution, pro¬ 
vides that the accused must “be informed of the nature and cause of the accusation.” 
No mention of the judges of the supreme court of Montana was made in the charges 
against Mr. Clark. All of that evidence was nothing more than what lawyers call 
“ coloring matter.” And it was admitted against the protest of the Senator from 
Maryland and others. 

And in the conduct of this case much other mere “ coloring matter” was received 
as evidence. 

In the report made for the committee there are several curious statements of a part 
of the evidence as to the thing stated. For example, it is stated that Senator Clark, 
in June, 1899, destroyed the checks which he had drawn on his bank. But the 
report fails to state that for years past it was his habit to destroy his checks when 
his account was rendered by the bank and examined. And the report failed to state 
that the committee had the bank account of Mr. Clark during all the time in which 
it was charged that money had been illegally used. 

And there is another feature of that report which should be noticed. Statements 
are made as facts which are based only on the testimony of a witness of doubtful 
credit, and that testimony plainly contradicted. 

The only proposition for which we contend is, that this is a judicial case, and a 
committee of the Senate ought to consider and report it as judges. 

E. W. Pettus. 

W. A. Harris. 

(See Cong. Rec., vol. 34, pp. 3429-3435.) 

The report of the Committee on Privileges and Elections as hereinbefore set forth 
was called up in the Senate May 3, 1900 (Cong. Rec., vol. 33, pp. 5021, 5022), and 
was the subject of remarks by Mr. Clark May 15, 1900 (Cong. Rec., vol. 33, pp. 5531- 
5536). At the conclusion of his remarks Mr. Clark submitted a copy of a letter 
written by him and addressed to the chief executive of the State of Montana, resign¬ 
ing his seat in the Senate. 

(Cong. Rec., vol. 33, p. 5536.) 

Tuesday, June 5, 1900. 

Mr. Chandler, from the majority of the Committee on Privileges and Elections, 
submitted a supplemental report to accompany the resolution reported from the 
committee, declaring that William A. Clark was not duly and legally elected to a 
seat in the Senate of the United States. 

The report was ordered to be printed under the rule. 

(Cong. Rec., vol. 33, p. 6698.) 

SUPPLEMENTAL REPORT OF THE COMMITTEE. 

Supplemental report (to accompany Senate Res. No. 284). 

The Committee on Privileges and Elections on April 23,1900, made a report to the 
Senate (No. 1052) unanimously recommending the adoption by the Senate of the 
following resolution: 

“ Resolved, That William A. Clark was not duly and legally elected to a seat in the 
Senate of the United States by the legislature of the State of Montana.” 

The committee also reported the findings and reasons leading to their recommen¬ 
dation. Two members of the committee submitted on the same day certain views 
of the minority which, while agreeing to the resolution reported by the committee, 
condemned some alleged methods adopted by the committee and criticised some 
alleged acts of the chairman. These views of the minority were not seen by the 
majority until after the report was printed, but the text of the principal report had 
been seen by the two members of the committee and some changes had been made 
therein m deference to their suggestions.. On the 15th day of May Senator Clark 
addressed the Senate on a question of privilege, and, after making a lengthy state¬ 
ment, informed the Senate that on the 11th day of May he had notified the governor 
of Montana that he resigned as Senator; and after making his address Mr. Clark 
retired from the Senate. His statement contained various criticisms of the report 
which had been made by the committee. 

Upon an examination of the criticisms made by Senator Clark and those made in 


WILLIAM A. CLARK, SENATOR FROM MONTANA. 923 

the additional views of the two members, a majority of the committee make a sup¬ 
plemental report, as follows: 

The distinct criticisms made by Mr. Clark on May 15 of the report of the com¬ 
mittee are not serious in their character, and it is fortunate that they were made, 
because they may be taken as being all the criticisms which the party most at interest 
can claim can justly be made. The correctness of all other statements made by the 
committee not criticised by Senator Clark may be taken to be admitted by him. All 
his statements will not be now reviewed, but some of them should be noticed by the 
committee. 

He complains that the method of procedure of the committee was unfair and non- 
judicial, and that testimony was received contrary to the established rules of evi¬ 
dence, hearsay and irrelevant testimony; and that the case was like the Dreyfus 
case, where there was a constant presumption of guilt instead of innocence. 

The answers to this complaint are simple. 

(1) That no such testimony was received except after deliberate decision by the 
committee for the purpose of ascertaining what additional witnesses it might be 
necessary to summon, as stated by the chairman on page 432 of the testimony, as 
follows: 

“The Chairman. It would only be admissible as laying the foundation for send¬ 
ing for other witnesses.” 

(2) That no single finding of the committee has been based upon hearsay 
testimony. 

The finding of the whole committee that the election was null and void was based 
upon the admitted or undisputed facts with their attendant circumstances, and no 
facts are recited in the report of the committee beyond the admitted and undis¬ 
puted facts except in those cases where any denial of those facts is distinctly recited. 

The methods of procedure were in no case unfair, but were such as ordinarily pre¬ 
vail in investigations like this. 

The presumption of innocence was at no time disregarded, and findings unfavor¬ 
able to Mr. Clark were made as a court or jury would have made them upon a full 
and fair consideration of all the facts in the case. 

He denies the conclusion of the committee that a sufficient number of legislators 
were corrupted to change the result of the election. 

This criticism is merely the complaint that the committee differed in opinion from 
him and his eminent counsel and made findings contrary to their desires. 

He complains that stress was laid by the committee upon the comparative financial 
condition of two or three legislators before and after the Senatorial contest, and 
asserts that their explanations of the circumstances would have been received, the 
presumption being that if their financial condition was better that result happened 
honestly. 

The answer to this complaint is that while such is the ordinary presumption, the 
many facts in this case overcome that presumption, in the opinion of the committee, 
and that there were not, as Mr. Clark now asserts, satisfactory explanations of the 
circumstances. 

Speaking particularly of the facts which the committee claim are “admitted or 
undisputed, ’ ’ he refers to the statement made by the committee that he had been 
constantly a candidate for office. He does not deny the fact stated by the commit¬ 
tee, but proceeds to distinctly admit it. The statement was not made as the “ lead¬ 
ing part” of the third subdivision of the committee’s report, but only as preliminary 
to the statement in such third subdivision that Senator Clark, being a candidate for 
Senator, organized a Clark committee and gave that committee unlimited authority 
to make political expenditures from money which he agreed to furnish and which 
was estimated at not less than $110,000. 

hie continues to claim that he was not a candidate for Senator until December, 
1898, and defies anyone to show the contrary. The contrary is easily shown by 
statements of his own committee. Mr. Hauser states that he was a candidate and 
Mr. Davidson states that he was a candidate. The whole sum and substance of the 
movement of himself and friends were only to make Mr. Clark a United States 
Senator, and his money was furnished and expended for that purpose. 

He complains that testimony was excluded concerning the character of Mr. Daly’s 
efforts to defeat him when he was a candidate for Senator in 1893, and he read in the 
Senate a long ex parte affidavit of George E McGrath. It appears that this affidavit 
was made February 19, 1900, concerning transactions which Mr. McGrath said he 
knew about in 1893, and which were never previously put on paper. The committee 
properly declined to retry the contest of 1893. 

He also complains that testimony was excluded of Folk and wife as to an attempt 
by Mr. Whiteside to bribe Mr. Folk with an offer af $1,000 to give him access to the 
ballots connected with Mr. Whiteside’s own election to the State senate. The com- 


924 


SENATE ELECTION CASES. 


mittee, on due consideration, twice decided to reject this evidence as raising a collat¬ 
eral issue, the trial and decision of which might lead to an interminable investiga¬ 
tion. It may be added, however, that the chairman of the committee on both occa¬ 
sions was in favor of receiving the evidence, however much the incidental inquiry 
might delay the case. 

He denies the averment that he early began negotiations with Mr. Hobson, the 
Republican leader, saying of this averment: “ Not one statement of which is sustained 
by the testimony.” 

The statement of the committee was based partly upon the fact that the so-called 
“Whiteside exposure” took place January 10, and that on January 15 Senator Clark 
wrote a letter to Senator Hobson declaring himself to be a protectionist, and there 
was no dispute that this letter was written in order to secure through Senator Hobson 
Republican votes for Mr. Clark for Senator. 

lie also denies that he bought the $48,000 of Mr. Powers’s stock in Mr. Hobson’s 
bank on account of the Senatorial controversy. By his own testimony (p. 1891) it 
appears that he bought the stock for the following reason: 

‘ ‘ Mr. Campbell. Where is the stock now? 

“Senator Clark. It is in my bank now, in the bank of W. A. Clark & Co., Butte, 
Mont. I w r as going to say, if the committee wfill allow me, that I would like to give, 
briefly, a little narrative of that transaction. 

“After the election w r as over Senator Phillips spoke to me about the bank stock, the 
stock owned by Mr. Powers in the Fergus County Bank, and said that Mr. Powers 
w'as somewhat indignant as to the action of Mr. Hobson in voting for me, and that 
he might give him trouble in some way. He was a little concerned about it. I 
asked him some questions about it, what stock Mr. Powers owned, and what he 
thought about the value of the stock. He said he was certain that the stock w r as 
first-class and w r ould return good dividends. So I said, ‘If it is a good investment, 
if I am assured that it is a good investment, and Mr. Powers should give any trouble 
to Mr. Hobson about this stock, I would be very willing to buy it,’ as I was seeking 
good investments. 

“I went, I think I went, to Mr. Hobson, or met him. I am not sure that I went 
for that purpose. 

“Mr. Campbell. You went to whom? To Mr. Hobson? 

‘ ‘ Senator Clark. Mr. Hobson. I spoke to Mr. Hobson about the stock and men¬ 
tioned something about the conversation with Mr. Phillips, and asked him about the 
stock, and if there was any danger of his getting into trouble with his partner, Mr. 
Powers, who was interested with him. He said he did not know that there w T as, 
but there might be; it might be possible that something might arise that would put 
him in bad shape, so far as his financial interest was concerned there. I think he 
said something about his telling him to sell or to buy his stock. That conversation 
is not very clear in my mind, but it was something of that nature.” 

As to the statements of Senator Clark that the result of the admission of perjured 
testimony w r as ‘ ‘ damaging in the extreme ’ ’ to his case, the attention of the Senate 
should be distinctly called to the statement made by the committee on page 13, that 
all the witnesses whose conduct has occasioned comment had been originally 
employed by Senator Clark, or his committee, or his friends. 

He complains of the committee for giving any weight to those parts of the Montana 
laws against bribery, which limit expenditures by candidates and require candidates 
and their committees to make returns. 

The expressed view of the committee was that the disobedience of those laws, 
which rendered Mr. Clark and his committee liable to criminal prosecutions, furnished 
“strong additional reasons for believing the other evidence w r hich seems to them to 
establish the corruption charged.” Those laws were specially made by the legisla¬ 
ture of Montana on February 25, 1895, in order to redeem the State from its bad con¬ 
dition and repute, and should not have been defied by Mr. Clark, Mr. McDermott, 
Mr. Davidson, and his other assistants. 

He states that no proof was adduced that he had any knowdedge of corruption on 
the part of his agents, and that no charge of complicity had been made in the report. 
His language in his letter of May 11 to the governor of Montana is as follows: 

“None of the charges affecting my personal honor or which allege that I had per¬ 
sonally been guilty of corrupt practices have been sustained by the finding of the 
committee. ’ ’ 

Against this assertion there should be placed the explicit and unequivocal state¬ 
ment of the committee in their report, on page 12, in the following words: 

“It is also a reasonable conclusion upon the whole case that Senator Clark is fairly 
to be charged with knowledge of the acts done in his behalf by his committee and 
his agents conducting his canvass. He arrived in Helena from “ Butte on January 4, 
and was in constant conference with his committee and agents. 


WILLIAM A CLARK, SENATOR FROM MONTANA. 


925 


In view of the issue thus made, it is important to reexamine some of the facts 
showing exactly wliat Senator Clark’s personal connection has been with the circum¬ 
stances which have resulted in his resignation from the Senate. 

It is not intended to reiterate at any length facts stated in the report to prove the 
correctness of what is asserted in the foregoing extract. 

The preliminary arrangements for so influencing the nominations and elections to 
the legislature that he could be chosen Senator were made by Mr. Clark personally, 
as appears .under the third head of the report. Nothing since the hearing closed has 
tended to impair the facts stated concerning Senator Clark’s own personal connec¬ 
tion with the course of his canvass for election as Senator. 

In the case of Mr. E. C. Day,.recited under the fourteenth head of the report, it 
appears that the transactions originated with Mr. Clark himself, who, on February 
13, in writing, personally directed that the $5,000 should be given to Mr. Day for 
his services in the legislature and as a retainer as counsel in the future. Mr. Clark 
says that he wishes to correct a misstatement. He says, 1 ‘ I never wrote a letter 
couched in such language,” but he then proceeds to say that the amount was paid to 
Mr. Day as a testimonial of friendship. The gloss which Mr. Clark now tries to put 
upon a very serious transaction of his own is not consistent with the language of Mr. 
Day, quoted in the report. In opposition to Mr. Clark’s statement in the Senate may 
be put his testimony before the committee as follows: 

“Mr. Campbell. Mr. Day voted for you during the canvass? 

“Senator Clark. Mr. Day voted for me. 

“Mr. Campbell. Yes; he was one of the leaders of your force? 

“ Senator Clark. Yes, sir. 

“ Mr. Campbell. And was the recognized leader for what was called the Clark 
faction of the Democratic party? 

• “Senator Clark. He ran as speaker of the house of representatives, I believe, 
representing our forces. 

“Mr. Campbell. And upon the floor of the house he was the recognized leader for 
the Clark forces, was he not? 

“Senator Clark. I am not sure of that. I think he was. I never was in the house 
of representatives or in the joint assembly. 

‘ ‘ Mr. Campbell. Do you not know, as a matter of fact, that he was the man who 
made the motion to take a second ballot upon the day on which your election 
occurred? 

“Senator Clark. Yes; I believe he was. I think he was recognized as the leader 
of the Clark forces in the house of representatives. 

“Mr. Campbell. And four days after your election you made him a present of 
$5,000? 

“Senator Clark. Yes, sir. 

“Mr. Campbell. What was that for? 

“Senator Clark. It was in consideration of my friendship for Mr. Day, and for 
the work performed by him in trying to organize the legislature—to be elected 
speaker and in order to control our forces, in which, however, we failed. I recog¬ 
nized that he was worthy of this consideration. We expected to have, from the talk 
that was going around, more or less trouble or litigation, and Mr. Day was to take 
charge of everything of that kind, and has done so.” 

In the case of Mr. McLaughlin, stated under the sixth head of the report, Mr. 
Clark says of the statement of the committee that “In December, 1898, Senator 
Clark began negotiations with one H. W. McLaughlin, a member of the legislature, 
for the purchase of his wood lots and sawmills.” “This statement, Mr. President, 
is not correct;” and he proceeds to justify this charge by stating that the negotia¬ 
tions were begun by Mr. Bickford and not by himself in the month of September 
before Mr. McLaughlin was ever nominated for the legislature. The fact was that 
Mr. McLaughlin and Mr. Bickford did enter into preliminary negotiations, without 
doubt growing out of Mr. McLaughlin’s expected nomination and election to the 
legislature. The committee regarded all the excuses given for the purchase by Mr. 
Clark directly and personally of all Mr. McLaughlin’s property at an extravagant 
price as a very clear case of improper arrangement with a member of the legislature. 
Although Mr. Clark calls the McLaughlin incident a “weak case” and a “flimsy 
expedient,” the facts are convincing as to the character and purpose of the so-called 
“purely business enterprise.” 

As to the Woods case, stated under the seventh head of the report, Mr. Clark says 
that the statement of the report that he knew of Mr. Bickford’s attempt to purchase 
the indebtedness which Woods owed is absolutely unfounded, and that he never 
heard of the transaction until it was disclosed in the testimony during the investiga¬ 
tion. It is true that the scheme for controlling Mr. Woods by buying up his indebt¬ 
edness originated with Mr. Bickford and that Mr. Bickford on December 31, 1898, 


926 


SENATE ELECTION CASES. 


went to Missoula with five $1,000 bills and four $500 bills, which he had obtained from 
C. W. Clark for that purpose. But it also appears that Senator Clark in response to 
letters from Dr. Ector took up the case of Mr. Woods and came to comprehend what 
was intended. Mr. Ector’s letter to Mr. Clark of December 7, 1898, and Mr. Clark’s 
letters to Mr. Ector of December 10, 1898, and January 4, 1899, leave little doubt 
that Senator Clark knew what Mr. Bickford was engaged in doing, especially in view 
of the fact that Mr. Ector’s letters of November 17, 1898. and January 3, 1899, are 
not produced. 

In the case of Mr. B. F. Fine, stated under the twelfth head of the report, it is not 
denied that the arrangement with him to work for Mr. Clark, for which he received 
$5,000 for nominal or useless services, was made by Mr. Clark personally during the 
session of the legislature after Mr. Clark’s election. The criticism made by Senator 
Clark is “that there was no agreement, but merely a statement made by me to him 
after my election.” This different form of putting the case is not material. The 
committee did not claim that Mr. Fine would not have voted for Mr. Clark had it 
not been for this arrangement, but that it was like the case of Mr. E. C. Day, a pay¬ 
ment afterwards for services as a member of the legislature under circumstances 
which at least aroused suspicion that there was an understanding to that effect before 
the election. 

In the case of Mr. Z. T. Cason, who gives an account of Mr. Bickford’s efforts to 
induce him to endeavor to corrupt Mr. Marcyes, it appears from Mr. Clark’s own 
testimony that he had interviews with Mr. Cason, and at last, on the 3d day of Feb¬ 
ruary, 1899, sent to Mr. Cason $500 in a letter giving thanks for his services. The 
personal activity of Senator Clark in conducting the details of his canvass is thus very 
clearly indicated. The testimony of Mr. Cason was not credited by the committee 
because he wrote a recantation at the instigation of Mr. Jesse B. Root, Mr. Well- 
come’s law partner, upon receiving $1,500 from Mr. Root for copying and signing the 
recantation and going into hiding in Baker City, Oreg., as stated on page 13 of the 
report. But Senator Clark’s own testimony as to his relation with Cason and his 
letter to him inclosing the $500 stand as undisputed facts. 

As to the approach t'o Mr. Justice William H. Hunt, of the supreme court of Mon¬ 
tana, stated on page 14* of the report, while it does not directly appear that Senator 
Clark had knowledge of this approach made by Dr. Treacy, who also in a similar 
way approached Attorney-General Nolan, yet there stands against Senator Clark the 
significant fact, proved by Mr. Clark’s letter to Rev. A. B. Martin, that he urged 
Mr. Martin to approach Chief Justice Brantley in order to prevent the disbarment 
of “that splendid man, John B. Wellcome.” This admitted fact certainly justifies a 
strong suspicion that the other attempts to reach the court made by Dr. Treacy, 
under the circumstances narrated in the report, were known to Senator Clark. 

Reference will now be made in this report to the criticisms of the chairman made 
by the minority of the committee in their addendum to the report, by annexing the 
following memorandum by the chairman. 

MEMORANDUM BY THE CHAIRMAN. 

The statement that the chairman left the committee little to do is unjust. The 
chairman did nothing except what such an officer is expected to do. Every impor¬ 
tant ruling was made either by decision of the committee or by the chairman in the 
first instance after an order of the committee was made prescribing that course of 
proceeding, with the understanding that any member of the committee might dis¬ 
sent on any point and have it decided by the vote of the committee. 

The minority say that the committee made an order at the beginning appointing 
the chairman and another member to determine what witnesses should be summoned 
and it was determined that way at first, but the chairman kindly relieved the other 
member of that labor and determined that matter for the committee. The Senator 
from Alabama and the chairman were appointed to consider in the first instance 
applications for subpoenas for witnesses. Forty-four witnesses were summoned and 
heard for the prosecution; 41 witnesses summoned and heard for the defense, and 
7 witnesses summoned directly by the committee. As to witnesses for the prose¬ 
cution and defense, the lists which were submitted in the first instance by the two 
sides were deliberately considered by the chairman, and the Senator from Alabama, 
and every question arising was passed upon. 

Those lists covered three-quarters of the witnesses summoned. Subsequently in 
some few cases the chairman summoned witnesses where previous decisions to sum¬ 
mon had established a principle which covered the new requests, and there the for¬ 
mality of consulting the Senator from Alabama may have been omitted. Such cases 
probably did not exceed a dozen. Various witnesses are upon the list who came to 


WILLIAM A. CLARK, SENATOR FROM MONTANA. 


927 


Washington without being summoned, and were called to the stand by the respective 
parties. The question of summoning witnesses to prove the attempt upon the supreme 
court of Montana was decided by the w r hole committee; and it may be further and 
finally added that, so far as Senator Clark was concerned, there was no refusal to 
summon any witness whom his counsel insisted upon obtaining. 

While the chairman was sick at his house he received an important communica¬ 
tion, which seemed to him to require the instantaneous summoning of two witnesses. 
For those witnesses he telegraphed immediately, and at once sent to the committee 
a report of what he had done, in the following words, on the 3d of March, 1900: 

“There are two more witnesses whom I have taken the responsibility of summon¬ 
ing, and do not wish to state the facts and reasons until I am sure that I shall get 
them here. The principal witness claims to be sick.” 

The circumstances connected with the summoning of this principal witness are 
detailed in memorandum which is in the hands of the committee. His name is 
J. A. Largent, of Greatfalls, Mont. 

Another statement, on page 24, of the two Senators is that the report fails to state 
in connection with the destruction by Senator Clark, in June, 1889, of his checks, 
that it was his habit to destroy such checks. The two Senators are mistaken. The 
report distinctly states that fact on page 11, where it says that the destruction of the 
checks was “in accordance with what he testified was his custom.” 

Another statement of the two Senators is that “statements are made as facts-which 
are based only on the testimony of a witness of doubtful credit, and that testimony 
plainly contradicted.” This is an error. The report from beginning to end shows 
no statement made as a fact unless it is an undisputed fact, and no conclusion appears 
to be reached by the majority of the committee on contradicted testimony without 
the contradiction being plainly noted; and one important statement appearing on 
page 8 should be constantly borne in mind, that, laying aside substantially all the 
controverted facts, ‘ ‘ there would still remain sufficient evidence in the case to lead 
the committee to find, as they do, that Mr. Clark’s election is void. 

WM. E. CHANDLER. 

At the second session of the Fifty-sixth Congress Mr. Chandler submitted a reso¬ 
lution in the Senate on Saturday, the 2d day of March, 1901, declaring Mr. Clark to 
be personally responsible for the offenses set forth in the report of the Committee on 
Privileges and Elections, submitted April 23, 1900. 

(Cong. Rec., vol. 34, pp. 3420, 3421.) 

Upon this resolution Mr. Chandler addressed the Senate March 2, 1901, his 
remarks being found in the Congressional Record, volume 34, pages 3421 to 3435. 



































SENATE ELECTION CASES. 

III. 


EXPULSION OF SENATORS. 

[Fifth Congress—First session.] 

WILLIAM BLOUNT, 


Senator from Tennessee from December 6, 1700, to July 8, 1700. 

Mr. Blount was expelled from the Senate on July 8, 1797, as “having been guilty of a high misde¬ 
meanor.” An account of his impeachment, which was a proceeding distinct from the expulsion 
case here given, is found in the Annals of Congress, 5th Cong., 1st and 2d sess., vol. 1,1797-’98, within 
pages 39 to 45, and Annals of Congress, 2d and 3d sess.. vol. 2, 1798-99, pages 2245 to 2416. The de¬ 
cision in the impeachment trial was that “the court ought not to hold jurisdiction of the said im¬ 
peachment, and that the said impeachment is dismissed,” the grounds on which the decision rested 
not being given. 

The account of the expulsion case here given consists of a transcript of the proceedings of the 
Senate relating to it from the Annals of Congress, 5th Cong., 1st and 2d sess., vol. 1, 1797-’98, within 
pages 33 to 45. 


Monday, July 3, 1797. 

The following message was received from the President of the United States: 

Gentlemen of the Senate and House of Representatives: 

The whole of the intelligence which has for some time past been received from 
abroad, the correspondence between this Government and the ministers of the bel¬ 
ligerent powers residing here, and the advices from the officers of the United States, 
civil and military, upon the frontiers, all conspire to show, in a very strong light, 
the critical situation of our country. That Congress might be enabled to form a 
more perfect judgment of it, and of the measures necessary to be taken, 1 have di¬ 
rected the proper officers to prepare such collections of extracts from the public cor¬ 
respondence as might afford the clearest information. The reports made to me, from 
the Secretary of State and the Secretary of War, with a collection of documents 
from each of them, are now communicated to both Houses of Congress. I have de¬ 
sired that the message, reports, and documents may be considered as confidential, 
merely that the members of both Houses of Congress may be apprised of their con¬ 
tents before they should be made public. As soon as the two Houses shall have 
heard them, I shall submit to their discretion the publication of the whole or any 
such parts of them as they shall judge necessary or expedient for the public good. 

JOHN ADAMS. 

United States, July 3, 1797. 

The message and papers w r ere read. 

On motion, the copy of a letter communicated with the message was again read, in 
the hearing of Mr. Blount, who was absent w r hen itw r as read the first time; and who, 
on being requested to declare whether he was the author of this letter or not, ob¬ 
served that he wrote a letter to Cary, but was unable to say whether the copy w r as a 
correct one or not without recurrence to his papers; and desired that he might have 
until to-morrow to reply. 

Tuesday, July 4, 1797. 

Mr. Cocke laid before the Senate a letter addressed to him, signed William Blount, 
purporting that it was necessary for him, the said William Blount, to have further 
time for recurrence to his papers and other evidence to remove suspicion. 

Resolved, That so much of the message from the President of the United States, of 
the 3d instant, and the papers accompanying the same, as relates to a letter purport- 

929 


S. Doc. 11-59 



930 


SENATE ELECTION CASES. 


ing to have been written by William Blount, a Senator from the State of Tennessee, 
be referred to a select committee, to consider and report what, in tlieir opinion, it is 
proper for the Senate to do thereon; and that the said committee have power to send 
for persons, papers, and records relating to the subject committed to them, and that 
Messrs. Ross, Stockton, Henry, Sedgwick, and Read he the committee. 

Ordered , That the Senate be, for the present, under an injunction of secrecy on the 
papers referred to in the above-mentioned message. 

Wednesday, July 5, 1797. 

Mr. Ross, from the committee on part of the message of the President of the United 
States, of the 3d instant, made report; and the report was read. 

Ordered, That the Vice-President notify William Blount, Senator from the State ol 
Tennessee, by letter, to attend the Senate. > 

The Vice-President accordingly addressed to him the following letter, by the 
Doorkeeper: 


Senate Chamber, July 5, 1797. 

Sir: You are hereby required to attend the Senate, in your place, without delay. 

By order of the Senate. 

TH. JEFFERSON, 

President of the Senate. 

William Blount, Esq., 

Senator from the State of Tennessee . 

On motion that it be 

Resolved, That the letter said to have been written by William Blount, together 
with the several notes that passed between the Secretary of State and the British 
minister relative to the said letter, be printed for the use of the members— 

It was agreed that the consideration of this motion be postponed until to-morrowf 

Ordered, That the injunction of secrecy respecting the message of the President o. 
the United States of the 3d instant, and the papers accompanying the same, bo 
taken oft. 

The Vice-President acquainted the Senate that the Doorkeeper had returned his 
letter addressed agreeably to their order to William Blount, as on inquiry he could 
not be found. 


Thursday, July 6, 1797. 

Mr. Ross, from the committee to whom was referred that part of the President’s 
message of the 3d instant which relates to a letter purporting to have been written 
by William Blount, esq., together with the papers accompanying the same, made a 
further report; which was read. Upon which, 

Mr. Blount read in his place a declaration, purporting that he should attend in 
his seat, from time to time, to answer to any allegations that might be brought 
against him. 

Ordered, That the consideration of the report of the committee be postponed until 
11 o’clock to-morrow morning. 

On motion by Mr. Blount that he be heard by counsel on the subject-matter of 
this report, 

A motion was made to postpone the consideration of this motion until to morrow, 
and it passed in the negative. 

Resolved, That Mr. Blount be heard by counsel, not exceeding two, to-morrow 
morning at 11 o’clock. 

Ordered, That the Secretary furnish Mr. Blount with attested copies of such papers 
as he may point out, respecting the subject this day reported on by the committee. 

Friday, July 7, 1797. 

Resolved, That the instructions to the committee to whom was referred that part 
of the President’s message of the 3d instant which relates to a letter purporting to 
have been written by William Blount, esq., together with the papers accompanying 
the same, be amended by adding, after the word “ records,” the following words: 
“and particularly the papers of William Blount, esq.” 

Agreeably to the order of the day, the Senate proceeded to the consideration of 
the report of the above-mentioned committee, made yesterday. 

On motion that such printers as may request it be accommodated with stands on 
the floor of the Senate, to enable them to take notes of their proceedings on the pre¬ 
sent occasion, it passed in the negative. 

Mr. Blount notified the Senate that Jared Ingersoll and Alexander J. Dallas are the 
counsel he has employed, agreeably to the vote of the Senate passed yesterday. 

The President requested Mr. Blount to declare whether or not he was the author 


WILLIAM BLOUNT. 931 

of a letter a copy of which was communicated with the message of the President of 
the United States of the 3d instant. 

Mr. Blount declined to answer. 

On motion, in consequence of the request of the counsel above mentioned that they 
have until Monday next to prepare themselves to show cause why the report of the 
committee should not be adopted, after debate it was agreed that the question be¬ 
fore the Senate be postponed for the purpose of receiving a special message from the 
House of Representatives. 

Saturday, July 8,1797. 

The Senate resumed the consideration of the report of the committee to whom wa 8 
referred that part of the President’s message which relates to a letter purporting to 
have been written by William Blount, esq., together with the papers accompany¬ 
ing the same. 

On motion, Mr Justice Smith was desired to attend and administer the oath to 
such witnesses as might be adduced. 

On motion, Mr. Martin and Mr. Cocke, of the Senate, being sworn, severally testified 
on inspection of the letter said to be written by Mr. Blount, that it was his hand¬ 
writing, they being acquainted therewith, and having seen him write. 

The President then said: 

“ William Blount, esq., you have now an opportunity, agreeably to the vote of Sen¬ 
ate, in pursuance of your own request, by your counsel, to show cause why the re¬ 
port of the committee should not be adopted.” 

Mr. Blount was heard by his counsel, Mr. Ingersoll and Mr. Dallas; and, 

After debate, 

A motion was made to postpone the consideration of the report of the committee 
to the next session of Congress; and it was decided in the negative—yeas 7, nays 
19; as follows: 

Yeas —Messrs. Bloodworth, Brown, Cocke, Gunn, Martin, Tazewell, and Tatnall. 

Nays —Messrs. Bingham, Bradford, Foster, Goodhue, Henry, Hillhouse, Howard, 
Hunter, Latimer, Laurance, Livermore, Marshall, Read, Ross, Rutherfurd, Sedgwick, 
Tichenor, Tracy, and Vining. 

On the question to agree to the report of the committee, as follows: 

REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Ross, Stockton, Henry, Sedgwick, and Read.] 

The committee to whom was referred that part of the President’s message which 
relates to a letter purporting to have been written by William Blount, esq., one of 
the Senators from the State of Tennessee, together with the papers accompanying 
the same, having had the same under their consideration, beg leave to make a further 
report: 

That Mr. Blount, having declined an acknowledgment or denial of the letter im¬ 
puted to him, and having failed to appear to give any satisfactory explanation re¬ 
specting it, your committee sent for the original letter, which accompanies this 
report, and it is in the following words: 

Colonel King’s Iron Works, 

April 21, 1797. 

Dear Carey : I wished to have seen you before I returned to Philadelphia, but I 
am obliged to return to the session of Congress, which commences on the 15th of May. 

Among other things that I wished to have seen you about was the business Capt. 
Chesholm mentioned to the British minister last winter at Philadelphia. 

I believe, but am not quite sure, that the plan then talked of will b© attempted 
this fall; and if it is attempted it will be in a much larger way than then talked of, 
and if the Indians act their part I have no doubt but it will succeed. A man of con¬ 
sequence has gone to England about the business, and if he makes arrangements as 
he expects I shall myself have a hand in the business, and probably shall be at the 
head of the business on the part of the British. You are, however, to understand 
that it is not yet quite certain that the plan will be attempted, yet you will do well 
to keep things in a proper train of action in case it should be attempted, and to do 
so will require all your management—I say require all your management, because 
you must take care in whatever you say to Rogers or anybody else not to let the 
plan be discovered by Hawkins, Dinsmore, Byers, or any other person in the interest 
of the United States'or Spain. 

If I attempt this plan I shall expect to have you and all my Indian country and 
Indian friends with me; but you are now in good business, I hope, and you are not 
to risk the loss of it by saying anything that will hurt you until you again hear 
from me. Where Capt.'Chesholm is I do not know; I left him in Philadelphia in 


032 


SENATE ELECTION CASES. 


March, and he frequently visited the minister and spoke upon the subject; but I be¬ 
lieve he will go into the Creek Nation by way of South Carolina or Georgia. He 
gave out he was going to England, but I did not believe him. Among other things 
that you may safely do will be to keep up my consequence with Watts and the 
Creeks and Cherokees generally, and you must by no means say anything in favor 
of Hawkins, but, as often as you can with safety to yourself, you may teach the 
Creeks to believe he is no better than he should be. Any power or consequence he 
gets will be against our plan. Perhaps Rogers, who has no office to lose, is the best 
man to give out talks against Hawkins. Read the letter to Rogers, and if you think 
it best to send it to him put a wafer in it and forward it to him by a safe hand, or 
perhaps you had best send for him to come to you, and speak to him yourself re¬ 
specting the state and prospect of things. 

I have advised you in whatever you do to take care of yourself. I have now to 
tell you to take care of me, too, for a discovery of the plan would prevent the suc¬ 
cess and much injure all the parties concerned. 

It may be that the commissioners may not run the line as the Indians expect or wish, 
and in that case it is probable the Indians may be taught to blame me for making 
the treaty. To such complaints against me, if such there are, it may be said by my 
friends, at proper times and places, that Doublehead confirmed the treaty with the 
President at Philadelphia, and receives as much as $5,000 a year, to be paid to the 
nation, over and above the first price; indeed, it may with truth be said that, though 
I made the treaty, that I made it by the instructions of the President, and, in fact, 
it may with truth be said that I was by the President instructed to purchase much 
more land than the Indians would agree to sell. This sort of talk will be throwing 
all the blame off me upon the late President, and as he is now out of office it will be 
of no consequence how much the Indians blame him. Among other things that may 
be said for me is that I was not at the running of the line, and that if I had been it 
would have been run more to their satisfaction. In short, you understand the sub¬ 
ject, and must take care to give out the proper talks, to keep up my consequence 
with the Creeks and Cherokees. Can’t Rogers contrive to get the Creeks to desire 
the President to take Hawkins out of the nation? For if he stays in the Creek Na¬ 
tion and gets the good will of the nation he can and will do great injury to our plan. 
When you have read this letter over three times, then burn it. I shall be at Knox¬ 
ville in July or August, when I will send for Watts and give him the whisky I 
promised him. 

I am, etc., 

WILLIAM BLOUNT. 

4 

Two Senators, now present in the Senate, have declared to the committee that 
they are well acquainted with the handwriting of Mr. Blount, and have no doubt 
that this letter was written by him. Your committee have examined many letters 
from Mr. Blount to the Secretary of War, a number of which are herewith submit¬ 
ted, as well as the letter addressed by Mr. Blount to Mr. Cook, liis colleague in the 
Senate, and to this committee, respecting the business now under consideration, 
and find them all to be of the same handwriting with the letter in question. Mr. 
Blount has never denied this letter, but, on the other hand, when the copy trans¬ 
mitted to the Senate was read in his presence, on the 3d instant, he acknowledged 
in his place that he had written a letter to Carey, of which he had preserved a copy, 
but could not then decide whether the copy read was a true one. Your committee 
are therefore fully persuaded that the original letter now produced was written and 
sent to Carey by Mr. Blount. They also find that this man Carey, to whom it was 
addressed, is, to the knowledge of Mr. Blount, in the pay and employment of the 
United States as their interpreter to the Cherokee Nation of Indians, and an assist¬ 
ant in the public factory at Tellico Blockhouse. That Hawkins, who is so often 
mentioned in this letter as a person who must be brought into suspicion among the 
Creeks, and if possible driven from his station, is the superintendent of Indian 
affairs for the United States among the Southern Indians; Dinsmore is agent for the 
United States in the Cherokee Nation; and Byers one of the agents in the public 
factory at Tellico Blockhouse. 

The plan hinted at in this extraordinary letter to be executed under the auspices 
of the British is so capable of different constructions and conjectures that your com¬ 
mittee at present forbear giving any decided opinion respecting it, except that to 
Mr. Blounts own mind it appeared to be inconsistent with the interests of the 
United States and of Spain, and he was therefore anxious to conceal it from both. 
But when they consider his attempts to seduce Carey from his duty as a faithful 
interpreter, and to employ him as an engine to alienate the affections and confidence 
of the Indians from the public officers of the United States residing among them; 
the measures he has proposed to excite a temper which must produce the recall or 
expulsion of our superintendent from the Creek Nation; his insidious advice tend¬ 
ing to the advancement of his own popularity and consequence, at the expense and 


WILLIAM BLOUNT. 


hazard of the good opinion which the Indians entertain of this Government and of 
the treaties subsisting between us and them, your committee have no doubt that 
Mr. Blount’s conduct has been inconsistent with his public duty, renders him un¬ 
worthy of a further continuance of his present public trust in this body, aud amounts 
to a high misdemeanor. They therefore unanimously recommend to the Senate an 
adoption of the following resolution: 

Resolved , That William Blount, esq., one of the Senators of the United States, 
having been guilty of a high misdemeanor, entirely inconsistent with his public 
trust and duty as a Senator, be, and he hereby is, expelled from the Senate of the 
United States. 

The report was adopted—yeas 25, nay 1; as follows: 

Yeas —Messrs. Bingham, Bloodworth, Bradford, Brown, Cocke, Foster, Goodhue, 
Gunn, Henry, Hillhouse, Howard, Hunter, Latimer, Laurance, Livermore, Martin, 
Marshall, Read, Ross, Rutherfurd, Sedgwick, Tatnall, Ticlienor, Tracy, andVining. 

Mr. Tazewell voted in the negative. 

So it was 

Resolved, That William Blount, esq., one of the Senators of the United States, 
having been guilty of a high misdemeanor, entirely inconsistent with his public 
trust and duty as a Senator, be, and he hereby is, expelled from the Senate of the 
United States. 

Ordered, That the Secretary transmit to the executive of the State.of Tennessee 
an attested copy of the proceedings of the Senate on the report of the committee, 
of the 6th instant, for the expulsion of William Blount. 

Ordered, That the Secretary lay before the President of the United States an at¬ 
tested copy of the proceedings of the Senate on Ins message of the 3d instant, trans¬ 
mitting a lotter signed William Blount, directed to Mr. Cary. 


934 


SENATE ELECTION CASES, 


[Tenth Congress—First session.] 

JOHN SMITH, 

Senator from Ohio from October 25,1803, till he resigned , April 25, 1808. 


November 27,1807, the Senate resolved that a committee be appointed to inquire whether it was 
compatible with the privileges of the Senate that Mr. Smith, against whom bills of indictment were 
found at the United States circuit court of Virginia for treason and misdemeanor, should be per¬ 
mitted longer to have a seat therein; and that the committee inquire into all the facts regarding 
the conduct of Mr. Smith as an alleged associate of Aaron Burr, and report to the Senate. Decem¬ 
ber 31, the committee reported that the conspiracy of Aaron Burr and his associates was of such a 
character, and that its existence was so established by evidence, that it was incompatible with the 
privileges of the Senate that any person engaged in it should be permitted to hold a seat in the Sen¬ 
ate. The committee submit to the Senate the evidence collected, and leave it to the Senate to 
determine whether the facts are sufficient to substantiate the participation of Mr. Smith in the 
conspiracy. The committee reported that the bills of indictment found against Mr. Smith in 
the United States circuit court at Richmond were precisely similar to those found against Aaron 
Burr; that owing to the fact that certain evidence was not admitted in the trial of Mr. Burr, the 
jury had found that he was “ not proved to be guilty, under that indictment, by any evidence 
submitted to them”: that on account of this decision the counsel for the United States abandoned 
the prosecution against Mr. Smith; that the committee was not disposed to question the correct^ 
ness of this decision on a case of treason before a court of criminal jurisdiction, but that whether the 
transactions proved against Aaron Burr did or did not amount, in technical language, to an overt 
act of levying war, there was no doubt in the minds of the committee that but for the vigilance and 
energy of the Government in crushing his designs they would have resulted in war; that a grand 
jury had charged Mr. Smith with being an accomplice in these designs, and that the fact that under 
the circumstances the prosecution against Mr. Smith had been abandoned did not, in the opinion 
of the committee, remove the imputation which the accusations of the grand jury had brought 
upon him; that the committee would not permit themselves to comment upon the evidence sub¬ 
mitted or the answers which Mr. Smith had given as sufficient for his justification, but that they felt 
compelled to submit for the consideration of the Senate a resolution that by his participation in the 
conspiracy of Aaron Burr he had been guilty of conduct incompatible with his station as a Senator, 
and that he be expelled therefor. April 9,1808, after long debate on the question to agree to the res¬ 
olution, 19 voted yea and 10 nay; so that, two-thirds of the Senators not concurring therein, he was 
not expelled. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journal, 10th Cong., 1st sess., with the report of the committee from Annals of Con¬ 
gress, 10th Cong., 1st sess., vol. 1, pages 56-62. 

Special references to the debates of each day are inserted below. 

Friday, November 27, 1807. 

The Hon. John Smith, from the State of Ohio, attended. 

On motion, the following resolution, having been amended, was agreed to: 

‘ ‘ Resolved , That a committee be appointed to inquire whether it be compatible with 
the honor and privileges of this House that John Smith, a Senator from the State of 
Ohio, against whom bills of indictment were found at the circuit court of Virginia, held 
at Richmond in August last, for treason and misdemeanor, should be permitted any 
longer to have a seat therein; and that the committee do inquire into all the facts re¬ 
garding the conduct of Mr. Smith as an alleged associate of Aaron Burr, and report the 
same to the Senate.’’ 

Ordered , That Messrs. Adams, Maclay, Franklin, Smith of Maryland, Pope, Thruston, 
and Anderson be the committee. 

During the discussion of the preceding resolution, 

Mr. Tiffin, by permission, read in his place a letter from Mr. Smith, as follows: 


Washington, November 27, 1807. 

Dear Sir: Just having heard that a motion is pending in the Senate to appoint a 
committee to inquire into certain charges exhibited against me at Richmond by the late 
grand jury, I beg you, sir, to assure the Senate, in my name, that nothing will afford 
me more pleasure than to have a public investigation of the said charges, and an oppor¬ 
tunity to vindicate my innocence, and I beg you, from your seat, to make this state¬ 
ment. 

I am, dear sir, respectfully, yours, &c., 

JOHN SMITH. 

Hon. Mr. Tiffin. 


[An account of the debate is found on pages 39-42 of Annals of Congress referred to 
in the head-note. ] 



JOHN SMITH. 


935 


Monday, Novembei 30, 1807. 

Mr. Adams stated that he was instructed by the committee appointed on the 27th 
instant to inquire into the conduct of John Smith, a Senator from the State of Ohio, to 
submit to the Senate the following resolution; which was read and agreed to: 

“ Resolved , That the President of the United States be requested to cause to be laid 
before the Senate such information as may he in his possession in relation to the con¬ 
duct of John Smith, a Senator from the State of Ohio, as an alleged associate of Aaron 
Burr.” 

Ordered , That the Secretary lay this resolution before the President of the United 
States. 

Mr. Adams, from the same committee, also stated that he was instructed to submit 
to the Senate the following resolution; which was read and agreed to: 

‘ ‘ Resolved , That the committee appointed on the 27th instant to inquire and report 
the facts respecting the conduct of John Smith, a Senator from the State of Ohio, as an 
alleged associate of Aaron Burr, he authorized to extend their inquiries to any other 
facts which, in their opinion, would he incompatible with his duty as a Senator of the 
United States, and that they be authorized to send for persons, papers, and records.” 

Wednesday, December 2, 1807. 

The following written message was received from the President of the United States, 
by Mr. Coles, his secretary: 

To the Senate of the United States: 

In compliance with the request made in the resolution of the Senate of November 
30 I must inform them that when the prosecutions against Aaron Burr and his associates 
were instituted I delivered to the Attorney-General all the evidence on the subject, 
formal and informal, which I had received, to he used by those employed in the pros¬ 
ecutions. On the receipt of the resolution of the Senate, I referred it to the Attorney- 
General, with a request that he would enable me to comply with it by putting into my 
hands such of the papers as might give information relative to the conduct of John 
Smith, a Senator from the State of Ohio, as an alleged associate of Aaron Burr, and 
having this moment received from him the affidavit of Elias Glover, with an assurance 
that it is the only paper in his possession which is within the term of the request of 
the Senate, I now transmit it for their use. 

TH. JEFFERSON. 

December 2, 1807. 

The message was read. 

Ordered , That the message and paper therein mentioned he referred to the committee 
appointed on the 27th of November last to inquire into the conduct of Mr. Smith as an 
alleged associate of Aaron Burr. 

Friday, December 4, 1807. 

Mr. Adams stated that he was instructed by the committee appointed to inquire into 
the conduct of John Smith, a Senator from the State of Ohio, to submit the following 
resolution; which was read and agreed to: 

“ Resolved, That the committee appointed to inquire into the conduct of John Smith, 
a Senator from the State of Ohio, be authorized to admit the attendance of Mr. Smith.” 

Monday, December 7, 1807. 

Mr. Adams stated that he was instructed by the committee appointed to inquire into 
the conduct of John Smith, a Senator from the State of Ohio, to submit the following 
resolution; which was read and agreed to: 

11 Resolved, That the committee appointed to inquire and report the facts relating to 
the conduct of John Smith, a Senator from the State of Ohio, he authorized to cause 
to be printed, under their inspection, all such documents and papers touching the sub¬ 
ject-matter of the inquiries on which they have been appointed as may appear necessary 
to the committee, previous to the presentation of the same to the Senate.” 

Thursday, December 31, 1807. 

Mr. Adams stated that the committee appointed on the 27th of November last “to 
inquire whether it he compatible with the honor and privileges of this House that John 
Smith, a Senator from the State of Ohio, against whom bills of indictment were found 
at the circuit couit of Virginia, held at Richmond in August last, for treason and mis- 


936 


SENATE ELECTION CASES. 


demeanor, should be permitted any longer to have a seat therein,” were ready to report, 
and he made the following motion; which was read and agreed to: 

Ordered , That John Smith, a Senator from the State of Ohio, be notified by the Vice- 
President to attend in his place. . , . „ , .,, 

The Vice-President accordingly notified Mr. Smith in the words following. 


“ Sie: You are hereby required to 
“By order of the Senate. 


attend the Senate in your place without delay. 

“GEO. CLINTON, 

“ President of the Senate. 


“John Smith, Esq., 

‘ ‘ Senator from the State of Ohio. ’ ’ 


And Mr. Smith attended. 

Whereupon, _ , _ 

Mr. Adams made report from the committee last mentioned; and the report was read. 

On motion, 

Ordered , That three hundred copies thereof be printed for the use of the Senate. 

Mr. Adams also, from the same committee, made a further report, which was read. 

Ordered , That it lie for consideration. 

The queries addressed by the committee to Mr. Smith, and his answers to the same, 
were read; also the testimony of James Taylor, esq., and Mr. Smith’s letter to the com¬ 
mittee relating thereto. 

A motion was made by Mr. Hillhouse that Mr. Smith’s answers be printed for the 
use of the Senate; and objections arising thereon that the said answer contained excep¬ 
tionable matter which ought not to be printed, 

It was agreed, by consent of Mr. Smith, that he should take back his answers, and 
expunge such exceptionable matters, and that the answers should then be printed, 
under the inspection of the chairman of the committee. 

[An account of the debate is found on pages 62, 63 of the Annals of Congress referred 
to in the head-note.] 

EEPOET OF COMMITTEE. 


[The committee consisted of Messrs. Adams, Maclay, Franklin, Smith of Maryland 
Pope, Thruston, and Anderson.] 

Your committee are of opinion that the conspiracy of Aaron Burr and his associates 
against the peace, union, and liberties of these States is of such a character, and that its 
existence is established by such a mass of concurring and mutually corroborative testi¬ 
mony, that it is incompatible, not only with the honor and privileges of this House, 
but with the deepest interests of this nation, that any person engaged in it should be per¬ 
mitted to hold a seat in the Senate of the United States. 

Whether the facts, of which the committee submit herewith such evidence as, under 
the order of the Senate, they have been able to collect, are sufficient to substantiate the 
participation of Mr. Smith in that conspiracy or not will remain for the Senate to 
decide. 

The committee submit also to the consideration of the Senate the correspondence be¬ 
tween Mr. Smith and them, through their chairman, in the course of their meetings. 
The committee have never conceived themselves invested with authority to try Mr. 
Smith. Their charge was to report an opinion relating to the honor and privileges of 
the Senate and the facts relating to the conduct of Mr. Smith. Their opinion, indeed, 
cannot be expressed in relation to the privilege of the Senate without relating, at the 
same time, to Mr. Smith’s right of holding a seat in this body; but in that respect the 
authority of the committee extends only to proposal, and not to decision. But as he 
manifested a great solicitude to be heard before them, they obtained permission from the 
Senate to admit his attendance, communicated to him the evidence in their possession 
by which he was inculpated, furnished him in writing with the questions arising from 
it which appeared to them material, and received from him the information and explana¬ 
tions herewith submitted as part of the facts reported. But Mr. Smith has claimed as a 
right to be heard in his defense by counsel, to have compulsory process for witnesses, and 
to be confronted with his accusers, as if the committee had been a circuit court of the 
United States. But it is before the Senate itselfthat your committee conceived it just and 
proper that Mr. Smith’s defense of himself should be heard. Nor have they conceived 
themselves bound in this inquiry by any other rules than those of natural justice and 
equity due to a brother Senator on the one part, and to their country on the other. 

Mr. Smith represents himself on this inquiry as solitary, friendless, and unskilled, 
contending for rights which he intimates are denied him; and the defender of Senatorial 




JOHN SMITH. 


937 


privileges which he seems apprehensive will be refused him by Senators, liable, so long 
as they hold their offices, to have his case made their own. The committee are not un¬ 
aware that in the vicissitudes of human events no member of this body can be sure that 
his conduct will never be made a subject of inquiry and decision before the assembly to 
which he belongs. They are aware that, in the course of proceeding which the Senate 
may now sanction, its members are marking out a precedent which may hereafter apply 
to themselves. They are sensible that the principles upon which they have acted ought 
to have the same operation upon their own claims to privilege as upon those of Mr. Smith; 
the same relation to the rights of their constituents which they have to those of the 
legislature which he represents. They have deemed it their duty to advance in the 
progress ot their inquiry with peculiar care and deliberation. They have dealt out to 
Mr. Smith that measure which, under the supposition of similar circumstances, they 
would be content to find imparted to themselves; and they have no hesitation in declar¬ 
ing that under such imputations, colored by such evidence, they should hold it a sacred 
obligation to themselves, to their fellow-Senators, and to their country to meet them by 
direct, unconditional acknowledgment or denial, without seeking a refuge from the broad 
face of day in the labyrinth of technical forms. 

In examining the question whether these forms of judicial proceedings or the rules 
of judicial evidence ought to be applied to the exercise of that censorial authority which 
the Senate of the United States possesses over the conduct of its members, let us assume 
as the test of their application either the dictates of unfettered reason, the letter and 
spirit of the Constitution, or precedents domestic or foreign, and your committee believe 
that the result will be the same; that the power of expelling a member must, in its nat¬ 
ure, be discretionary, and in its exercise always more summary than the tardy process of 
judicial tribunals. 

The power of expelling a member for misconduct results on the principles of common 
sense from the interest of the nation that the high trust of legislation should be invested 
in pure hands. When the trust is elective it is not to be presumed that the constituent 
body will commit the deposit to the keeping of worthless characters. But when a man 
whom his fellow-citizens have honored with their confidence on the pledge of his spot¬ 
less reputation has degraded himself by the commission of infamous crimes which be¬ 
come suddenly and unexpectedly revealed to the world, defective indeed would be that 
institution which should be impotent to discard from its bosom the contagion of such a 
member, which should have no remedy of amputation to apply until the poison had 
reached the heart. 

The question upon the trial of a criminal cause before the courts of common law is 
not between guilt and innocence, but between guilt and the possibility of innocence. If 
a doubt can possibly be raised, either by the ingenuity of the party or of his counsel, or 
by the operation of general rules in their unforeseen application to particular cases, that 
doubt must be decisive for acquittal, and the verdict of not guilty perhaps in nine cases 
out of ten means no more than that the guilt of the party has not been demonstrated in 
the precise, specific, and narrow forms prescribed by law. The humane spirit of the 
laws multiplies the barriers for the protection of innocence and freely admits that these 
barriers may be abused for the shelter of guilt. It avows a strong partiality favorable to 
the person upon trial, and acknowledges the preference that ten guilty should escape 
rather than that one innocent should suffer. The interest of the public that a particu¬ 
lar crime should be punished is but as one to ten, compared with the interest of the 
party, that innocence should be spared. Acquittal only restores the party to the com¬ 
mon rights of every other citizen; it restores him to no public trust; it invests him with 
no public confidence; it substitutes the sentence of mercy for the doom of justice, and 
to the eyes of impartial reason in the great majority of cases must be considered rather 
as a pardon than a justification. 

But when a member of a legislative body lies under the imputation of aggravated of¬ 
fenses and the determination upon his cause can operate only to remove him from a 
station of extensive powers and important trust, this disproportion between the interest 
of the public and the interest of the individual disappears; if any disproportion exists 
it is of an opposite kind. It is not better that ten traitors should be members of this 
Senate than that one innocent man should suffer expulsion. In either case, no doubt, 
the evil would be great. But in the former it would strike at the vitals of the nation; 
in the latter it might, though deeply to be lamented, only be the calamity of an indi¬ 
vidual. 

By the letter of the Constitution the power of expelling a member is given to each 
of the two Houses of Congress, without any limitation other than that which requires a 
concurrence of two-thirds of the votes to give it effect. 

The spirit of the Constitution is perhaps in no respect more remarkable than in the 
solicitude which it has manifested to secure the purity of the Legislature by that of the 
elements of its composition. A qualification of age is made necessary for the members 


938 


SENATE ELECTION CASES. 


to insure the maturity of their judgment; a qualification of long citizenship to insure a 
community of interests and affections between them and their country; a qualification 
of residence to provide a sympathy between every member and the portion of the 
Union from which he is delegated; and to guard, as far as regulation can guard, 
against every bias of personal interest and every hazard of interfering duties, it has 
made every member of Congress ineligible to office which he contributed to create, and 
every officer of the Union incapable of holding a seat in Congress. Yet, in the midst oi 
all this anxious providence of legislative virtue, it has not authorized the constituent 
body to recall in any case its representative. It has not subjected him to removal by 
impeachment; and when the darling of the people’s choice has become their deadliest 
foe can it enter the imagination of a reasonable man that the sanctuary of their legisla¬ 
tion must remain polluted with his presence until a court of common law with its pace of 
snail can ascertain whether his crime was committed on the right or on the left bank of 
a river; whether a puncture of difference can be found between the words of the charge 
and the words of the proof; whether the witnesses of his guilt should or should not be 
heard by his jury; and whether he was punishable because present at an overt act or in¬ 
tangible to public justice because he only contrived and prepared? Is it conceivable that 
a traitor to that country which has loaded him with favors, guilty to the common under¬ 
standing of all mankind, should be suffered to return unquestioned to that post of honor 
and confidence where, in the zenith of his good fame, he had been placed by the esteem 
of his countrymen, and in defiance of their wishes, in mockery of their fears, surrounded 
by the public indignation, but inaccessible to its bolt, pursue the purposes of treason in 
the heart of the national councils? Must the assembled rulers of the land listen with 
calmness and indifference session after session to the voice of notorious infamy until the 
sluggard step of municipal j ustice can overtake his enormities ? Must they tamely see 
the lives and fortunes of millions, the safety of present and future ages, depending upon 
his vote recorded with theirs, merely because the abused benignity of general maxims 
may have remitted to him the forfeiture of his life? 

Such, in very supposable cases, would be the unavoidable consequences of a principle 
which should offer the crutches of judicial tribunals as an apology for crippling the 
Congressional power of expulsion. Far different, in the opinion of your committee, is 
the spirit of our Constitution. They believe that the very purpose for which this power 
was given was to preserve the Legislature from the first approaches of infection; that 
it was made discretionary because it could not exist under the procrastination of general 
rules; that its process must be summary, because it would be rendered nugatory by 
delay. 

Passing from the constitutional view of the subject to that which is afforded by the au¬ 
thority of precedent, your committee find that since the establishment of our present 
National Legislature there has been but one example of expulsion from the Senate. In 
that case the member implicated was called upon in the first instance to answer whether 
he was the author of a letter the copy of which only was produced, and the writing of 
which was the cause of his expulsion. He was afterwards requested to declare whether 
he was the author of the letter itself, and declining in both cases to answer, the fact of 
his having written it was established by a comparison of his handwriting and by the be¬ 
lief of persons who had seen him write, upon inspection of the letter. In all these 
points the committee perceive the admission of a species of evidence which in courts 
of criminal jurisdiction would be excluded, and in the resolution of expulsion the Sen¬ 
ate declared the person inculpated guilty of a high misdemeanor, although no present¬ 
ment or indictment had been found against him and no prosecution of law was ever 
commenced upon the case. 

This event occurred in July, 1797. About fifteen months before that time, upon an 
application from the legislature of Kentucky requesting an investigation by the Senate of 
a charge against one of the members from that State of perjury, which had been made 
in certain newspaper publications, but for which no prosecution had been commenced, 
the Senate did adopt by a majority of 16 votes to 8 the report of a committee purport¬ 
ing that the Senate had no jurisdiction to try the charge, and that the memorial of the 
Kentucky legislature should be dismissed. There were, indeed, very sufficient reasons 
of a different kind assigned in the same report for not pursuing the investigation in 
that particular case any further; and your committee believe that in the reasoning of 
that report some principles were assumed and some inferences drawn which were alto¬ 
gether unnecessary for the determination of that case which were adopted without a full 
consideration of all their consequences, and the inaccuracy of which was clearly proved 
by the departure from them in the instance which was so soon afterwards to take place. 
It was the first time that a question of expulsion had ever been agitated in Congress 
since the adoption of the Constitution, and the subject being thus entirely new, was 
considered perhaps too much with reference to the particular circumstances of the mo¬ 
ment, and not enough upon the numerous contingencies to which the general question 


JOHN SMITH. 


939 


might apply. Your committee state this opinion with some confidence, because of the 
sixteen Senators who in March, 1796, voted for the report dismissing the memorial of 
the Kentucky legislature eleven, on the subsequent occasion in July, 1797, voted also 
for that report which concluded with a resolution for the expulsion of Mr. Blount. The 
other five were no longer present in the Senate. Yet, if the principles advanced in the 
first report had been assumed as the ground of proceeding at the latter period the Sen¬ 
ate would have been as impotent of jurisdiction upon the offense of Mr. Blount as they 
had supposed themselves upon the allegation against Mr. Marshall. 

Those parts of the fifth and sixth articles amendatory to the Constitution upon which 
the report in the case of Mr. Marshall appears to rely for taking away the jurisdiction 
of the Senate your committee suppose can only be understood as referring to prosecu¬ 
tions at law; to suppose that they were intended as restrictions upon powers expressly 
granted by the Constitution to the Legislature or either of its branches would in a 
manner annihilate the power of impeachment as well as that of expulsion. It would 
lead to the absurd conclusion that the authority given for the purpose of removing in¬ 
iquity from the seats of power should be denied its exercise in precisely those cases 
which most loudly call for its energies. It would present the singular spectacle of a 
legislature vested with powers of expelling its members, of impeaching, removing, and 
disqualifying public officers for trivial transgressions beneath the cognizance of the law, 
yet forbidden to exert them against capital or infamous crimes. 

These two articles were in substance borrowed from similar regulations contained in 
that justly celebrated statute which for so many ages has been distinguished by the name 
of the Great Charter of England. Yet in that country, where they are recognized as the 
most solid foundations of the liberties of the nation, they have never been considered as 
interfering with the power of expelling a member, exercised at all times by the House of 
Commons; a power which there, however, rests only upon parliamentary usage, and has 
never been bestowed, as in the Constitution of the United States, by any act of supreme 
legislation. From a number of precedents which have been consulted it is found thal 
the exercise of this authority there has always been discretionary and its process always 
far otherwise than compendious in the prosecutions before the judicial courts. So far, 
indeed, have they been from supposing a conviction at law necessary to precede a vote of 
expulsion that in one instance a resolution to demand a prosecution appears immedi¬ 
ately after the adoption of the resolution to expel. In numerous cases the member sub¬ 
mits to examination, adduces evidence in his favor, and has evidence produced against 
him, with or without formal authentication, and the discretion of the house is not even 
restricted by the necessary concurrence of more than a bare majority of the votes. 

The provision in our Constitution which forbids the expulsion of a member by an or¬ 
dinary majority and requires for this act of rigorous and painful duty the assent of two- 
thirds your committee consider as a wise and sufficient guard against the possible abuse 
of this legislative discretion. In times of heat and violent party spirit the rights of the 
minority might not always be duly respected if a majority could expel their members 
under no other control than that of their own discretion. The operation of this rule is 
of great efficacy, both over the proceedings of the whole body and over the conduct of every 
individual member. The times when the most violent struggles of contending parties 
occur—when the conflict of opposite passions is most prone to excess—are precisely the 
times when the numbers are most equally divided; when the majority amounts to the 
proportion of two-thirds the security in its own strength is of itself a guard against ex¬ 
traordinary stretches of power; when the minority dwindles to the proportion of one-third 
its consciousness of weakness dissuades from any attempts to encroach upon the rights of 
the majority, which might provoke retaliation. But if expulsion were admissible only 
as a sequel to the issue of a legal prosecution or upon the same principles and forms of 
testimony which are established in the criminal courts, your committee can see no pos¬ 
sible reason why it should be rendered still more imbecile by the requisition of two- 
thirds to give it effect. 

It is now the duty of your committee to apply the principles which they have here en¬ 
deavored to settle and elucidate to the particular case upon which the Senate have directed 
them to report. The bills of indictment found against Mr. Smith at the late session of 
the circuit court of the United States at Richmond (copies of which are herewith submit¬ 
ted) are precisely similar to those found against Aaron Burr. From the volume of printed 
evidence communicated by the President of the United States to Congress, relating to the 
trial of Aaron Burr, it appears that a great part of the testimony which was essential to 
his conviction upon the indictment for treason was withheld from the jury upon an 
opinion of the court that Aaron Burr, not having been present at the overt act of treason 
alleged in the indictment, no testimony relative to his conduct or declarations else¬ 
where, and subsequent to the transactions on Blannerhasset’s Island, could be admitted. 
And in consequence of this suppression of evidence the traverse jury found a verdict 
“ that Aaron Burr was not proved to be guilty, under that indictment, by any evidence 


940 


SENATE ELECTION CASES. 


submitted to them.” It was also an opinion of the court that none of the transactions 
of which evidence was given on the trial of Aaron Burr did amount to an overt act of 
levying war, and, of course, that they did not amount to treason. These decisions, form¬ 
ing the basis of the issue upon the trials of Burr, anticipated the event which must have 
awaited the trials of the bills against Mr. Smith, who, from the circumstances of his case, 
must have been entitled to the benefit of their application; they were the sole induce¬ 
ments upon which the counsel for the United States abandoned the prosecution against 
him. 

Your committee are not disposed now to question the correctness of these decisions on 
a case of treason before a court of criminal jurisdiction. But whether the transactions 
proved against Aaron Burr did or did not amount, in technical language, to an overt act 
of levying war, your committee have not a scruple of doubt on their minds that but for 
the vigilance and energy of the Government and of faithful citizens under its direc¬ 
tions in arresting their progress and in crushing his designs, they would, in a very short 
lapse of time, have terminated not only in a war, but in a war of the most horrible de¬ 
scription, in a war at once foreign and domestic. As little hesitation have your com¬ 
mittee in saying that if the daylight of evidence, combining one vast complicated 
intention with overt acts innumerable, be not excluded from the mind by the curtain of 
artificial rules the simplest understanding cannot but see what the subtlest understand¬ 
ing cannot disguise, crimes before which ordinary treason whitens into virtue; crimes of 
which war is the mildest feature. Thedebauchment of our Army, the plunder and devas¬ 
tation of our own and foreign territories, the dissolution of our national Union, and the 
root of interminable civil war were but the means of individual aggrandizement, the steps 
to projected usurpation. If the ingenuity of a demon were tasked to weave into one com¬ 
position all the great moral and political evils which could be inflicted upon the people 
of these States it could produce nothing more than a texture of war, dismemberment, 
and despotism. 

Of these designs a grand jury composed of characters as respectable as this nation can 
boast have upon the solemnity of their oaths charged John Smith with being an accom¬ 
plice. The reasons upon which the trial of this charge has not been submitted to the ver¬ 
dict of a jury have been shown by your committee and are proved by the letter from the 
attorney of the United States for the district of Virginia, herewith reported. And your 
committee are of opinion that the dereliction of the prosecution on these grounds cannot 
in the slightest degree remove the imputation which the accusations of the grand jury 
have brought to the door of Mr. Smith. 

Your committee will not permit themselves to comment upon the testimony which they 
submit herewith to the Senate; nor upon the answers which Mr. Smith has given as 
sufficient for his justification. Desirous as the committee have been that this justifica¬ 
tion might be complete, anxiously as they wished for an opportunity declaring their 
belief of his innocence, they can neither control nor dissemble the operation of the evi¬ 
dence upon their minds; and, however painful to their feelings, they find themselves 
compelled by a sense of duty paramount to every other consideration to submit to the 
Senate for their consideration the following resolution: 

Resolved , That John Smith, a Senator from the State of Ohio, by his participation in 
the conspiracy of Aaron Burr against the peace, union, and liberties of the people of the 
United States, has been guilty of conduct incompatible with his duty and station as a 
Senator of the United States, and that he be therefore, and hereby is, expelled from the 
Senate of the United States. 

Monday, January 4,1808. 

Mr. Adams laid before the Senate a letter from Mr. Smith, directed to the chairman 
of the committee of inquiry appointed 27th November, which letter Mr. Smith requested 
might be considered as a part of his answer; and the letter was read. 

Tuesday, January 5^ 1808. 

On motion by Mr. Adams, the minutes of the committee of inquiry appointed the 
27th of November last, on the conduct of John Smith, a Senator from the State of Ohio, 
also sundry papers relative to the inquiry, were read, and 

On motion by Mr. Bradley, it was agreed that the report of the committee be the order 
of the day for Thursday next. 

Thursday, January 7, 1808. 

Agreeably to the order of the day, the Senate resumed the consideration of the report 
of the committee of inquiry appointed on the 27th of November last, on the conduct of 
John Smith, a Senator from the State of Ohio; and the report was read. 

Mr. Smith’s letter to the President, of the 4th instant, was also read. 

On request of Mr. Smith, that he be informed specifically of the charges against him; 


JOHN SMITH. 


941 


that he he allowed to make defense against such charges, and process to compel the at¬ 
tendance of witnesses necessary in his defense, and the privilege of being heard by counsel; 

After debate, 

A motion was made by Mr. Hillhouse that it be 

Resolved , That Mr. Smith be heard by counsel, not exceeding two, to show cause why 
the report of the committee should not be adopted; 

And, on the question to agree to this resolution, it passed unanimously in the affirma¬ 
tive—yeas 32. 

The yeas and nays having been required by one-fifth of the Senators present, 

Those who voted are Messrs. Adams, Anderson, Bayard, Bradley, Condit, Crawford, 
Gaillard, Giles, Gilman, Goodrich, Gregg, Hillhouse, Howland, Kitchel, Maclay, Math- 
ewson, Milledge, Mitchill, Moore, Parker, Pickering, Pope, Reed, Robinson, Smith of 
Maryland, Smith of New York, Smith of Tennessee, Sumter, Thruston, Tiffin, Turner, 
and White. ’ 

On motion, 

Ordered , That Wednesday next be assigned for the hearing. 

[An account of the debate is found on pages 66-78 of the Annals of Congress referred 
to in the head-note. ] 


Tuesday, January 12, 1808. 

On request of Mr. Smith, of Ohio, fora copy of the minutes of the committee appointed 
on the 27th of November last, to inquire into his conduct, and also a copy of all the corre¬ 
spondence between them and himself, 

The following motion was made by Mr. Crawford: 

Ordered , That a copy of the minutes of the committee appointed on the 27th of No¬ 
vember last, to inquire into the conduct of John Smith, of Ohio, and also a copy of the 
correspondence between the committee and said Smith, be furnished to the said John 
Smith. 

And on the question to agree to this motion, it was determined in the affirmative— 
yeas 17, nays 9. 

The yeas and nays having been required by one-fifth of the Senators present, 

Those who voted in the affirmative are Messrs. Bayard, Crawford, Goodrich, Gregg, 
Hillhouse, Howland, Mathewson, Milledge, Mitchill, Pickering, Pope, Reed, Smith of 
New York, Sumter, Thruston, Turner, and White. 

Those who voted in the negative are Messrs. Anderson, Bradley, Condit, Giles, Gil¬ 
man, Kitchel, Moore, Parker, and Smith of Tennessee. 


Wednesday, January 13, 1808. 

Agreeably to the order of the day, the Senate resumed the consideration of the report 
of the committee appointed the 27th of November last, to inquire into the conduct of 
John Smith, a Senator from the State of Ohio. 

The President stated to Mr. Smith that he had now an opportunity to show cause why 
the report of the committee should not be adopted, and he was desired to name his counsel. 

He accordingly informed the Senate that he had engaged Luther Martin and Francis 
S. Key, esquires, as counsel; and 

On motion of Mr. Bradley, Shall Mr. Key be admitted as counsel for Mr. Smith? it 
was determined in the affirmative; and 

On motion, Shall Mr. Martin be admitted as counsel for Mr. Smith? it was determined 
in the negative. 

On request by Mr. Bayard that Mr. Smith inform the Senate whether, under present 
circumstances, he is ready to proceed, 

Mr. Smith, by his counsel, offered his affidavit, together with the following applica¬ 
tion: 

“John Smith, of Ohio, offers his affidavit to the honorable Senate, and requests a 
reasonable time to procure the testimony therein stated, and the proper means to enable 
him to produce it.” 

The affidavit was read. 

The letter of the 4th of January to the President from Mr. Smith, requesting to be 
heard by counsel, was again read. 

On motion by Mr. Giles, 

Ordered , That the affidavit and application, together with the subsequent report of 
the committee appointed 27th of November last to inquire into the conduct of John 
Smith, a Senator from the State of Ohio, be printed for the use of the Senate. 

On motion by Mr. Gilman, it was agreed that the further consideration of the appli¬ 
cation of Mr. Smith, made this day by his counsel, be postponed until to-morrow. 


942 


SENATE ELECTION CASES. 


Thursday, January 14, 1808. 

Mr. Adams moved that sundry amendments and notes of reference be entered upon the 
minutes of the proceedings of the committee appointed on the 27th of November last to 
inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged 
accomplice of Aaron Burr; which were read and ordered to be entered accordingly. 
******* 

Agreeably to the order of the day, the Senate resumed the consideration of the appli¬ 
cation of John Smith, a Senator from the State of Ohio, filed yesterday, as follows: 
“John Smith, of Ohio, offers his affidavit to the honorable Senate, and requests a reason¬ 
able time to procure the testimony therein stated, and the proper means to enable him 
to produce it.” 

Whereupon, 

A motion was made by Mr. Giles that the further consideration of the resolution re¬ 
ported by the committee for the expulsion of John Smith from this House be postponed 
until the — day of-next, on which day the Senate will proceed to the final hear¬ 

ing of the said John Smith, with such testimony as he shall then offer to them, to show 
cause why the said resolution should not be adopted by the Senate. 

Ordered, That this motion be referred to Messrs. Anderson, Giles, Adams, Crawford, 
and Bayard, to consider and report thereon. 

The following motion, made by Mr. Bayard, was referred to the above-mentioned 
committee: 

“ Resolved , That John Smith, of Ohio, having made affidavit of the materiality of wit¬ 
nesses now absent, by whom, he states, he will be able to disprove the charges made 

against him, that he be allowed time till the — day of-to obtain the testimony of 

any witnesses, and to procure any evidence which he may deem material in his defense.” 

The following motion, made by Mr. Crawford, was referred to the same committee: 

“ Resolved , That the consideration of the resolution for the expulsion of John Smith be 

postponed until the — day of-next, on which day the Senate will proceed to hear 

the testimony of such witnesses as may then attend on the part of Mr. Smith, or against 
him, which will have a tendency to destroy or support the testimony of Elias Glover, 
Peter Taylor, and Col. James Taylor.” 

The following motion, made by Mr. Bayard, was also referred to the same committee: 

“ Resolved , That the Senate will allow John Smith, of Ohio, to adduce, in his defense 
against the charges made against him, the depositions of any witnesses he may deem 
material in his defense, and also the testimony of witnesses whom he may bring to the 
bar of the Senate, and all other evidence which he may deem material.” 

On motion, 

Ordered, That the affidavit of John Smith, filed on the 13th instant, be referred to the 
same committee, to consider and report thereon. 

[An account of the debate is found on pages 84, 85 of the Annals of Congress referred 
to in the head-note.] 

Saturday, January 16, 1808. 

Mr. Anderson, from the committee to whom was referred several resolutions which 
were offered to the consideration of the Senate, in the case of John Smith, Senator from 
the State of Ohio, made report; which was read for consideration. 

[For report, see proceedings Wednesday, January 20, 1808.] 

Monday, January 18, 1808. 

On motion by Mr. Anderson to proceed to the examination of James Taylor, in the 
case of John Smith, a Senator from the State of Ohio, 

A motion was made by Mr. Maclay to postpone this motion, and to go into the consid¬ 
eration of the report of the committee appointed 27th November to inquire into the con¬ 
duct of John Smith, a Senator from the State of Ohio; and it was determined in the 
negative. 

On motion by Mr. Anderson, 

“ Resolved, That Col. James Taylor be examined at the bar of the Senate in the case of 
John Smith, a Senator from the State of Ohio; that the questions put to Mr. Taylor be 
reduced to writing and put to him by the President, who shall decide upon the propriety 
of each question proposed.” 

James Taylor was called accordingly, and the oath was administered to him by the 
President in the form following: 

“You solemnly swear that you will make true answers to such questions as shall be 
put to you touching the case of John Smith, a Senator from the State of Ohio, now in 
hearing. ’ ’ 

On motion by Mr. Anderson, 

Ordered , That the Secretary of the Senate notify John Graham that he is requested to 





JOHN SMITH. 943 

attend the Senate to give evidence in the case of John Smith, a Senator from the State 
of Ohio; 

And Mr. Graham attended. 

Mr. Smith attended with his counsel, and, after the examination and cross-examina¬ 
tion of Mr. Taylor, 

On motioL the Senate adjourned to 11 o’clock to-morrow morning. 

[An account of the debate is found on pages 87-89 of the Annals of Congress referred 
to in the head-note. ] 

Tuesday, January 19, 1808. 

The Senate resumed the examination of the witnesses in the case of John Smith, a 
Senator from the State of Ohio. 

Mr. Smith attended with his counsel. 

James Taylor was again called, examined, and cross-examined. 

On motion by Mr. Adams, Mr. Taylor was requested to file attested copies of extracts 
of certain letters written by him to the Secretary of State, and read this morning as part 
of his testimony. 

John Graham was called, sworn, and examined. 

James Taylor was again called and cross-examined. 

Mr. Pope submitted the following motion for consideration: 

“ Resolved , That the Secretary of the Senate do issue a subpoena, in the usual form, to 
cause to be summoned to appear before the Senate, on the first Monday in March next, 
Elias Glover, then and there to give testimony in the case of John Smith, a Senator from 
the State of Ohio, regarding his alleged participation in the conspiracy of Aaron Burr. ’ ’ 

Wednesday, January 20, 1808. 

On motion by Mr. Adams, Mr. Tiffin, a Senator from the State of Ohio, was sworn as 
a witness in the case of John Smith, Senator from that State, examined and cross-exam¬ 
ined. 

Mr. Smith attended with his counsel. 

The Senate proceeded to consider the report of the committee to whom was referred 
several resolutions submitted to the Senate in the case of John Smith, a Senator from 
the State of Ohio, made on the 16th instant. 

On motion to amend the report and strike out the words “first day of March next,” 
it was determined in the negative—yeas 10, nays 21. 

The yeas and nays being required by one-fifth of the Senators present, 

Those who voted in the affirmative are Messrs. Anderson, Condit, Gilman, Kitchel, 
Maclay, Mathewson, Moore, Parker, Robinson, and Smith of Tennessee. 

Those who voted in the negative are Messrs. Adams, Bayard, Crawford, Franklin, Gail- 
lard, Giles, Goodrich, Gregg, Hillhouse, Howland, Milledge, Mitchill, Pickering, Pope, 
Reed, Smith of Maryland, Smith of New York, Sumter, Thruston, Turner, and White. 

On motion to adopt the report of the committee, which is as follows: 

“ Resolved , That on the 1st day of March next the Senate will receive such testimony 
as John Smith, Senator from the State of Ohio, may then adduce in his defense, and that 
the Senate will then proceed to the final consideration of the report of the committee 
appointed on the 27th of November last, to inquire into his conduct as an alleged asso¬ 
ciate of Aaron Burr; provided, in case Mr. Smith shall adduce evidence to discredit any 
witness whose testimony has been made use of against him, that he shall make it appear 
to the Senate that reasonable notice had been given to the witness so intended to be dis¬ 
credited of the time and place appointed for the taking of such evidence, that he was 
served with a copy of this resolution,” 

It was determined in the affirmative—yeas 25, nays 6. 

The yeas and nays having been required by one-fifth of the Senators present, 

Those who voted in the affirmative are Messrs. Adams, Anderson, Bayard, Condit, 
Crawford, Franklin, Gaillard, Giles, Goodrich, Gregg, Hillhouse, Howland, Kitchel, 
Milledge, Mitchill, Pickering, Pope, Reed, Smith of Maryland, Smith of New York, 
Smith of Tennessee, Sumter, Thruston, Turner, and White. 

Those who voted in the negative are Messrs. Gilman, Maclay, Mathewson, Moore, Par¬ 
ker, and Robinson. 

On motion by Mr. Adams, 

“ Resolved , That the Secretary of the Senate do procure, from the clerk of the circuit 
court of the United States for the district of Virginia, certified copies of the papers read 
in that court on the trial of Aaron Burr, and originally published in the Ohio Gazette, 
under the signature of Querist.” 

On motion by Mr. Adams, 

“ Resolved , That the Secretary of the Senate do procure a file of the newspaper called 
the Enquirer, edited at Richmond by Thomas Ritchie, for the year 1807.” 


044 


SENATE ELECTION CASES. 


The motion by Mr. Pope, that the Secretary of the Senate issue a subpoena, was amended 
as follows: 

11 Resolved, That the Secretary of the Senate do issue a summons, in the usual form, to 
cause to be summoned to appear before the Senate, on the first day in March next, Elias 
Glover and William McFarland, then and there to give testimony in the case of John 
Smith, a Senator from the State of Ohio, regarding his alleged participation in the con¬ 
spiracy of Aaron Burr.” 

And on the question to agree to this motion as amended, it was determined in the 
negative—yeas 7, nays 23. 

The yeas and nays having been required by one-fifth of the Senators present, 

Those who voted in the affirmative are Messrs. Bayard, Goodrich, Hillhouse, Picker¬ 
ing, Pope, Smith of Maryland, and White. 

Those who voted in the negative are Messrs. Adams, Anderson, Bradley, Condit, Craw¬ 
ford, Franklin, Gaillard, Giles, Gilman, Gregg, Howland, Kitchel, Maclay, Mathewson, 
Milledge, Mitchill, Parker, Reed, Robinson, Smith of New York, Smith of Tennessee, 
Sumter, and Turner. 

[An account of the debate is found on pages 90-98 of the Annals of Congress referred 
to in the head-note.] 


Monday, January 25, 1808. 

The President communicated a letter from James Taylor, requesting compensation as 
a witness in the case of John Smith, of Ohio; which was read. 

Ordered , That it be referred to Messrs. Adams, Anderson, and Tiffin to report thereon. 
(The bill passed the Senate the following day.) 


Tuesday, March 1, 1808. 

Agreeably to the order of the day, the Senate resumed the consideration of the reso¬ 
lution reported by the select committee for the expulsion of John Smith, a Senator from 
the State of Ohio. 

Mr. Smith being absent, Mr. Key attended as his counsel. 

On request by Mr. Key that Mr. Harper be permitted to attend also as counsel on 
behalf of Mr. Smith, 

A motion was made by Mr. Bradley that Mr. Harper be admitted as one of the coun¬ 
sel of Mr. Smith; and it passed in the affirmative. 

Whereupon, 

Mr. Harper attended. 

The following request was submitted by Mr. Key: 

“John Smith, of Ohio, by his counsel, prays the honorable Senate to grant him fur¬ 
ther time to produce his testimony and prepare for his defense.” 

On motion by Mr. Tiffin, 

Ordered , That the papers directed to the Secretary of the Senate, and which were 
taken as testimony in the case of John Smith, of Ohio, be referred to a select committee, 
to examine and report thereon, and that Messrs. Anderson, Adams, and Tiffin be the 
committee. 


Wednesday, March 2, 1808. 

Mr. Anderson, from the committee appointed to examine and separate the deposi¬ 
tions transmitted in the case of John Smith, a Senator from the State of Ohio, reported 
that they had performed that service. 


^ _ Thursday, March 3, 1808. 

On motion by Mr. Adams, 

Ordered , That the consideration of the first report of the committee appointed to 
inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged 
associate of Aaron Burr, be postponed to Tuesday, the 15th instant. 

On motion by Mr. Adams, 

Ordered , That the papers received by the Secretary of the Senate relating to the case 
of John Smith, a Senator from the State of Ohio, be subject to the inspection of his 
counsel. 


Friday, March 4, 1808. 

The President communicated sundry letters from Elias Glover, referring to deposi¬ 
tions mclosed, in the case of John Smith, a Senator from the State of Ohio and the 
letters were read. 

On motion by Mr. Gregg, 

Ordered , That the counsel on behalf of John Smith, a Senator from the State of Ohio 
be authorized to take copies of the depositions in the case, under the direction of the 
Secretary of the Senate. 


JOHN SMITH. 


945 


Tuesday, March 15, 1808. 

Agreeably to the order of the day, the Senate resumed the consideration of the first 
report of the committee appointed to inquire into the conduct of John Smith, a Senator 
from the State of Ohio, as an alleged associate of Aaron Burr. 

Messrs. Harper and Key, counsel for Mr. Smith, attended. 

Mr. Harper read a letter from Mr. Smith, requesting further time to enable him to 
prepare for his defense, and requested, in Mr. Smith’s behalf, an extension of the time 
accordingly. 

Whereupon, 

On motion by Mr. Hillhouse that the further consideration of the report of the com¬ 
mittee be postponed to Monday, the 28th of March, it was determined in the negative— 
yeas 15, nays 17. 

The yeas and nays having been required by one-fifth of the Senators present, 

Those who voted in the affirmative are Messrs. Adams, Bayard, Gaillard, Giles, Good¬ 
rich, Hillhouse, Howland, Mathewson, Pickering, Pope, Reed, Smith of New York, 
Sumter, Thruston, and White. 

Those who voted in the negative are Messrs. Anderson, Bradley, Condit, Crawford, 
Franklin, Gilman, Gregg, Kitchel, Maclay, Milledge, Mitchill, Moore, Parker, Robinson, 
Smith of Maryland, Smith of Tennessee, and Turner. 

On request by Mr. Key, one of the counsel in behalf of Mr. Smith, of Ohio, and on 
motion by Mr. Smith, of Maryland, it was agreed that the further consideration of the 
report of the committee be postponed until to-morrow. 

[An account of the debate is found on pages 164-167 of the Annals of Congress re¬ 
ferred to in the head-note.] 

Wednesday, March 16, 1808. 

The Senate resumed the consideration of the first report of the committee appointed 
to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an 
alleged associate of Aaron Burr. 

Messrs. Harper and Key, counsel on behalf of Mr. Smith, attended. 

The memorial of the counsel on behalf of Mr. Smith was presented and read, praying 
the further hearing of this case may be postponed until the first Monday in April next, 
for reasons stated in the memorial; and 

On motion by Mr. Bradley that the consideration of the report of the committee be 
postponed to the first Monday in April next, the votes of the Senate were equally di¬ 
vided—16 in the affirmative and 16 in the negative, and the President determined the 
question in the negative. 

On motion by Mr. Bayard that the further consideration of the report of the com¬ 
mittee be postponed to the 1st day of April next, it was determined in the affirmative— 
yeas 17, nays 15. 

The yeas and nays having been required by one-fifth of the Senators present, 

Those who voted in the affirmative are Messrs. Adams, Bayard, Bradley, Gaillard, 
Giles, Goodrich, Hillhouse, Howland, Mathewson, Milledge, Pickering, Pope, Reed, 
Smith of New York, Sumter, Thruston, and White. 

Those who voted in the negative are Messrs. Anderson, Condit, Crawford, Franklin, 
Gilman, Gregg, Kitchel, Maclay, Mitchill, Moore, Parker, Robinson, Smith of Maryland, 
Smith of Tennessee, and Turner. 

[An account of the debate is found on pages 167-170 of the Annals of Congress re¬ 
ferred to in the head-note. ] 

Friday, April 1, 1808. 

The Senate resumed the consideration of the first report of the committee appointed 
to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an 
alleged associate of Aaron Burr. 

On motion by Mr. Anderson, 

Ordered, That Mr. Smith’s counsel have seats assigned them at the bar of this House. 

Mr. Harper and Mr. Key, his counsel, attended accordingly. • 

Mr. Key requested the attendance of Messrs. Davenport, Morrow, and Sturgis, mem¬ 
bers of the House of Representatives of the United States, to give evidence in the case; 
also, that a subpoena issue to General Wilkinson to attend for that purpose. 

Mr. Key proceeded to read certain depositions, taken on behalf of Mr. Smith, and 
which were objected to as not within the rule; and, 

On motion, it was agreed that the counsel on behalf of Mr. Smith should proceed in 
reading the depositions, the informality notwithstanding; and, 

After progress, 

On motion, the Senate adjourned to 10 o’clock to-morrow morning. 

[An account of the debate is found on pages 178-180 of the Annals of Congress re¬ 
ferred to in the head-note. ] 

S. Doc. 11-60 



946 


SENATE ELECTION CASES. 


Saturday April 2, 1808. 

The Senate resumed the consideration of the first report of the committee appointed 
to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an 
alleged associate of Aaron Burr. 

Mr. Harper and Mr. Key, his counsel, attended. 

The following motion was submitted by Mr. Milledge for consideration: 

‘ ‘ Resolved , That a message be sent to the House of Representatives requesting that 
Messrs. Sturgis, Davenport, and Jeremiah Morrow, members of that House, be per¬ 
mitted to attend the Senate to give evidence as to the characters of sundry witnesses 
in the case of John Smith, a Senator from the State of Ohio.” 

The counsel for Mr. Smith proceeded in reading the depositions taken on his behalf. 

After which, 

On motion, it was agreed that the consideration of the report be further postponed. 

[An account of the debate is found on pages 184, 185 of the Annals of Congress re¬ 
ferred to in the head-note. ] 

Monday, April 4, 1808. 

The Senate resumed the consideration of the first report of the committee appointed 
to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an 
alleged associate of Aaron Burr. 

Mr. Smith attended, together with Messrs. Harper and Key, counsel on his behalf, 
who proceeded in reading their depositions. 

The depositions transmitted to the Senate on behalf of Elias Glover were also read; 
after which it was agreed that the further consideration of the report be postponed until 
to-morrow. 


Tuesday, April 5, 1808. 

The Senate resumed the consideration of the first report of the committee appointed 
to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an 
alleged associate of Aaron Burr. 

Mr. Smith attended, together with Messrs. Harper and Key, counsel on his behalf, 
and the counsel proceeded in the further reading of their depositions. 

On request of Mr. Smith, Mr. Tiffin, of the Senate, Messrs. Van Rensselaer, Jere¬ 
miah Morrow, Talmadge, Bacon, and Davenport, of the House of Representatives, were 
severally sworn, and gave testimony as to the credibility of sundry witnesses whose 
depositions were read yesterday. 

Mr. Key proceeded to show cause why the report of the committee should not be 
adopted, after which it was agreed that the further consideration thereof be postponed 
until to-morrow. 

[An account of the debate, with the argument of Mr. Key, is found on pages 186-207 
of the Annals of Congress referred to in the head-note.] 

Wednesday, April 6, 1808. 

The Senate resumed the consideration of the first report of the committee appointed 
to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an 
alleged associate of Aaron Burr. 

Mr. Smith attended, together with Messrs. Harper and Key, counsel in his behalf. 

On request of Mr. Smith, Messrs. Gardenier and Russell, of the House of Representa¬ 
tives, were severally sworn, and gave testimony as to the credibility of certain witnesses 
whose depositions were read on the 4th instant; and 

Mr. Harper proceeded to show cause why the report of the committee should not be 
adopted. 

After which, 

On motion by Mr. Anderson, it was agreed that the consideration thereof be further 
postponed. 

[An account of the debate, with the argument of Mr. Harper, is found on pages 
208^234 of the Annals of Congress referred to in the head-note.] 

Thursday, April 7,1808. 

The Senate resumed the consideration of the first report of the committee appointed 
to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged 
associate of Aaron Burr; and Mr. Smith attended. 

On motion by Mr. Smith, of Maryland, 

u Resolved, That the President of the United States be requested to lay before this 
House Matthew Nimmo’s letter to him of the 28th November, 1806, and any other letter 
or letters of the said Nimmo relative to any supposed connection of John Smith, of Ohio, 


JOHN SMITH. 


947 


with the conspiracy of Aaron Burr, and also the letter of the said John Smith of Jan¬ 
uary, 1807, inclosing the deposition of himself and his son.” 

Ordered , That the Secretary lay this resolution before the President of the United 
States. 

On motion by Mr. White, it was agreed that the further consideration of the report 
be postponed until to-morrow. 

Friday, April 8, 1808. 

The following written message was received from the President of the United States 
by Mr. Coles, his secretary: 

To the Senate of the United States: 

Agreeably to the request of the Senate in their resolution of yesterday I have exam¬ 
ined my papers and find no letter from Matthew Nimmo of the date of November 28,1806, 
nor any other from him of any date but that of January 23,1807, now transmitted with 
all the papers in my possession which accompanied it. Nor do I find any letter from 
John Smith, of Ohio, bearing date at any time in the month of January, 1807. 

Having delivered to the Attorney-General all the papers respecting the conspiracy of 
Aaron Burr which came to my hands during or before his prosecution, I might suppose 
the letters above requested had been delivered to him. But I must add my belief that 
I never received such letters and the ground of it. I am in the habit of noting daily 
in the list kept for that purpose the letters I receive daily by the names of the writers 
and dates of time and place, and this has been done with such exactness that I do not 
recollect ever to have detected a single omission. I have carefully examined that list 
from the 1st of November, 1806, to the last of June, 1807, and I find no note within that 
period of the receipt of any letter from Matthew Nimmo but that now transmitted, nor 
of any one of the date of January, 1807, from John Smith, of Ohio. The letters noted 
as received from him within that period are dated at Washington, February 2, 2, 7, and 
21, which I have examined, and find relating to subjects entirely foreign to the objects 
of the resolution of the 7th instant; and others dated at Cincinnati, March 27, April 6, 
13, and 17, which not being now in my possession, I presume have related to Burr’s 
conspiracy, and have been delivered to the Attorney-General. I recollect nothing of 
their particular contents. I must repeat, therefore, my firm belief that the letters of 
Nimmo of November 28,1806, and of John Smith of January, 1807, never came to my 
hands, and that if such were written (and Nimmo’s letter expressly mentions his of No¬ 
vember 28) they have been intercepted, or otherwise miscarried. 

TH. JEFFERSON. 

April 8, 1808. 

The message and papers referred to were read, and 

Ordered, To lie for consideration. 

The Senate resumed the consideration of the first report of the committee appointed 
to inquire into the conduct of John Smith, a Senator from the State of Ohio, as an alleged 
associate of Aaron Burr. 

On motion by Mr. Franklin, it was agreed to take up the resolution reported by the 
committee, as follows: 

“ Resolved, That John Smith, a Senator from the State of Ohio, by his participation in 
the conspiracy of Aaron Burr against the peace, union, and liberties of the people of the 
United States has been guilty of conduct incompatible with his duty and station as a 
Senator of the United States, and that he be therefor, and hereby is, expelled from the 
Senate of the United States.” 

And, after debate, 

On motion by Mr. Giles, it was agreed that the further consideration thereof he post¬ 
poned until to-morrow. 

[An account of the debate, with the speech of Mr. Adams, is found on pages 236-265 
of the Annals of Congress referred to in the head-note.] 

Saturday, April 9, 1808. 

Agreeably to the order of the day the Senate resumed the consideration of the reso¬ 
lution reported by the committee appointed on the 7th of November last to consider the 
subject, to wit: 

“Resolved, That John Smith, a Senator from the State of Ohio, by his participation in 
the conspiracy of Aaron Burr against the peace, union, and 1 iberties of the people of the 
United States has been guilty of conduct incompatible wilh his duty and station as a 
Senator of the United States, and that he be therefore, and hereby is, expelled from the 
Senate of the United States.” 

And on the question to agree to the resolution, it was determined in the negative, 
two-thirds of the Senators present not concurring therein—yeas 19, nays 10. 


948 


SENATE ELECTION CASES. 


Those who voted in the affirmative are Messrs. Adams, Anderson, Condit, Craw¬ 
ford, Franklin, Gaillard, Gilman, Gregg, Kitchel, Maelay, Mathewson, Milledge, 
Moore, Robinson, Smith of Maryland, Smith of Tennessee, Sumter, Tiffin, and 
Turner. 

Those who voted in the negative are Messrs. Giles, Goodrich, Hillhouse, Howland, 
Pickering, Pope, Reed, Smith of New York, Thurston, and White. 

[An account of the debate, with the speech of Mr. Hillhouse, is found on pages 
265-324 of the Annals of Congress referred to in the head-note.] 



HENRY M. RTCE. 


949 


[Thirty-fifth Congress—First session.] 

HENRY M. RICE, 

Senator from Minnesota from May 12, 1858, till March 3,1863. 

May 12,1858, the credentials of Mr. Rice were presented, and he took his seat in the Senate. On 
the same day the following resolution was submitted by Mr. Harlan, of Iowa, for consideration: 
“ Resolved , That a committee be appointed to investigate the allegation of fraud and extortion 
made against Henry M. Rice as agent of the Secretary of War in the sale of the Fort Crawford 
reservation, by settlers on said reservation, and that said committee have power to send for persons 
and papers.” This resolution was amended so that the Committee on Military Affairs were in¬ 
structed to make the investigation. That committee reported June 9,1858, that “ after an examina¬ 
tion of all the testimony adduced, they do not find that it sustains any allegation which imputes 
criminality to, or arraigns the integrity of Mr. Rice, and finding nothing in the developments of 
the investigation which, in the opinion of the committee, tend to disqualify him for a seat in the 
Senate, they herewith submit the record in the case as a part of this report, and ask to be dis¬ 
charged from the further consideration of the subject.” The report was unanimously agreed to. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from the Senate Journal, 1st sess. 35th Cong., which includes the report of the committee. 

The debates on the case, which are very brief, are found on pages 2075-2079,2123,2163 of the Con¬ 
gressional Globe, part 3,1st sess. 35th Cong. The record accompanying the report of the committee 
is found in Senate Reports, 1st sess. 35th Cong., vol. 2, No. 314. 


Wednesday, May 12, 1858. 

Mr. Toombs presented the credentials of the Hon. Henry M. Rice, elected a Senator by 
the legislature of the State of Minnesota; which were read. 

The oath prescribed by law was administered to the Hon. Henry M. Rice, and he took 
his seat in the Senate. 

* * # * * # * 

Mr. Harlan submitted the following resolution for consideration: 

‘ ‘ Whereas the settlers on Fort Crawford reservation, in the State of Iowa, allege that 
they have been defrauded by Mr. Henry M. Rice, as agent of Hon. John B. Floyd, Sec¬ 
retary of War, in the sale of their claims as settlers on said reservation, viz: 

“ 1. That said Secretary of War instructed said Henry M. Rice to sell to thesettlers on 
said reservations their claims at one dollar and twenty-five cents per acre; that said Rice 
required said settlers to pay for their claims at the rate of one dollar and fifty cents per 
acre, and receipted to them, on the payment of said one dollar and fifty cents per acre, 
for but one dollar and twenty-five cents per acre, and refused to receipt to them for the 
remaining twenty-five cents per acre received of them by him, as aforesaid. 

“2. That sundry cases in which settlers applied to said Rice for leave to enter their said 
claims, he referred them to his clerk, who charged them fees, varying from ten to eighty 
dollars each, in addition to the said one dollar and fifty cents per acre, for leave to pur¬ 
chase their said claims; that these fees were charged and received by said Rice corruptly, 
and, said settlers believe, through the interposition of his clerk. 

“ 3. That said Rice negligently failed to givesaid settlers reasonable notice of the time 
of said sale, and thereby subjected them to the necessity of borrowing money at enor¬ 
mous rates of interest with which to purchase their said claims. 

“ 4. That said Rice defrauded one of said settlers of his rights to purchase his claim 
under the instruction of the Secretary of War, by surreptitiously securing from him a 
quit-claim to a part of the land embraced in said claim: Therefore, 

“ Resolved , That a committee be appointed to investigate the allegation of fraud and 
extortion made against Henry M. Rice, as agent of the Secretary of War, in the sale of 
the Fort Crawford reservation, by settlers on said reservation, and that said committee 
have power to send for persons and papers.” 


Friday, May 14, 1858. 

Mr. Rice submitted the following resolution for consideration: 

“ Resolved , That a select committee, to consist of five members, be appointed to inves¬ 
tigate the charges preferred by certain citizens of Iowa, settlers upon the Fort Crawford 
reserve, as to the conduct of Henry M. Rice, special agent, appointed by the Secretary 
of War, to superintend the sale of that reserve; that said committee have power to send 
for persons and papers and to report by bill or otherwise.” 


950 


SENATE ELECTION CASES. 


Saturday, May 15, 1858. 

The Senate proceeded to consider the resolution yesterday submitted by Mr. Rice; 
and having been amended, the resolution was agreed to, as follows: 

‘‘Resolved, That the Committee on Military Affairs and the Militia be instructed to 
investigate the charges preferred by certain citizens of Iowa, settlers upon the Fort Craw¬ 
ford reserve, as to the conduct of Henry M. Rice, special agent, appointed by the Secre¬ 
tary of War, to superintend the sale of that reserve; that said committee have power to 
send for persons and papers and to report by bill or otherwise.’’ 

Wednesday, June 9, 1858. 

[The committee consisted of Messrs. Davis (chairman), Fitzpatrick, Johnson of Ar¬ 
kansas, Iverson, Broderick, Wilson, and King.] 

Mr. Davis, from the Committee on Military Affairs and the Militia, to whom was 
referred the resolution of the Senate of the 15th ultimo, to inquire into certain charges 
made by citizens of Iowa against the Hon. Henry M. Rice, a Senator from Minnesota, 
reported: 

That, under the authority of the resolution, they procured from the War Depart¬ 
ment, and elsewhere, papers exhibiting the facts in the case, and had before them 
twenty-two witnesses, who testified under oath as to the allegations made against Mr. 
Rice; and, after an examination of all the testimony adduced, they do not find that it 
sustains any allegation which imputes criminality to, or arraigns the integrity of, Mr. 
Rice, and finding nothing in the developments of the investigation which, in the opin¬ 
ion of the committee, tend to disqualify him for a seat in the Senate, they herewith 
submit the record in the case as a part of this report and ask to be discharged from the 
further consideration of the subject. 

The Senate proceeded, by unanimous consent, to consider the report; and the report 
was unanimously agreed to. 

Ordered, That the report (No. 314) be printed. 


JEFFERSON DAVIS AND OTHERS. 


951 


JEFFERSON DAVIS and ALBERT G. BROWN, 

of Mississippi. 

STEPHEN R. MALLORY and DAVID L. YULEE, 

of Florida. 

0. 0. OLAY and BENJAMIN FITZPATRICK, 

of Alabama. 

ROBERT TOOMBS, 
of Georgia . 

JUDAII P. BENJAMIN, 
of Louisiana. 


January 22, 1801, a motion was submitted that the Journal be so corrected as to record the fact 

that Messrs. Davis. Mallory, Yulee, Clay, and Fitzpatrick had announced that the States from which 
they were Senators, respectively, had seceded, and that they thereupon withdrew from the Senate. 
A motion was offered as an amendment that these names “be stricken from the list of Senators." 
It was ordered that both motions lie on the table. March 13, 1861, a resolution was submitted that 
Messrs. Brown, Davis, Mallory, Clay, Toombs, and Benjamin having withdrawn from the Senate, 
“their seats in this body have thereby become vacant.” (Certain other Senators had withdrawn 
during the previous session aud their terms of office had expired March 3, 1861. See foot notes.) 
The following day the Senate resolved that the seats of these members having become vacant, “the 
Secretary be directed to omit their names, respectively, from the roll.” 

The history of the cases here given consists of a transcript of the proceedings of the Senate relating 
. to them from Senate Journal, second sess. Thirtv-sixth Cong. 

Special references to the debates are inserted Wow. 


[Second session of the Thirty-sixth Congress.] 

Tuesday, January 22, 1861. 

The Vice-President stated that no notice had been taken in the Journal of the with¬ 
drawal 4 from the Chamber on yesterday, and that no paper had been filed with the 
presiding officer by those Senators notifying him that they had withdrawn from the 
Senate; and that he would like some instruction as to what vacancies exist in the 
committees, and whether the names of those Senators should continue to be called 
in taking the yeas and nays. 

Mr. Benjamin submitted the following motion: 

Ordered , That the Journal of the proceedings of the Senate be so corrected as to 
record the fact that the Senators from the States of Florida and Alabama, and the 
Hon. Jefferson Davis, Senator of the State of Mississippi, made announcement that 
the said States of Florida, Alabama, and Mississippi h:ul seceded from the Union, 
had resumed the powers delegated by the said several States to the United States of 
America, and that they, the said Senators, considered themselves by reason of said 
action of said States as being no longer entitled to retain their seats as Senators, and 
accordingly thereupon withdrew from the Senate. 

The Senate proceeded to consider the said motion; and 

On motion by Mr. Douglas to amend the same by striking out all after the word 
“ordered,” and in lieu thereof inserting: 

“That Jefferson Davis of Mississippi, Stephen R. Mallory and David L. Yulee of 
Florida, C. C. Clay anti Benjamin Fitzpatrick of Alabama, having announced to the 
Senate their withdrawal from the same, 

* The remarks of the Senators ou their withdrawal are found on pages 484-487 of the Congressional 
Globe, part 1, 2d sesa. 36th Cong. 





952 


SENATE ELECTION CASES. 


“ Ordered, That their names be stricken from the list of Senators, and the Secretary 
directed no longer to call the same." 

After debate, 

On motion by Mr. Seward that the motion of Mr. Benjamin and the proposed 
amendment lie on the table, 

Mr. Benjamin raised a question of order, to wit: Whether it was in order to move 
to lay upon the table a motion to correct the Journal of the Senate of the preceding 
day; and 

The Vice-President decided that the motion was in order; and 

On the question to agree to the motion of Mr. Seward, it was determined in the 
affirmative—yeas 32, nays 22. 

On motion by Mr. Seward, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Anthony, Baker, Bigler, Bingham, 
Chandler, Clark, Collamer, Crittenden, Dixon, Doolittle, Durkee, Fessenden, Fitch, 
Foot, Foster, Grimes, Gwin, Hale, Harlan, Johnson of Tennessee, King, Latham, Mor¬ 
rill, Saulsbury, Seward, Simmons, Sumner, Ten Eyck, Thomson, Wade,Wilkinson, and 
Wilson. 

Those who voted in the negative are Messrs. Benjamin, Bragg, Bright, Clingman, 
Douglas, Green, Hemphill, Hunter, Iverson, Johnson of Arkansas, Kennedy, Lane, Ma¬ 
son, Nicholson, Pearce, Polk, Powell, Rice, Sebastian, Slidell, Trumbull, and Wigfall. 

So it was 

Ordered, That the motion of Mr. Benjamin, and the proposed amendment, lie on 
the table. 

[The debate is found on pages 500-505 of the Congressional Globe, part 1, 2d sess. 
36th Cong.] 


[Special session of Senate, March, 1861.] 

Wednesday, March 13, 1861. 

Mr. Fessenden submitted the following resolution for consideration: 

“Resolved, That Albert G. Brown and Jefferson Davis of Mississippi, Stephen R. 
Mallory of Florida, Clement C. Clay, jr., of Alabama, Robert Toombs of Georgia, and 
Judah P. Benjamin of Louisiana, having announced* that they are no longer mem¬ 
bers of the Senate, and having withdrawn therefrom, their seats in this body have 
thereby become vacant, and the Secretary is directed to strike their names from the 
roll of members." 


Thursday, March 14, 1861. 

On motion by Mr. Fessenden that the Senate proceed to the consideration of the 
resolution yesterday submitted by him, declaring the seats of certain Senators vacant, 
and directing the Secretary to strike their names from the roll of the Senate, it was 
determined in the affirmative—yeas 26, nays 13 

On motion by Mr. Douglas, the yeas and nays being desired by one-fifth of the 
Senators present, 

Those who voted in the affirmative arc Messrs. Anthony, Bingham, Chandler, Clark, 
Collamer, Cowan, Doolittle, Fessenden, Foot, Foster, Grimes, Hale, Harlan, Harris, 
Howe, King, Lane, Morrill, Simmons, Sumner, Ten Eyck, Thomson, Trumbull,Wade, 
Wilkinson, and Wilson. 

Those who voted in the negative are Messrs. Breckinridge, Bright. Clingman, 
Douglas, Hunter, Latham, Mason, Mitchel, Nesmith, Nicholson, Polk, Powell, and 
Rice. 

So the motion was agreed to; and the Senate proceeded to consider the said reso 
lution; and 

The resolution having been modified, on the motion of Mr. Fessenden, to read as 
follows: 

“Resolved, That Albert G. Brown and Jefferson Davis of Mississippi, Stephen R. 
Mallory of Florida, Clement C. Clay, jr., of Alabama, Robert Toombs of Georgia, and 
Judah P. Benjamin of Louisiana, having announced that they are no longer members 
of the Senate, and having withdrawn therefrom, their seats in this body have thereby 
become vacant, and the Secretary is directed to omit their names from the roll of 
members;" 

On motion by Mr. Bayard to amend the resolution by striking out all after the 
word “resolved," and in lieu thereof inserting: 

“That Albert G. Brown and Jefferson Davis of Mississippi, Stephen R. Mallory of 
Florida, Clement C. Clay, jr., of Alabama, Robert Toombs of Georgia, and Judah P. 

♦For announcement of Mr. Brown, see page 352 of the Congressional Globe, part 1, 2d sess. 36th 
Cong.; for that of Mr. Benjamin, see page 721, 722, lb. The terms of Messrs. Yulee, Fitzpatrick, 
Iverson, and Slidell, who had withdrawn from the Senate during the past session, had expired March 
3, 1861. For announcement of withdrawal by Mr. Iverson, see page 589 of the Congressional Globe 
part 1, lid sess. 3Gth Cong.; for that by Mr. Slidell, see pages 720, 721, lb. 









JEFFERSON DAVIS AND OTHERS. 


953 


Benjamin of Louisiana, having announced that by the secession of their respective 
States they were no longer members of the Senate, and withdrawn therefrom, the 
Secretary is directed to omit their names in calling the roll of the Senate,” 

It was determined in the negative—yeas 12, nays 26. 

On motion by Mr. Bayard, the yeas and nays being desired by one-fifth of the Sena¬ 
tors present, 

Those who voted in the affirmative are Messrs. Bayard, Breckinridge, Bright, 
Clingman, Hunter, Mason, Mitcliel, Nicholson, Polk, Powell, Rice, and Thomson. 

Those who voted in the negative are Messrs. Anthony, Baker, Bingham, Chandler, 
Clark, Collamer, Cowan, Doolittle, Douglas, Fessenden, Foot-, Foster, Grimes, Harlan, 
Harris, Howe, King, Lane, Morrill, Simmons, Sumner, Ten Eyck, Trumbull, Wade, 
Wilkinson, and Wilson. ’ J ' 

After debate, 

On motion by Mr. Collamer that the Senate proceed to the consideration of executive 
business, it was determined in the affirmative; and after the consideration of execu¬ 
tive business, the doors were opened. 

The Senate resumed the consideration of the resolution of Mr. Fessenden; and 

The resolution having been further modified, on the motion of Mr. Clark, to read 
as follows: 

“ Whereas the seats of Albert G. Brown and Jefferson Davis of Mississippi, Stephen 
R. Mallory of Florida, Clement C. Clay, jr., of Alabama, Robert Toombs of Georgia, 
and Judah P. Benjamin of Louisiana, as members of the Senate, have become vacant: 
Therefore, 

li Resolved , That the Secretary be directed to omit their names, respectively, from 
the roll,” 

On motion by Mr. Mason to amend the resolution by striking out all after the word 
“ resolved,” and in lieu thereof inserting: 

“That Albert G. Brown and Jefferson Davis of Mississippi, Stephen R. Mallory of 
Florida, Clement C. Clay, jr., of Alabama, Robert Toombs of Georgia, and Judah P. 
Benjamin of Louisiana, having ceased to be members of the Senate, the Secretary be 
directed to omit their names from the roll,” 

It was determined in the negative—yeas 10, nays 24. 

On motion by Mr. Mason, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Breckinridge, Bright, Clingman, 
Hunter, Mason, Mitchel, Nicholson, Polk, Powell, and Rice. 

Those who voted in the negative are Messrs. Anthony, Bingham, Chandler, Clark, 
Collamer, Cowan, Doolittle, Fessenden, Foot, Foster, Harris, Howe, Johnson, King, 
Lane, Morrill, Nesmith, Simmons, Sumner, Ten Eyck, Trumbull, Wade, Wilkinson, 
and Wilson. 

No further amendment being proposed, 

On the question to agree to the resolution as modified on the motion of Mr. Clark, 
it was determined in the affirmative. 

So the resolution was agreed to. 

[The debate is found on pages 1454-1456 of the Congressional Globe, part 2, 2d seas. 
36th Cong.] 


954 


SENATE ELECTION CASES. 


[Thirty-sixth Congress—Second session.] 

LOUIS T. WIGFALL, 

Senator from Texas from January 4, 1860, till July 11,1861, when he was 

expelled. 

March 8,1861, a resolution was submitted that Mr. Wigfall be expelled from the Senate. The 
preamble stated that he had declared in debate that he was a foreigner; that he owed no alle¬ 
giance to this Government; but that he belonged to and owed allegiance to another and foreign 
state and government. March 11, the following resolution was moved as an amendment: “Whereas 
it is understood that the State of Texas has seceded from the Union, and is no longer one of the 
United States : Therefore, Resolved , That she is not entitled to be represented in this body.” After 
brief debate the resolution and amendment were referred, March 12, to the Committee on the Ju¬ 
diciary, by whom they were not reported. Extracts from remarks given below will show the facts 
and arguments presented in support of the two resolutions. 

In the next session of Congress, Mr. Wigfall was expelled by resolution of July 11, 1861 (see page 
741). 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journal, 2d sess. 36th Cong.; with extracts from remarks of Messrs. Foster and 
Clingman. 

The debate in the case is found on pages 1447-1451 of the Congressional Globe, part 2, 2d sess. 36th 
Cong. 


Fbiday, March 8, 1861. 

Mr. Foster submitted tbe following resolution for consideration: 

“Whereas L. T. Wigfall, now a Senator of the United States from the State of Texas, 
has declared in debate that he is a foreigner; that he owes no allegiance to this Govern¬ 
ment, but that he belongs to and owes allegiance to another and foreign state and gov¬ 
ernment: Therefore, 

“ Resolved, That the said L. T. Wigfall be, and he hereby is, expelled from this 
body.” 


Monday, March 11, 1861. 

On motion by Mr. Foster, the Senate proceeded to consider the resolution submitted 
by him, the 8th instant, to expel the Hon. L. T. Wigfall from the Senate; and, 

On motion by Mr. Clingman, to amend the resolution by striking out all after the 
word “whereas, ” and in lieu thereof inserting: 

“It is understood that the State of Texas has seceded from the Union, and is no longer 
one of the United States: Therefore 

‘ ‘ Resolved , That she is not entitled to be represented in this body. ’ ’ 

Pending debate, 

On motion by Mr. Clark that the Senate proceed to the consideration of executive 
business, it was determined in the affirmative—yeas 28, nays 16. 

Tuesday, March 12, 1861. 

The Senate resumed the consideration of the resolution submitted by Mr. Foster, the 
8th instant, to expel the Hon. L. T. Wigfall from the Senate; and, 

On motion by Mr. Simmons, 

Ordered , That the resolution, with the amendment submitted by Mr. Clingman, be 
referred to the Committee on the Judiciary. 

[Extract made from remarks made in the Senate, March 11,1861, by Mr. Foster, of Connecticut, in 
support of the resolution submitted by him, taken from pages 1447,1448 of the Congressional Globe 
referred to in the head-note.] 

“I have but very few words to say, Mr. President, either in regard to the resolution 
or the substitute. I do not propose, at least at present, to enter into any lengthened 
discussion either of the one or the other; and it is proper, perhaps, that I should state 
that I have offered the resolution without consultation with my political friends. It is en¬ 
tirely on my own independent responsibility that it is proposed to the body. I have thus 
offered it without consultation with my political friends; not becausel do not need, as 
much as any one, advice and aid from them, nor because I am not, on proper occasions 
a party man, but because I was desirous of presenting this question to the Senate alto¬ 
gether unconnected with party interests, and stripped, so far as possible, of all party 
considerations. I shall not, therefore, call upon any member of the Senate, on one side 
of the Chamber or the other, to support it; and I ask no member for his support of it; 
but beg every one to pass upon its naked merits. If it has merits, Senators of course will 


LOUIS T. WIGFALL. 


955 


vote for it on their own view of those merits. If it has no merits, I trust I should be as 
far any member of the body from desiring to press it through on any party or political 
grounds. The priviliges of a seat in this body are certainly of too high a character to be 
involved in any matter of party, and I should hope that in the consideration and in the 
decision of this question we shall rise above all such views, and discuss it and determine 
it upon far more elevated grounds. 

‘ ‘ The Constitution provides for the qualification and the manner of the election of 
members of this body. It provides, in the third section of the first article, that each 
State shall be entitled to two Senators; and, in other parts of the instrument, provision 
is made in respect to the necessary age, to be not less than thirty years; that no person 
shall be eligible who has not been nine years a citizen of the United States; and, finally, 
it provides that Senators, like other officers, executive and judicial, of the United States, 
shall take an oath or affirmation to support the Constitution. 

“These are substantially the requirements of the Constitution in regard to members 
of this body; and I take it it is implied that a Senator of the United States shall owe 
allegiance to the United States; that this shall be his country; that he shall either be a 
native-born or a naturalized citizen; and that, if not native-born, he shall have been at 
least nine years a citizen before he is eligible as a member; clearly manifesting the idea 
that a man shall become thoroughly American in thought and feeling before holding a 
seat in this body. 

“It is not, however, on any technical grounds, as I suppose, as to citizenship, that 
the Senator from Texas is obnoxious to objection. I suppose he was a native-born citizen 
of the United States, and I suppose he was duly elected a member of this body; and I 
do not suppose that when he spoke of himself as a foreigner he meant that he was bom 
out of the jurisdiction of the country, but that he had another meaning in his mind, 
which he probably would define more readily and perfectly than I could. Still, Mr. 
President, it seems to me that this body owes it to itself not to allow members to sit 
here who avow that they are foreigners, who avow that they owe no allegiance to this 
Government, who avow that they belong to a foreign government; and if that govern¬ 
ment happens to be in arms against this Government, attacking its troops, seizing its 
property, expelling from its territory officers and soldiers of the United States by force, 
tearing down and trampling in the dust the national flag, treating with scorn and con¬ 
tempt every emblem of our country’s authority and power, there may be additional rea¬ 
sons why such avowals and declarations should not be passed idly by. What, beside 
entire contempt of the body, do such declarations indicate, uttered on the floor of the 
Senate ? 

‘ ‘ I felt it due to myself, as a member of this body, that we should inquire and decide 
whether it was consistent with our duty as members of the Senate of the United States 
to allow one so circumstanced, and avowing such feelings and opinions, longer to hold a 
seat here. I scarcely need say that I have no personal feeling on the subject. I can say 
with entire truth that so far as my personal relations with the Senator from Texas are 
concerned they have been entirely kind and friendly. I stated that this was not a party 
question, so it certainly is not a personal question, and I certainly shall endeavor to pre¬ 
vent its becoming one. If other members of the body think that it is right and proper 
for a man avowing these opinions to continue to sit here, I shall have done my duty, and 
shall feel relieved from a responsibility which I felt pressing upon me previously to offer¬ 
ing the resolution. I could not, as it seemed to me, discharge my duty without offering 
it, and presenting the question distinctly to the decision of the Senate. 

“The Senator from North Carolina has suggested a substitute for the resolution; and 
the question, I suppose, is first on the substitute. The substitute assumes the right of a 
State to secede from the Union, and it assumes that the State of Texas has seceded, and 
therefore, as a logical inference, that she is no longer entitled to representation in this 
body. I must be so unfortunate, if it be unfortunate, as to differ from the Senator from 
North Carolina in regard to the whole theory of our Constitution and Government. I 
do not believe that any State of this Union has any right, any power, under the Consti¬ 
tution, to secede, to take itself out of the Union of these States, which go to make up 
the United States of America. I differ widely and radically from all who entertain any 
such view of our Constitution and Government as that, and it appears to me to be a 
claim altogether monstrous. That this Government is one of power and authority; that 
no State in this Confederacy has any right, under the Constitution, to go out and cease to 
be a member of this Federal Union, is a proposition which is to me as clear as anything 
can be which is not absolutely self-evident. I am not, however, about to enter into an 
argument on the question. I am persuaded that if I were to endeavor to convince gen¬ 
tlemen who entertain the opposite view, and many do, whose opinions perhaps ought to 
be more weighty than mine, I should not be able to succeed in convincing them of their 
error. We entertain so precisely opposite and antagonistic views of law and Govern¬ 
ment and our Constitution, that any argument of mine or any reasoning of mine would 
be wholly lost upon them, as I am free to say theirs would be on me. We might just 


956 


SENATE ELECTION CARES. 


as well reason with each other in a foreign language, which the one understood and the 
other did not, and we should succeed just as well in convincing each other of our error 
on the one side and of the correctness of the opposite opinion. ’ ’ 

[Extract from remarks made in the Senate, March 11,1861, by Mr. Clingman, of North Carolina, 
against the adoption of the resolution submitted by Mr. Foster, taken from pages 1448,1449 of the 
Congressional Globe referred to in the head-note.] 

‘ ‘ Mr. President, I think the Senator from Connecticut has made a very good argu¬ 
ment against his own resolution. If his argument be true, I think it is concluoive that 
his resolution ought not to be adopted; but there is a misunderstanding, perhaps, be¬ 
tween us in relation to the facts. If we are to credit the newspapers, the State of Texas 
has called a convention, and that convention has passed an ordinance of secession, and 
submitted it to the people, and it has been ratified, it is stated, by a very large vote. 
That is the opinion entertained by the Senator from Texas, and it is my opinion about 
the facts, and probably the opinion of most gentlemen here. If that be true, and that 
be a valid act, and the State of Texas be no longer one of the United States, clearly my 
resolution is proper enough, and not the resolution of the Senator. When we decide for 
any cause of law or fact that a person upon this floor, claiming to be a Senator, is not 
entitled to a seat here, he is never expelled. How was it when, a few years ago, the 
Senate decided that a Senator from Iowa, who claimed a seat, was not entitled ? Did 
anybody propose to expel him ? Repeatedly the Senate and House of Representatives 
have decided that those who came here and attempted to act as members of the body 
were not entitled to seats; but nobody ever thought of expelling them on that ground. 

‘ ‘ I need not, I am sure, dilate on this point of view; for I take it for granted the Sen¬ 
ator agrees with me that if the State of Texas has in fact ceased to be one of the United 
States we should simply say so, and declare that she is not longer entitled to be repre¬ 
sented. But the Senator argues that this act is invalid. Take it to be true; suppose 
Texas has no right, no power, to secede, and in fact has not seceded: then the Senator 
before me [Mr. Wigfall] is entitled to be here as a member of the body, unless you argue 
that his erroneous opinion upon that fact disqualifies him. Now, let us look at it for a 
moment. The Senator from Texas thinks that his State has seceded, and that he is no 
longer a Senator. That is his opinion as a matter of constitutional law. The Senator 
from Connecticut, on the other side, says that he is mistaken in that point. Well, sir, 
was it ever pretended that you would expel a Senator for a mistake upon a legal ques¬ 
tion? I ask Senators all around, was it ever maintained, that because a Senator differed 
with a majority upon a constitutional question, however important, that was a reason 
for expelling him from the body ? I do not think so. The Senate may overrule him; 
they may take such action as to show him that in their judgment he is mistaken, and 
then he may feel bound to conform to their action, and may do so. 

‘ ‘ The Senator from Connecticut says that secession is a monstrous idea. I admit that 
you might expel a Senator, perhaps, for having some monstrous idea, which showed that 
he was not capable of acting as one of the body. If, for example, a Senator were to en¬ 
tertain the opinion that the moon was made of green cheese, or some other absurdity, 
we might come to the conclusion that he had not intellect enough to act upon this floor 
as a Senator, and that therefore he ought to be driven off it; but will anybody pretend 
that this opinion of my friend from Texas stands in that category? Have not twenty 
Senators, perhaps, during the past session, declared on this floor that they entertained 
that very idea? The whole State of Virginia, I believe, “the mother of States and of 
statesmen,” as she is called, almost without division of opinion, has always maintained 
that position. Without knowing what either of the Senators from Virginia would say, 
I take it for granted they both agree with the Senator from Texas. 

“ If it is an error, therefore, on his part, to believe that a State has a right to secede, 
and you can expel him for that reason, why not expel the Virginia Senators; why not 
expel the others who have expressed that opinion; and especially, why not expel those 
gentlemen who have declared it and gone away? Why is it that their names are called 
from time to time as Senators in this body? They have avowed the same opinion in 
quite as strong language as my friend from Texas, and they have acted upon it and gone 
away, and left us sometimes without a quorum, shown an utter defiance and disregard 
of the opinions which the Senator from Connecticut avows. Why not extend it to them ? 

“ But the Senator alludes to the fact that the State of Texas has taken possession of 
some of the public property, and perhaps expelled the armies of the United States. Is 
that a sufficient reason for expelling her representatives here ? If that be a good reason, 
it applies with more force to the other States. I ask that Senator how it is that he allows 
the name of Jefferson Davis to be called here, and makes no motion to expel him ? He 
claims to be the head of a foreign government. Not only has his State seceded; not only 
has he advised taking possession of the forts; but he is the commander-in-chief of the 
army and the president of another republic, and yet he is a “marvelously proper” Sen¬ 
ator; there is no motion made to expel him. I should like to know upon what principle 
it ia.” 




JAM Jib M. MASON AND OTHEiiS, 


957 


[Thlrty-seTentli Congress —First session.} 

JAMES M. MASON and ROBERT M. T. HUNTER, 

of Virginia . 

THOMAS L. CLINGMAN and THOMAS BRAGG, 

of North Carolina. 

JAMES CHESTNUT, Jr., 
of South Carolina. 

A. O. P. NICHOLSON, 

of Tennessee. 

WILLIAM K. SEBASTIAN and CHARLES B. MITCHEL, 

of-Arkansas. 

JOHN HEMPHILL and LOUIS T. WIGFALL, 

of Texas. 


July 10,1861, a resolution was submitted that Messrs. Mason, Hnnter, Clingman, Bragg, Chestnut, 
Nicholson, Sebastian,* Mitchel, Hemphill, and Wigfall be “expelled from the Senate.” The pream¬ 
ble stated that it was “ apparent that these Senators were engaged in the conspiracy for the destruc¬ 
tion of the Union, or, with full knowledge of the conspiracy, had failed to advise the Government 
of its progress, or aid in its suppression.” The following day the resolution was agreed to. 


Wednesday, July 10, 1861. 

Mr. Clark submitted the following resolution for consideration: 

“Whereas a conspiracy has been formed against the peace, union, and liberties of 
the people and Government of the United States, and in furtherance of such con¬ 
spiracy a portion of the people of the States of Virginia, North Carolina, South 
Carolina, Tennessee, Arkansas, and Texas have attempted to withdraw those States 
from the Union, and are now in arms against the Government; and 

“'Whereas James M. Mason and Robert M. T. Hunter, Senators from Virginia; 
Thomas L. Clingman and Thomas Bragg, Senators from North Carolina; James 
Chestnut, jr., a Senator from South Carolina; A. O. P. Nicholson, a Senator from 
Tennessee; William K. Sebastian* and Charles B. Mitchel, Senators from Arkansas; 
and John Hemphill and Louis T. Wigfall, Senators from Texas, have failed to appear 
in their seats in the Senate, and to aid the Government in this important crisis, and 
it is apparent to the Senate that said Senators are engaged in said conspiracy for 
the destruction of the Union and Government, or with full knowledge of such con¬ 
spiracy have failed to advise the Government of its progress or aid in its suppression: 
Therefore, . 

“ Resolved, That the said Mason, Hunter, Clingman, Bragg, Chestnut, Nicholson, 
Sebastian, Mitchel, Hemphill, and Wigfall be, and they hereby are, each and all of 
them, expelled from the Senate of the United States.” 

Thursday, July 11, 1861. 

On motion by Mr. Clark, the Senate proceeded to consider the resolution yesterday 
submitted by him to expel certain Senators from the Senate of the United States. 

On motion by Mr. Latham to amend the resolution by inserting before the word 

♦This preamble and resolution was revoked and annulled, so far as Mr. Sebastian was concerned, 
by resolution of the Senate, March 3, 1877. See report No. 513,1st seas. 44th Cong. The same reso¬ 
lution provided for settling the unpaid accounts of Mr. Sebastian. 




958 


SENATE ELECTION CASE? 


“said,” in the second line, the words “names of,” and by striking ont the words 
“expelled from the Senate of the United States,” and inserting “ stricken from the 
roll, and their seats declared vacant,” so that the resolution will read: 

“ Therefore, lesolved, That the names of said Mason, Hunter, Clingman, Bragg, 
Chestnut, Nicholson, Sebastian, Mitchel, Hemphill, and Wigfall be, and they hereby 
are, each and all of them, stricken from the roll, and their seats declared vacant,” 

It was determined in the negative—yeas 11, nays 32. 

On motion by Mr. Latham, the yeas and nays being desired by one-fifth of the 
Senators present, 

Those who voted in the affirmative are Messrs. Bayard, Breckinridge, Bright, 
Johnson of Tennessee, Johnson of Missouri, Latham. Nesmith, Polk, Powell, Rice, 
and Saulsbury. 

Those who voted in the negative are Messrs. Anthony, Bingham, Browning, Chan¬ 
dler, Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, 
Hale, Harlan, Harris, Howe, King, Lane of Indiana, Lane of Kansas, McDougall, 
Morrill, Pomeroy, Sherman, Simmons, Sumner, Ten Eyck, Trumbull, Wade, Wilkin¬ 
son, Wilmot, and Wilson. 

So the amendment proposed by Mr. Latham was not agreed to. 

On the question to agree to the resolution, it was determined in the affirmative— 
yeas 32, nays 10. 

On motion by Mr. Clark, the yeas and nays being desired by one-fifth of the Sen¬ 
ators present, 

Those who voted in the affirmative are Messrs. Anthony, Bingham, Browning, 
Chandler, Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, 
Grimes, Hale, Harlan, Harris, Howe, King, Lane of Indiana, Lane of Kansas, 
McDougall, Morrill, Pomeroy, Sherman, Simmons, Sumner, Ten Eyck, Trumbull, 
Wade, Wilkinson, Wilmot, and Wilson. 

Those who voted in the negative are Messrs. Bayard, Breckinridge, Bright, John¬ 
son of Tennessee, Johnson of Missouri, Latham, Nesmith, Polk, Powell, and Rice. 

So the resolution was agreed to, two-thirds of the Senators present having voted 
in the affirmative; and it was 

“ Therefore, resolved, That the said Mason, Hunter, Clingman, Bragg, Chestnut, 
Nicholson, Sebastian, Mitchel, Hemphill, and Wigfall be, and they hereby are, each 
and all of them, expelled from the Senate of the United States.” 

[The debate is found on pages 62-64 of the Congressional Globe, 1st sess. 37th 
Cong.l 





JOHN C. BRECKINRIDGE* 


959 


[Thirty seventh Congress—Second session.] 

JOHN 0. BRECKINRIDGE, 

Senator from Kentucky from March 4, 1861, till December 4, 1861, when 

he was expelled. 

December 4, 1861, a resolution was submitted that John C. Breckinridge be expelled from the Sen¬ 
ate. It was amended by a preamble stating that he “had joined the enemies of his country,” and 
was agreed to. 

The history of the case here given consists of a transcript of the proceedings of the Senate in rela¬ 
tion thereto from the Journal of the Senate, 2d seas. 37th Cong. 

Wednesday, December 4, 1861. 

Mr. Chandler submitted the following resolution for consideration: 

“Resolved , That John C. Breckinridge be, and he hereby is, expelled from the Sen¬ 
ate.” 

The Senate proceeded, by unanimous consent, to consider the resolution; and the 
same having been amended, on the motion of Mr. Trumbull, to read as follows: 

“ Whereas John C. Breckinridge, a member of this body from the State of Ken¬ 
tucky, has joined the enemies of his country, and is now in arms against the Gov¬ 
ernment he had sworn to support: Therefore, 

“ Resolved, That said John C. Breckinridge, the traitor, be, and he hereby is, 
expelled from the Senate.” 

On the question to agree to the resolution as amended, it was determined in the 
affirmative—yeas 37, nays none. 

On motion by Mr. Trumbull, the yeas and nays being desired by one-fifth of the 
Senators present, 

Those who voted in the affirmative are Messrs. Anthony, Browning, Carlile, 
Chandler, Clark, Collamer, Cowan, Dixon, Doolittle, Fessenden, Foot, Foster, 
Grimes, Hale, Harlan, Harris, Howe, Kennedy, King, Lane of Indiana, Lane of 
Kansas, Latham, McDougall, Morrill, Nesmith, Pomeroy, Rice, Sherman, Simmons, 
Sumner, Ten Eyck, Thompson, Trumbull, Wade, Wilkinson, Wilinot, and Wilson. 

So the resolution as amended was agreed to, two-thirds of the Senators present 
having voted in the affirmative. 

Thursday, December 5, 1861. 

Mr. Rice stated that he was not in the Chamber yesterday when the vote was 
taken upon the resolution expelling John C. Breckinridge from the Senate, and 
asked unanimous consent to be allowed to have his vote recorded in the affirmative 
upon that question. 

Whereupon, 

It was unanimously agreed that the name of Mr. Rice be entered upon the list of 
yeas and nays among those who voted in the affirmative upon the passage of the sai<l 
resolution. 


960 


SENATE ELECTION CASES. 


[Thirty-seventh Congress—Second session. ] 

TRUSTEN POLK, 

Senator from Missouri from March 4, 1857, till January 10, 1862. 

December 18,1861, the following resolution was submitted, and referred to the Committee on the 
Judiciary: Resolved, That Trusten Polk, of Missouri, now a traitor to the United States, be ex¬ 
pelled and he hereby is expelled from the Senate.” January 9, 1862, the committee reported that 
it appeared to their satisfaction that Trusten Polk had, in a letter transmitting pecuniary means to 
aid in the publication of a secession newspaper in Missouri, declared among other disloyal and 
treasonable expressions that ‘‘dissolution is now a fact,” and that he hoped Missouri would not 
“hesitate a moment to go with her Southern sisters;” that this letter had been extensively pub¬ 
lished, and could hardly have failed to come to the notice of Senator Polk; yet that neither he nor 
any one in his behalf had appeared before the committee to deny the authenticity of the letter, or 
attempted in any way to explain it; that he had not only failed to appear in his seat during the 
session, but on the contrary, as the committee are fully satisfied, had left his home in Saint Louis, 
and had gone clandestinely within the lines of the enemy then in rebellion against the United 
States. They reported back the resolution with the unanimous recommendation that it pass. Jan¬ 
uary 10 it passed by a vote of 36 yeas to no nays. A few remarks in regard to Mr. Polk’s letter, and 
reference of the resolution, constitute the debate on the case. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to the case from Senate Journals, 2d sess. 37th Cong., with the report of the committee from 
Senate Reports, 2d sess., 37th Cong., No. 4. 

The debate is found on page 126 of the Congressional.Globe, part 1, 2d sess. 37th Cong. 


Wednesday, December 18, 1861. 

Mr. Sumner submitted the following resolution; which was considered by unanimous 
consent, and referred to the Committee on the Judiciary: 

“ Resolved, That Trusten Polk, of Missouri, now a traitor to the United States, be 
expelled, and he hereby is expelled, from the Senate.” 


THURSSDAY, January 9, 1862. 

Mr. Ten Eyck, from the Committee on the Jndiciary, to whom was referred a resolu¬ 
tion for the expulsion of Trusten Polk, a Senator from the State of Missouri, reported 
the resolution without amendment, and with a recommendation that the resolution do 
pass. 

Mr. Ten Eyck submitted a report (No. 4) on the subject; which was ordered to be 
printed. 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eyck, Cowan, 
Harris, Bayard, and Powell.] 

In the Senate of the United States. 

January 9, 1862.—Submitted, and ordered to be printed. 

Mr. Ten Eyck made the following report: 

The Committee on the Judiciary, to whom was referred the resolution of the Senate 
for the expulsion of Trusten Polk, a Senator from the State of Missouri, report: 

That it appears to the satisfaction of the committee that Trusten Polk recently and 
since the commencement of the present rebellion, in a letter transmitting pecuniary 
means to aid in the publication of a secession newspaper in Southwestern Missouri 
among other disloyal and treasonable expressions used the following: “Dissolution is 
now a fact; not only a fact accomplished, but thrice repeated. Everything here looks 
like inevitable and final dissolution. Will Missouri hesitate a moment to go with her 
Southern sisters ? I hope not. Please let me hear from you. I would be glad to keep 
posted as to the condition of things in Southwest Missouri. I like Governor Jackson’s 
position. It looks like adherence to the ‘ Jackson resolutions.’ ” 

That a copy of this letter was published in full in the Congressional Globe of the 19th 
of December last, the day after the resolution of expulsion in this case was introduced 
in the Senate, and has also, both before and since that time, been published and re¬ 
ferred to in several other newspapers in Missouri and elsewhere, and widely circulated 
throughout the country, which publication could hardly have failed to come to the 
notice of Senator Polk; and yet neither he nor any other person in his behalf has ap-= 


TRUSTEN POLK. 


961 


peared before the committee to deny the authenticity of the letter referred to, or attempted 
in any other way to deny or explain it so far as the committee are aware; a course of 
conduct deemed to be wholly incompatible with the idea of his innocence, since an 
innocent man in his position, according to the first impulses of a true and loyal heart, 
would not have suffered a moment to elapse without flying to his place to deny, if false, 
so grave and foul a charge. 

That besides this he has not only failed to appear in his seat during the whole time of 
the continuance of the present session, now a period of six weeks, to perform his duty 
to his State and to the Union on an occasion of the greatest possible urgency, when the 
votes as well as counsel of every true and loyal Senator were eminently needed in pro¬ 
viding for the public welfare and in putting down a fierce rebellion threatening the 
very existence of the Union, but, on the contrary, as the committee are fully satisfied on 
information derived from reliable official and other sources in Missouri, has left his home 
in Saint Louis and gone clandestinely within the lines of the enemy now in open, armed 
rebellion against the United States, whose Constitution he, as Senator, has solemnly 
sworn to support. 

The committee, under this state of facts, are of opinion that justice to the Senate, to 
rid its roll of his name as well as the Chamber of his presence; justice to the State of 
Missouri, whose high commission he has dishonored, and justice to the Union which he 
has sought to betray, all require that he should no longer continue a member of this 
body. 

They therefore respectfully report the resolution for the expulsion of Trusten Polk, a 
Senator from Missouri, back to the Senate, with the unanimous recommendation that 
the same do pass. 

Friday, January 10, 1862. 

On motion by Mr. Ten Eyck, the Senate proceeded to consider the resolution sub¬ 
mitted by Mr. Sumner the 18th of December, expelling from the Senate Trusten Polk, 
a Senator from the State of Missouri; and 

On the question to agree to the resolution, as follows: 

“ Resolved , That Trusten Polk, of Missouri, now a traitor to the United States, be 
expelled, and he hereby is expelled, from the Senate,” 

It was determined in the affirmative—yeas 36, nays none. 

Those who voted in the affirmative are Messrs. Anthony, Bright, Browning, Carlile, 
Chandler, Collamer, Cowan, Davis, Dixon, Fessenden, Foster, Grimes, Hale, Harlan, 
Harris, Howe, Johnson, King, Lane of Indiana, Lane of Kansas, Latham, Morrill, 
Nesmith, Pomeroy, Powell, Rice, Saulsbury, Sherman, Simmons, Sumner, Ten Eyck, 
Thompson, Trumbull, Wade, Wilkinson, and Wilson. 

So the resolution was agreed to, two-thirds of the Senators present having voted in the 
affirmative. 

Mr. Trumbull submitted the following motion; which was considered by unanimous 
consent, and agreed to: 

Ordered , That the Vice-President be requested to transmit to the governor of the State 
of Missouri copies of the resolutions expelling Waldo P. Johnson and Trusten Polk from 
the Senate, attested by the Secretary of the Senate. 


S. Doc. 11-61 



962 


SENATE ELECTION CASES. 


[Thirty-seventh Congress—Second session. ] 

WALDO P. JOHNSON, 

Senator from Missouri from March 4, 1861, till January 10, 1862. 


December 10,1861, a resolution was submitted that Mr. Johnson be expelled from the Senate for 
his sympathy with and participation in the rebellion, conduct incompatible with his duty and 
station as a Senator. December 12 the i*esolution was referred to the Committee on the Judiciary, 
with instructions to inquire into the facts. January 9,1862, the committee reported that previous 
to his election Mr. Johnson was known, in Missouri, as entertaining secession proclivities; that 
since his election he was reported to have made a speech evincing a spirit hostile to the Govern¬ 
ment; that he had not appeared in his seat in the Senate since the session began; that this failure 
to appear in his place, and his silence under the imputations upon his loyalty, which, from their 
publicity, could not have escaped his notice if within a loyal portion of the Union, of themselves 
furnish strong presumptive grounds against his fidelity to the Government. They reported back 
the resolution with the recommendation that it pass. January 10 it passed by a vote of 35 yeas to 
no nays. A few remarks, mainly on the question of reference of the resolution, constitute the only 
debate on the case. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journal, 2d sess. 37th Cong., with the report of the committee from Senate 
Reports, 2d sess., 37th Cong. No. 5. 

The debate is found on pages 70, 71 of the Congressional Globe, part 1, 2d sess. 37th Cong. 

Tuesday, December 10, 1861. 

Mr. Foot submitted the following resolution for consideration: 

“ Resolved , That Waldo P. Johnson, a Senator from the State of Missouri, by his sym¬ 
pathy with and participation in the rebellion against the Government of the United 
States has been guilty of conduct incompatible with his duty and station as a Senator; 
and that he be therefor, and hereby is, expelled from the Senate of the United States.” 

Thursday, December 12, 1861. 

The Senate proceeded to consider the resolution, submitted by Mr. Foot the 9th in¬ 
stant, to expel Waldo P. Johnson, a Senator from the State of Missouri, from the Senate; 
and 

After debate, 

On motion by Mr. Saulsbury that the resolution be referred to the Committee on the 
Judiciary, with instructions to inquire into the facts of the case, it was determined in 
the affirmative. 


Thursday, January 9, 1862. 

Mr. Trumbull, from the Committee on the Judiciary, to whom was referred a resolu¬ 
tion to expel Waldo P. Johnson, a Senator from the State of Missouri, reported the 
resolution without amendment, and with a recommendation that the resolution do 
pass. 

Mr. Trumbull submitted a report (No. 5) on the subject; which was ordered to be 
printed. 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eyck, Cowan 
Harris, Bayard, and Powell.] 

In the Senate of the United States. 

January 9, 1862.—Submitted, and ordered to be printed. 

Mr. Trumbull made the following report: 

The Committee on the Judiciary, to whom was referred a resolution for the expulsion 
from the Senate of Waldo P. Johnson, a Senator from the State of Missouri, submit the 
following report: 

Previous to his election to the Senate Mr. Johnson was known in Missouri as enter¬ 
taining secession proclivities, and to sympathize and co-operate with the prominent 
citizens of that State who are now in open rebellion against the Government. He was 
elected to the Senate by a legislature which has since sought to array the State against 
the Union. Since his election he is reported to have made a speech evincing a spirit 
hostile to the Government, which speech was extensively published in the State of 


WALDO P. JOHNSON. 


963 


Missouri without public contradiction from him. He has not appeared in his seat in 
the Senate since the session began; and though the resolution for his expulsion was pro¬ 
posed in the Senate on the 10th day of December, and referred to this committee on the 
12th day of December, 1861, and has been extensively published in Missouri and other 
parts of the Union, the said Johnson has wholly failed to furnish any reason for his 
absence, or explanation of the charges of disloyalty urged against him. 

The failure of said Johnson for so long a period to appear in his place to discharge the 
high duties incumbent upon him for the preservation of the Republic in this time of 
rebellion against its authority, and his silence under the imputations upon his loyalty, 
which, from their publicity, could not have escaped his notice if within a loyal portion 
of the Union, of themselves furnish strong presumptive grounds against his fidelity to 
the Government. 

His whereabouts at this time the committee have been unable, with actual certainty, 
to ascertain. They are satisfied that, had he been so disposed, there was nothing to 
prevent his attendnnee on the Senate at its commencement; and when last heard from 
he was reported to have gone voluntarily within the lines of rebels in arms against the 
Government. 

Under these circumstances, the committee are of the opinion that he ought to be ex¬ 
pelled from the body, and they accordingly report the resolution back to the Senate 
with a recommendation that it do pass. 

Friday, January 10, 1862. 

On motion by Mr. Trumbull, the Senate proceeded to consider the resolution sub¬ 
mitted by Mr. Foot the 10th of December, expelling from the Senate Waldo P. Johnson, 
a Senator from the State of Missouri; and 

On the question to agree to the resolution, as follows: 

“ Resolved , That Waldo P. Johnson, a Senator from the State of Missouri, by his sym¬ 
pathy with, and participation in, the rebellion against the Government of the United 
States, has been guilty of conduct incompatible with his duty and station as a Senator, 
and that he be therefor, and hereby is, expelled from the Senate of the United States,” 

It was determined in the affirmative—yeas 35, nays none. 

Those who voted in the affirmative are Messrs. Anthony, Bayard, Bright, Browning, 
Carlile, Chandler, Collamer, Cowan, Davis, Dixon, Fessenden, Foster, Grimes, Hale, Har¬ 
lan, Harris, Howe, Johnson, King, Lane of Indiana, Lane of Kansas, Morrill, Nesmith, 
Pomeroy, Powell, Rice, Saulsbury, Sherman, Simmons, Sumner, Ten Eyck, Thomson, 
Trumbull, Wade, and Wilson. 

So the resolution was agreed to, two-thirds of the Senators present having voted in 
the affirmative. 

******* 

Mr. Trumbull submitted the following motion; which was considered by unanimous 
consent, and agreed to: 

Ordered , That the Vice-President be requested to transmit to the governor of the State 
of Missouri copies of the resolution expelling Waldo P. Johnson and Trusten Polk from 
l he Senate, attested by the Secretary of the Senate. 


964 


SENATE ELECTION CASES. 


[Thirty-seventh Congress—Second session. ] 

JESSE D. BEIGHT, 

Senator from Indiana from March 4, 1845, to February 5, 1862. 


December 16, 1861, a resolution was submitted that Mr. Bright be expelled from the Senate. The 
preamble stated that Mr. Bright had written a certain letter (given below) which was believed to 
be evidence of disloyalty to the United States, and calculated to give aid and comfort to the public 
enemies. The resolution was referred to the Committee on the Judiciary. January 13, 1862, the 
committee reported that in their opinion the facts charged against Mr. Bright were not sufficient 
to warrant his expulsion and recommended that the resolution do not pass. February 5,1862, after 
a long debate the Senate agreed to the resolution by a vote of 32 yeas to 14 nays, and, more than 
two-thirds of the Senators present voting in the affirmative, Mr. Bright was expelled. 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journals, 2d sess. 37th Cong., with the report of the committee taken from 
the Congressional Globe. 

The debates in the case are found in the Congressional Globe, part 1,2d sess. 37th Cong., and the 
Appendix contained in part 4 of the same. 

Special references to the debates of each day are inserted below. 

Monday, December 16, 1861. 

Mr. Wilkinson submitted the following resolution; which was considered, by unani¬ 
mous consent, and referred to the Committee on the Judiciary: 

“Whereas the Hon. Jesse D. Bright heretofore, on the 1st day of March, 1861, wrote 
a letter, of which the following is a copy: 


“ ‘Washington, March 1, 1861. 

“ ‘My Dear Sir: Allow me to introduce to your acquaintance my friend, Thomas 
B. Lincoln, of Texas. He visits your capital mainly to dispose of what he regards a 
great improvement in fire-arms. I commend him to your favorable consideration as a 
gentleman of the first respectability, and reliable in every respect. 

“ ‘ Very truly yours, 

“ ‘JESSE D. BRIGHT. 

“ ‘ To his Excellency Jefferson Davis, 

“‘President of the Confederation of States.’ 

‘ ‘ And whereas we believe the said letter is evidence of disloyalty to the United States, 
and is calculated to give aid and comfort to the public enemies: Therefore, 

“ Resolved , That the said Jesse D. Bright be expelled from his seat in the Senate of 
the United States.” 

Mr. Wilkinson also submitted a paper in relation to the aforesaid resolution; which 
was referred to the Committee on the Judiciary. 

[Remarks by Mr. Bright and another letter written by him are found on page 89 of 
the Congressional Globe referred to in the head-note.] 


Friday, December 20, 1861. 

Mr. Trumbull presented a memorial of James M. Logan and others, loyal citizens of 
the State of Indiana, praying for the removal of the Hon. Jesse D. Bright from the 
United States Senate; which was referred to the Committee on the Judiciary. 


Monday, January 13, 1862. 

Mr. Cowan, from the Committee on the Judiciary, to whom was referred a resolution 
for the expulsion of Jesse D. Bright, a Senator from the State of Indiana, from the Sen¬ 
ate, reported it without amendment, and with a recommendation that the resolution do 
not pass. 

The Senate resumed the consideration of the said resolution; and 

On motion by Mr. Wilkinson, 

Ordered, That the further consideration thereof be postponed to, and made the special 
order of the day for, Thursday, the 16th instant, at 1 o’clock 


JESSE D. BRIGHT. 


965 


REPORT OF COMMITTEE.* 

[The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eyck, Cowan 
Harris, Bayard, and Powell.] 

The Committee on the Judiciary, to whom was referred a resolution to expel the Hon. 
Jesse D. Bright from his seat in the United States Senate, respectfully report: 

That they are of opinion that the facts charged against Mr. Bright are not sufficient 
to warrant his expulsion from the Senate; and They therefore recommend that the reso¬ 
lution do not pass. 


Monday, January 20, 1862. 

The Vice-President called up the special order of the day, and the Senate resumed 
the consideration of the resolution submitted by Mr. Wilkinson on the 16th of Decem¬ 
ber last, for the expulsion of the Hon. Jesse D. Bright from the Senate, reported upon 
adversely by the Committee on the Judiciary; and 

After debate, 

On motion by Mr. Hale, the Senate adjourned. 

[The debate is found on pages 391-398 of the Congressional Globe referred to in the 
head-note. ] 

Tuesday, January 21, 1862. 

The Senate resumed, &c. 

[The debate is found on pages 412-419 of the Congressional Globe referred to in the 
head-note. ] 

Wednesday, January 22, 1862. 

The Senate resumed, &c. 

[The debate is found on pages 431-435 of the Congressional Globe referred to in the 
head-note.] 

Thursday, January 23, 1862. 

The Senate resumed, &c. 

[The debate is found on pages 447-454 of the Congressional Globe referred to in the 
head-note. ] 

Friday, January 24, 1862. 

The Senate resumed, &c. 

[The debate is found on pages 470, 471 of the Congressional Globe referred to in the 
head-note. ] 

MONDAY, January 27, 1862. 

The Senate resumed, &c. 

[The debate is found on pages 37-42 of the Appendix to the Congressional Globe re¬ 
ferred to in the head-note.] 

Wednesday, January 29, 1862. 

The Senate resumed, &c. 

[The debate is found on pages 539-545 of the Congressional Globe referred to in the 
head-note.] 

Thursday, January 30, 1862. 

The Senate resumed, &c. 

[The debate is found on pages 559-564 of the Congressional Globe referred to in the 
head-note. ] 

Friday, January 31, 1862. 

The Senate resumed, &c. 

[The debate is found on pages 582-592 of the Congressional Globe referred to in the 
head-note.] 

Tuesday, February 4, 1862. 

The Senate resumed, &c. 

[The debate is found on pages 622-629 of the Congressional Globe referred to in the 
head-note.] 

Wednesday, February 5, 1862. 

The Senate resumed the consideration of the resolution submitted by Mr. Wilkinson, 
the 16th of December, for the expulsion of the Hon. Jesse D. Bright from the Senate, 
and reported upon adversely by the Committee on the Judiciary; and 

After debate, 

On the question to agree to the resolution as follows: 

“ Whereas the Hon. Jesse D. Bright, heretofore, on the 1st day of March, 1861, wrote 
a letter of which the following is a copy: 

♦Found on page 287 of the Congressional Globe referred to in the head-note. 



966 


SENATE ELECTION CASES. 


** ‘Washington, March 1, 1861. 

“ ‘My Dear Sir: Allow me to introduce to your acquaintance my friend, Thomas 
B. Lincoln, of Texas. He visits your capital mainly to dispose of what he regards a 
great improvement in fire-arms. I commend him to your favorable consideration as a 
gentleman of the first respectability, and reliable in every respect. 

“ ‘Very truly yours, 

“ ‘JESSE D. BRIGHT. 

“ ‘His Excellency Jefferson Dayis, 

“ ‘President of the Confederation of States.'* 

“And whereas we believe the said letter is an evidence of disloyalty to the United 
States, and is calculated to give aid and comfort to the public enemies: Therefore, 

“j Resolved, That the said Jesse D. Bright be expelled from his seat in the Senate of 
the United States,” 

It was determined in the affirmative—yeas 32, nays 14. 

Those who voted in the affirmative are Messrs. Anthony, Browning, Chandler, Clark, 
Collamer, Davis, Dixon, Doolittle, Fessenden, Foot, Foster, Grimes, Hale, Harlan, Hen¬ 
derson, Howard, Howe, Johnson, King, Lane of Indiana, McDougall, Morrill, Pomeroy, 
Sherman, Simmons, Sumner, Trumbull, Wade, Wilkinson, Wilmot, Wilson of Massa¬ 
chusetts, and Wilson of Missouri. 

Those who voted in the negative are Messrs. Bayard, Carlile, Cowan, Harris, Ken¬ 
nedy, Latham, Nesmith, Pearce, Powell, Rice, Saulsbury, Ten Eyck, Thomson, and 
Willey. 

So the resolution was agreed to, two-thirds of the Senators present having voted in 
the’affirmative; and it was 

Resolved , That the said Jesse D. Bright be expelled from his seat in the Senate of 
the United States. 

[The debate is found on pages 644-655 of the Congressional Globe referred to in the 
head-note, ] 

Thursday, February 6, 1862. 

On motion by Mr. Wilkinson, 

Ordered , That the Vice-President be requested to transmit to the executive of the State 
of Indiana a copy of the resolution expelling Jesse D. Bright from the Senate, attested 
by the Secretary of the Senate. 


BENJAMIN STARK. 


May 7, 1862, a resolution was submitted that Benjamin Stark, who had been found disloyal by a 
committee of the Senate, be expelled. A motion to consider the resolution was determined in the 
negative, June 6, by vote of 16 yeas to 21 nays. (J. of S., 2d sess. 37th Cong., p. 616.) As the case con¬ 
tains other points relating to the admission of Mr. Stark, it has been thought best to insert it in 
Part u. Vide supra, p. 188. 



LAZARUS W. POWELL. 


967 


[Thirty-seventh Congress—Second session. ] 

LAZARUS W. POWELL, 

Senator from Kentucky from March 4, 1851), till March 3, 1865. 


February 20,1862, a resolution was submitted that Mr. Powell be expelled from the Senate. It was 
accompanied by a preamble setting forth certain conduct of Mr. Powell, which, it stated, showed 
that “his purposes, if not his acts, were treasonable.” The resolution was referred to the Com¬ 
mittee on the Judiciary. March 12,1862, the committee reported back the resolution with the recom¬ 
mendation that it do not pass. No report showing the grounds on which the committee proceeded 
was made. From remarks by the chairman of the committee, given below, it appears that nothing 
was shown to satisfy the committee that Mr. Powell had done anything to favor Wie cause of the 
rebellion ; that his opinions differed from the opinions of the speaker, but that no man was to be 
expelled because he disagreed with others in opinion. March 14 the resolution was not agreed to 
by a vote of 28 nays to 11 yeas. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it from Senate Journals, 2d sess. 37th Cong., and remarks by Mr. Trumbull from Congressional 
Globe, part 2,2d sess. 37th Cong., page 1234. 

Special references to the debates of each day are inserted below. 


Thursday, February 20, 1862. 

Mr. Wnkinson submitted the following resolution; which was considered by unani¬ 
mous consent, referred to the Committee on the Judiciary, and ordered to be printed: 

“Whereas Lazarus W. Powell, a Senator from the State of Kentucky, after eleven 
States had published their ordinances of secession by which to sever themselves from 
the Government of the United States, had formed a confederation and provisional govern¬ 
ment, and made war upon the United States, did, on the 20th day of June last, at the 
city of Henderson, in the State of Kentucky, attend a large Southern State’s rights con¬ 
vention, over which he was called to and did preside; and, on taking his seat as president 
thereof, made a speech, in which he stated the object of said convention, and then ap¬ 
pointed a committee, which reported to said convention a long series of resolutions that 
were unanimously adopted by it. Among those resolutions are the following: 

“ ‘ 2. That the war being now waged by the Federal Administration against the South¬ 
ern States is in violation of the Constitution and laws, and has already been attended 
with such stupendous usurpations as to amaze the world and endanger every safeguard 
of constitutional liberty. 

* ****** 

‘ ‘ ‘ That the recall of the invading armies and the recognition of the separate inde¬ 
pendence of the Confederate States is the true policy to restore peace and preserve the 
relations of fraternal love and amity between the States. 

******* 

“ ‘6. That we heartily approve the refusal of Governor Magoffin to furnish Kentucky 
troops to subjugate the South; and we cordially indorse his recent proclamation defining 
the position of Kentucky, in accordance with the sentiment of her people, and forbidding 
the invasion of Kentucky by Federal or confederate troops. 

“ ‘7. That, although Kentucky has determined that her proper position at present is 
that of strict neutrality between the belligerent sections, yet, if either of them invade 
her soil against her will, she ought to resent and repel it by necessary force.' 1 

“The pith of Governor Magoffin’s proclamation, which that convention so cordially 
approved, is embodied in this paragraph: ‘I hereby notify and warn all other States, 
separate or united, especially the United and Confederate States, that I solemnly forbid 
any movement upon Kentucky soil, or occupation of any part or place therein, for any 
purpose whatever, until authorized by invitation or permission of the legislative and 
executive authorities. I especially forbid all citizens of Kentucky, whether in the State 
guard or otherwise, from making any hostile demonstration against any of the aforesaid 
sovereignties; to be obedient to the orders of lawful authorities; to remain quietly and 
peaceably at home when off of military duty, and refrain from all words and acts likely 
to provoke a collision, and so otherwise to conduct themselves that the deplorable ca¬ 
lamity of invasion may be averted; but, in the mean time, to make prompt and efficient 
preparation to assume the paramount and supreme law of self-defense, and strictly of 
self-defense alone. ’ 

“The closing speech of this convention was made by Senator Powell, and the resolu¬ 
tions passed by it and a summary statement of its proceedings were signed by him as its 
president. 


968 


SENATE ELECTION CASES. 


“On the 10th of September last, whilst the legislature of Kentucky was in session in 
the town of Frankfort, and after her territory had been invaded at two distant points by 
the confederate armies, and whilst Humphrey Marshall was employed in organizing and 
d rilling an armed body of rebels in the contiguous county of Owen, a large Southern 
State’s rights convention assembled and held its sessions in Frankfort, for the apparent 
purpose of overawing the legislature, controlling its deliberations, and deterring it from 
passing measures to support the Union and the Government of the United States, Lazarus 
W. Powell was a delegate to that convention from the county of Henderson, and was 
appointed on its committee of resolutions. Among other resolutions, that committee 
reported these: 

“ 1 Resolved, That every material interest of Kentucky, as well as the highest dictates 
of patriotism, demand that peace should be maintained within her borders, and this con¬ 
vention solemnly pledges the honor of its members to do all in their power to promote 
this end. 

“ ‘2. That it is the deliberate sense of this convention, and it is believed of an over¬ 
whelming majority of the people of Kentucky, that the best and perhaps the only mode 
of effecting this great object is by adhering strictly, rigidly, and impartially to her chosen 
and oft-declared position of neutrality during the existence of the deplorable war now 
raging between the sections; taking sides neither with the Government nor with the 
seceding States, and declaring her soil must be preserved inviolate from the armed occupa¬ 
tion of either. 

* ****** 

“ ‘9. That we consider it incompatible with the neutrality avowed by Kentucky 
to vote money for the prosecution of the civil war, or to tax the people of the State, or 
augment its debt for a purpose so unwise and for a cause so hopeless as the military 
subjugation of the Confederate States.’ 

“This was a convention of most intense secessionists, and was attended by John C 
Breckinridge and many of the leaders of that party from generally over the State. 
William Preston and R. W. Wooley, esquires, made speeches to it fraught with the rank¬ 
est treason, and denouncing the fiercest war against the United States. Its resolutions 
were unanimously adopted, and its business closed with the following one, offered by 
Senator Powell: 

“ ‘ Resolved , That Col. William Preston, George W. Johnson, esq., General Lucius Desha, 
Capt. Richard Hawes, and Thomas P. Porter, esq., be, and they are hereby, appointed 
a committee of organization, in order to carry out the purposes of this convention; and 
full powers are conferred upon them for that object ’ 

‘ ‘ Those men were thus commissioned in the cause of conspiracy, treason, and rebellion. 
By the warrant given them, on the motion of Senator Powell, they went forth and organ¬ 
ized or advised and assisted in the organization of armed bands of traitors, and soon 
thereafter led them into the confederate camps, where they are yet struggling to con¬ 
summate the disruption of the Union and the overthrow of the Constitution and laws 
of the United States. From the beginning of this great rebellion to the present time 
Senator Powell has neither done nor said anything in Congress or out of Congress to 
strengthen or sustain the United States in this mighty struggle far national life. Whilst 
the true and loyal men of his own State were engaged in an arduous and protracted 
struggle to bring her to perform her duty to the nation and its government, he not only 
withheld from them all assistance and sympathy, but gave to the rebels the moral force 
of his disloyal position and opinions, and all the aid and comfort which he could render 
them short of the commission of technical treason. His purposes, if not his acts, have 
been treasonable. Being an ex-governor of the State of Kentucky, and one of her Sena¬ 
tors in Congress, his example and counsel have doubtless been potential with her people 
and of mischievous tendency in other States. Under the false and delusive cry of neu¬ 
trality and peace, and the absurd purpose to protect the soil of the State against invasion 
from the military force of the United States, he has doubtless assisted to seduce hundreds 
and hundreds from loyalty and duty into rebellion and treason. He has not supported 
the Constitution of the United States, but he has sounded the charge to his recruits, and 
they have made the overt attack upon it. Wherefore— 

“Beit resolved , That the said Lazarus W. Powoll be, and he is hereby, expelled from 
the Senate.” 

****** * 

Mr. Wilkinson presented papers in relation to the resolution submitted by him this 
day for the expulsion of the Hon. Lazarus W Powell from the Senate; which were re¬ 
ferred to the Committee on the Judiciary. 

Friday, March 7, 1862. 

[Remarks on the resolution are found on pages 1112, 1113 of the Congressional Globe, 
part 2, 2d sess. 37th Cong. ] 


LAZARUS W. POWELL. 


969 


Wednesday, March 12, 1862. 

Mr. Trumbull, fiom the Committee on the Judiciary, to whom was referred the reso¬ 
lution submitted by Mr. Wilkinson on the 20th of February foT the expulsion of the 
Hon. Lazarus W. Powell from the Senate, reported it without amendment, and with a 
recommendation that the resolution do not pass. 

Thursday, March 13, 1862. 

The Senate proceeded to consider the resolution for the expulsion of the Hon. Lazarus 
W. Powell from the Senate; and 

After debate, 

On motion by Mr. Powell, 

Ordered , That the further consideration of the resolution be postponed to to-morrow 
it 1 o’clock. 

[The debate is found on pages 1208-1216 of the Congressional Globe, part 2, 2d sess 
37th Cong.] 

Friday, March 14, 1862 

The Senate resumed the consideration of the resolution to expel the Hon. Lazarus W 
Powell from the Senate; and 

After debate, 

On the question to agree to the resolution, as follows: 

“ Resolved , That the said Lazarus W. Powell be, and he is hereby, expelled from the 
Senate,” 

It was determined in the negative—yeas 11, nays 28. 

Those who voted in the affirmative are Messrs. Davis, Dixon, Harlan, Howard, Howe, 
Lane of Indiana, Pomeroy, Sumner, Ten Eyck, Wade, and Wilkinson. 

Those who voted in the negative are Messrs. Anthony, Browning, Carlile, (Lark. 
Cowan, Doolittle, Fessenden, Foot, Foster, Hale, Harris, Henderson, Kennedy, King, 
Lane of Kansas, Latham, McDougall, Nesmith, Pearce, Rice, Saulsbury, Stark, Thom¬ 
son, Trumbull, Willey, Wilson of Massachusetts, Wilson of Missouri, and Wright. 

So the resolution was not agreed to. 

[The debate is found on pages 1230-1234 of the Congressional Globe, part 2, 2d sess. 
37th Cong.] 

[Remarks of Mr. Trumbull, of Illinois, March 14,1862.] 

“ I consider it due to the committee, whose organ I was in reporting adversely to the 
passage of this resolution, simply to state, not by way of argument, or of provoking 
reply, the ground upon which the committee reported adversely to the passage of this 
resolution. It was not because the committee approved of the doctrine of neutrality in 
Kentucky. In my judgment that was a most mischievous position, and one wholly 
untenable, either in April, or June, or September; but it is known that the people of 
Kentucky very generally assumed that ground, and the Government of the United States, 
if they did not recognize the neutrality of Kentucky, we may at least say paid some 
respect to it. The resolutions that were adopted, in which they declared thal, the 
United States had no right to pass its troops over the soil of Kentucky, were, in my 
judgment, preposterous. It was downright opposition to the constituted author ties of 
the Government; wholly unjustifiable. I have no excuse for it. I think it is without 
excuse. But, sir, such was the position of the great body of the people of that State; 
and many persons now believe that it was owing to this position of neutrality which 
was then assumed that Kentucky has at last arrayed herself on the side of the Union. 
I do not think so; but good Union men doubtless did take that position. 

‘Well, sir, the time came when, notwithstanding Kentucky had assumed this false 
attitude, it was necessary that her people should take sides either with the Government 
or against those arrayed for its protection. Some men who got upon this neutrality plat¬ 
form left it sooner than others; some in June, if you please; some earlier; some stood 
on it till September; but when the time came that Kentuckians had to meet this thing 
face to face, go with the Government or against it, fight for one or the other, then, sir, 
the traitors arrayed themselves, and undertook to get up a provisional government in 
the State of Kentucky. Breckinridge and the traitors alluded to by the Senator on 
my right [Mr. Davis] went into the organization; they joined the rebels; the Senator 
from Kentucky, whose case is under consideration, came here—came to the Government 
of the United States to discharge his duties here. He does not agree with me in sen¬ 
timent; his opinions are not my opinions; I do not agree with the views that he has 
so often announced here; but he is entitled to his own opinions; and no man is to be 
expelled from this body because he disagrees with others in opinion. Since Kentucky 
assumed this position and took sides with the Union nothing has been shown to satisfy 
the committee, at least, that the Senator from Kentucky has had any communication 
or done anything to favor the cause of the rebellion. I think neutrality did favor it; 
but, sir, that is now over. ’ ’ 


970 


SENATE ELECTION CASES. 


[Thirty-seventh Congress—Second session.] 

JAMES F. SIMMONS, 

Senator from Rhode Island from March 4, 1841, till March 3, 1847, and 
from March 4, 1857, till he resigned in August , 18014. 


July 2,1862, near the end of Mr. Simmons’s second term in the Senate, a resolution was submitted 
that he be expelled from the Senate. The preamble stated that it appeared from a report of the Sec¬ 
retary of War that Mr. Simmons had exercised his official influence over certain of the heads of the De¬ 
partments in procuring an order authorizing a certain person to manufacture rifles in behalf of the 
Government for the Army and Navy, and that Mr. Simmons had agreed to receive as a compensa¬ 
tion for such services the sum of $50,000, and that he had already received two promissory notes 
amounting to $10,000. July 8 the resolution was referred to the Committee on the Judiciary by a vote 
of 31 yeas to 7 nays. July 14 the committee reported that the facts were substantially as above 
given, and that they were of opinion that “such a practice is entirely indefensible, and that it was 
highly improper for a Senator of the United States to have acted thus, even when the Government 
sustained no loss thereby; ” that it was manifest that Congress disapproved of such conduct from 
the fact that they had promptly passed a law making it a penal offense thereafter; but that to visit 
a severe penalty upon an act which at the time of its commission was not punishable or forbidden 
by public law would be retroactive in its effect, and render the step liable to that objection to which 
all post facto laws are justly subject. The committee unanimously reported back the resolution, 
accompanied by the statement of facts, that the Senate might take such action as they might think 
fit. No action was taken. [Congress adjourned within three days after the report was made, and 
Mr. Simmons had resigned his seat in the Senate before the next session.] 

The history of the case here given consists of a transcript of the proceedings of the Senate relat¬ 
ing to it from Senate Journals, 2d sess. 37th Cong., with the report of the committee from Senate 
Reports, 2d sess. 37th Cong., No. 39. 

The case was not debated. 

| 

Wednesday, July 2, 1862. 

Mr. Wright submitted the following resolution for consideration: 

“Whereas, by a report made to the Senate of the United States by the Secretary of 
War, the Hon. E. M. Stanton, bearing date June 21, 1862, it appears that the Senator 
from the State of Rhode Island, James F. Simmons, gave and exercised his official influ¬ 
ence over certain of the heads of the Departments of our Government in procuring for 
one C. D. Schubarth an order, dated October 11, 1861, authorizing the said Schubarth, 
in behalf of the Government, to manufacture, for the use of the Army and Navy, 
50,000 breech-loading rifles; and, further, that the said Senator did agree to receive, 
as a compensation for services rendered in such procurement, the sum of $50,000, and 
did subsequently accept two several promissory notes from certain parties in New York, 
‘one payable in August, and one in September next, both amounting to $10,000,’ in 
payment for procuring said order: Therefore, 

“ Resolved , That the said James F. Simmons be, and is hereby, expelled from the seat 
he holds in this Senate. ’ ’ 


Tuesday, July 8, 1862. 

On motion by Mr. Wright, the Senate proceeded to consider the resolution submitted 
by him on the 2d instant for the expulsion of the Hon. James F. Simmons, a Senator 
from the State of Rhode Island, from the Senate; and, 

On motion by Mr. Ten Eyck that the resolution be referred to the Committee on the 
Judiciary, it was determined in the affirmative—yeas 31, nays 7. 

On motion by Mr. Wright, the yeas and nays being desired by one-fifth of the Senators 
present, 

Those who voted in the affirmative are Messrs. Anthony, Browning, Carlile, Chandler, 
Clark, Col lamer, Cowan, Davis, Doolittle, Fessenden, Foot, Grimes, Hale, Harlan, 
Harris, Howard, Howe, Kennedy, Lane of Kansas, McDougall, Morrill, Rice, Sherman, 
Stark, Sumner, Ten Eyck, Wilkinson, Willey, Wilmot, Wilson of Massachusetts, and 
Wilson of Missouri. 

Those who voted in the negative are Messrs. Foster, Henderson, King, Nesmith, 
Powell, Trumbull, and Wright. 

So the motion was agreed to, and it was 

Ordered , That the resolution be referred to the Committee on the Judiciary. 

Monday, July 14, 1862. 

Mr. Ten Eyck, from the Committee on the Judiciary, to whom was referred a resolu 
tion to expel the Hon. James F. Simmons, a Senator from the State of Rhode Island, 
from the Senate, submitted a report (No. 69); which was ordered to be printed. 


JAMES F. SIMMONS. 


971 


REPORT OF COMMITTEE. 

[The committee consisted of Messrs. Trumbull (chairman), Foster, Ten Eyck, Cowan, 
Harris, Bayard, and Powell.] 

In the Senate of the United States. 

July 14, 1862.—Ordered to be printed. 

Mr. Ten Eyck submitted the following report: 

The Committee on the Judiciary, to whom was referred a resolution for the expulsion 
of James F. Simmons, a Senator of the United States from the State of Rhode Island, 
have had the same under consideration, and, after full deliberation, make the following 
report: 

That in October, 1861, Senator Simmons being in Washington on his own private 
business, was called upon by a Mr. Schubarth with a letter of introduction from Messrs. 
A. D. & J. Y. Smith, a wealthy business firm in Providence, Rhode Island, requesting 
him to aid Mr. Schubarth in procuring an order from the Government for the manu¬ 
facture of a breech-loading rifle for the use of the Army and Navy, of which he was the 
inventor, and stating that if the order was procured they (the Messrs. Smith) were to be 
concerned in its execution. 

Mr. Schubarth was introduced by Senator Simmons to the Secretary of War, General 
Ripley, of the Ordnance, and Captain Harwood, of the Navy Department. His rifle 
was tried at the navy-yard, and a favorable report made, but the Government declined 
ordering his breech-loading rifle, and, preferring the Springfield rifled muskets, gave 
an order on the 11th of October last for 20,000, at the rate of $20 for each arm, with 
the appendages. 

When called upon by Mr. Schubarth with the letter of the Messrs. Smith, as above 
stated, Mr. Simmons determined to aid him in procuring the order for the manufact¬ 
ure of the rifle invented by him, by going with him to the Departments, recommending 
his arm, and soliciting a contract in the same manner as he had done before in other 
cases, and has since done in behalf of constituents of his without any offer of com¬ 
pensation having been made to him for his aid, and without expecting or dreaming of 
receiving any. That after he had thus undertaken to assist Mr. Schubarth, either be¬ 
fore or after he had introduced him at the Departments, (Mr. Simmons thinks it was 
after and some time during the stay of Mr. Schubarth in Washington, while going to or 
returning from the Departments,) Schubarth said he had a letter from the Messrs. Smith 
authorizing him to pay a commission for obtaining an order, which he offered to Mr. 
Simmons to be read, but which he declined reading, saying, playfully, “that the Messrs. 
Smith were rich enough to pay, and that if he got commissions for all he did for his 
constituents he should be as rich as some of them were; ” but it appears that no sug¬ 
gestion was made to Mr. Simmons to pay him a commission or compensate him in any 
way for any aid he might render until after he had determined to assist the parties in 
getting the contract; and that nothing further ever passed between Mr. Simmons and 
the Messrs. Smith on the subject of commissions. 

That afterwards, in November, 1861, Mr. Simmons being in Washington, on his way 
to Hatteras Inlet, for the purpose of consulting the Government about procuring a vessel 
load of cotton, Mr. Schubarth informed him that he could do nothing with the order he 
had obtained unless it was made for the same number and as long a time allowed for 
delivery as other parties had, and requested him to aid in getting such alteration, which 
he did; and on the 26th of November last an additional order was made for the manu¬ 
facture of 30,000 more. 

In January last, Mr. Schubarth informed Mr. Simmons that the Messrs. Smith de¬ 
clined pursuing the business. And seeing him afterwards in February, in New York, 
Schubarth told him he had made arrangements with other parties for means to carry 
out the contract, and that they wanted to have an understanding with him about his 
commissions. Mr. Simmons states that he saw these parties, and took from them an 
agreement, in writing, to pay at certain stipulated times (in about a year from May 
last) the amount agreed upon. The agreement was without qualification or condition, 
and had no connection with what the Government might subsequently do, only binding 
themselves to a due execution of the order on their part. Under and in pursuance of 
this agreement they subsequently gave him one note, payable in August, and one in 
September next, both amounting to $10,000, which he expected would be paid, as he 
had no doubt of their responsibility. 

Mr. Simmons further states that he never expected Schubarth to pay him a cent for 
the assistance he rendered him; that he was in moderate circumstances; that the 
Smiths were rich and that he expected them to pay; and that he should have aided just 


972 


SENATE ELECTION CASES. 


as soon, and acted as earnestly in endeavoring to procure the orders, without compensa¬ 
tion, as he had repeatedly done in other cases for his constituents. Mr. Schubath states, 
on the contrary, that he considers himself bound to give Senator Simmons 5 per cent, 
commission on both orders, and he says he made the offer of commissions to Senator 
Simmons because he had understood that a commission was paid for obtaining con¬ 
tracts, and he thinks it was one of the Messrs. Smith who told him so. It may not be 
amiss to state that Mr. Simmons, who has appeared before the committee and with 
great frankness and fairness detailed all the circumstances of the transaction, and an 
swered all questions put to him promptly and without hesitation, also stated that he is 
now, and was at the time, unconscious of having done anything wrong in acting as he 
did, and that he was not aware that it was unlawful, there being no law prohibiting it; 
that he considered he was not only benefiting his constituents, but was also doing the 
Government a service by procuring for it responsible contractors for the prompt supply 
of arms, which was then so greatly needed, he having about that time learned in high 
quarters that although 500,000 men had recently been called to the field, the Govern¬ 
ment had then only 200,000 stand of arms to put in their hands. 

It further appears that Senator Simmons still holds the notes given him for these 
commissions as agreed upon, and expects to receive payment on them when they fall 
due. 

It also appeared to the committee that both before and after the contract for these 
arms was made, many other contracts were made for similar arms, between July 1,1861, 
and January 1, 1862, and the lowest price paid by the Department for arms of this 
description was $20, the price agreed to be paid to Mr. Schubarth; that $20 was the low¬ 
est bid that was made at the Department for the manufacture of such arms during the 
periods aforesaid, and that the Government lost nothing in consequence of the offers of 
Mr. Schubarth to pay Mr. Simmons a commission for his assistance in this particular, 
after he had voluntarily undertaken to assist in procuring the contract without reward. 

The committee on these facts are of opinion that although Senator Simmons may have 
thought, as he declares, that his act was neither unlawful or wrong (a declaration 
which his age, respectability, and long, useful, and honorable life, it would seem, should 
favor, whilst it is true that these very considerations should make a willful departure 
from the line of correct conduct more glaring and censurable), still, that such a practice 
is entirely indefensible, and that it was highly improper for a Senator of the United 
States to have acted thus, even where the Government sustained no loss thereby; but 
especially at a time when the very existence of the Government and the Union was 
endangered by a fierce and huge rebellion, to suppress which the patriotism of the 
country was everywhere engaged—a rebellion which, first by robbery and afterward by 
occasioning unlimited requisitions for the purchase of supplies and arms, had subjected 
the public treasury to untold and frightful drains. 

That Congress disapproves of such conduct is manifest from the fact that they have 
promptly passed a law making it a penal offense hereafter; this will prevent all such 
acts in future; but to visit a severe and striking penalty upon an act which at the time 
of its commission was not punishable or forbidden by any public law would be retro¬ 
active in its effect, and render the step liable to that objection to which all post facto 
laws are justly subject. 

The committee would further state in this connection that it was the common prac¬ 
tice until a recent period for members of Congress to prosecute claims against the Gov¬ 
ernment for fees and rewards, and that for many years our most distinguished public 
men were in the habit of prosecuting claims under such circumstances without censure 
or criticism; but this was made a misdemeanor by an act of Congress in 1853, and since 
that period the practice has been discontinued. 

The committee unanimously report back the resolution, accompanied by the state¬ 
ment of facts herein contained (about which there appears to be no dispute), in order 
that the Senate may take such action in the matter as they in their wisdom and discre¬ 
tion may think fit. 


JAMES W. PATTERSON. 


973 


[Forty-second Congress—Third session.] 

JAMES W. PATTERSON, 

Senator from New Hampshire from March 4,1867, till March 3,1873. 


February 4,1873, a message was received from the House of Representatives that the House had 
tesolved that there be transmitted to the Senate a copy of evidence reported to the House by a se¬ 
lect investigating committee, the preamble to the resolution reciting that the evidence contained 
matter affecting members of the Senate. The communication was referred to a select committee. 
February 27, the committee reported, exonerating the other Senators mentioned in the report, and 
reporting the following resolution in regard to Mr. Patterson: “ Resolved , That James W. Patter¬ 
son be, and he is hereby, expelled from his seat as a member of the Senate.” Mr. Patterson’s term 
expired March 3, no action having been taken by the Senate on the resolution. March 26, the 
Senate resolved that ‘‘Observations on the report,” &c., submitted by Mr. Patterson, be received, 
filed, and printed with the report, the preamble reciting that it was manifestly impossible for the 
Senate to consider the resolution at the session then just passed, and that it was very questionable 
if it was competent for the Senate to consider the same after Mr. Patterson had ceased to be a mem¬ 
ber of the body. 

The history of the case here given consists of a transcript of the proceedings of the Senate relating 
to it f;om the Senate Journal, 42d Cong., 3d sess. The report of the committee is found in Senate 
Reports, 42d Cong., 3d sess., No. 519. 

Special references to the debates of each day are inserted below. 

Tuesday, February 4, 1873. 

The Presiding Officer (Mr. Anthony in the chair) laid before the Senate the following 
message, this day received from the House of Representatives: 

In the House of Representatives, 

February 4, 1873. 

Mr. Poland, from the select investigating committee, &c., submitted the following; 
which was agreed to: 

“ Whereas the evidence taken by a select committee of this House appointed Decem¬ 
ber 2, 1872, for the purpose of examining into charges of bribery of members of this 
House, contains matter affecting members of the Senate: Therefore, 

‘ ‘ Resolved , That the Clerk of the House be directed to transmit to the Senate a copy 
of all the evidence thus far reported to the House by said committee, together with a 
copy of this resolution.’’ 

Attest: 

edw. mcpherson, cierk. 


Whereupon, 

On motion by Mr. Patterson, and by unanimous consent, 

‘ ‘ Resolved, That a select committee, consisting of five Senators, be appointed by the 
Presiding Officer, to whom shall be referred the communication this day received from 
the House of Representatives in relation to matter affecting members of the Senate, to¬ 
gether with the copy of the evidence accompanying the same, and that the said commit¬ 
tee have power to send for persons and papers, and to employ a clerk.” 

Wednesday, February 5, 1873. 

The Presiding Officer (Mr. Anthony in the chair) appointed Mr. Morrill of Maine, 
Mr. Scott, Mr. Wright, Mr. Stockton, and Mr. Stevenson the select committee, under 
the resolution of the Senate of the 4th instant, to whom shall be referred the communi¬ 
cation yesterday received from the House of Representatives in relation to matter affect¬ 
ing members of the Senate disclosed before an investigating committee of the House of 
Representatives. 

[The debate is found on page 1099 of the Congressional Globe, part 2, 3d sess. 42d Cong. ] 

Thursday, February 6, 1873. 

Mr. Stevenson submitted the motion that he be excused from service on the select com¬ 
mittee appointed under the resolution of the Senate of the 4th instant, to whom was re¬ 
ferred the communication of the House of Representatives in relation to matter affecting 
members of the Senate, disclosed before an investigating committee of the House of Rep¬ 
resentatives; and 

On the question to agree thereto, 

After debate, 

It was determined in the negative. 


974 SENATE ELECTION CASES. 

Mr. Stockton submitted the motion that he he excused from service on the said com¬ 
mittee; and 

On the question to agree thereto, 

After debate, 

It was determined in the negative. 

[The debate is found on pages 1136, 1137 of the Congressional Globe, part 2, 3d sess. 
42d Cong.] 

Monday, February 10,1873. 

Mr. Morrill, of Maine, submitted the following resolution; which was considered by 
unanimous consent, and agreed to: 

“ Resolved , That the select committee appointed to consider the evidence from the 
House of Representatives affecting certain members of the Senate be authorized to sit 
during the sessions of the Senate. 77 


Saturday, February 22, 1873. 

Mr. Morrill, of Maine, submitted the following resolution; which was read the first and 
second times by unanimous consent: 

“ Resolved , That there be paid, out of the contingent fund of the Senate, for expenses 
of the special committee of the Senate to whom was referred the communication of the 
House in relation to members of the Senate, the sum of $1,000, or so much thereof as may 
be necessary. 7 7 

The Senate proceeded to consider the said resolution as in Committee of the Whole; 
and no amendment being made, it was reported to the Senate. 

Ordered , That it be engrossed and read the third time. 

The said resolution was read the third time, by unanimous consent. 

Resolved , That it pass. 


Thursday, February 27, 1873. 

Mr. Morrill, of Maine, from the select committee to whom was referred the commu¬ 
nication of the House of Representatives of the 4th instant, in relation to certain mat¬ 
ter affecting members of the Senate, together with a copy of the evidence accompanying 
the same, submitted a report (No. 519) accompanied by the following resolution: 

“ Resolved , That James W. Patterson be, and he is hereby, expelled from his seat as 
a member of the Senate. 77 


Saturday, March 1, 1873. 

[A debate on the question of taking up the report of the committee for consideration is 
found on pages 2068, 2069 of the Congressional Globe, part 3, 3d sess. 42d Cong.] 

Monday, March 3, 1873. 

[A debate on the question of taking up the report of the committee for consideration is 
found on pages 2184, 2185 of the Congressional Globe, part 3, 3d sess. 42d Cong. ] 


[Special session of the Senate, March, 1873.] 

Friday, March 14, 1873. 

Mr. Anthony submitted the following resolution for consideration; which was ordered 
to be printed: 

“Whereas at the last session of the Senate a resolution was reported from the select 
committee on evidence affecting certain members of the Senate, ‘ that James W. Patter¬ 
son be, and he is hereby, expelled from his seat as a member of the Senate 7 ; and 

‘ ‘ Whereas it was manifestly impossible to consider this resolution at that session with¬ 
out serious detriment to the public business; and 

‘ ‘ Whereas it is very questionable if it be competent for the Senate to consider the same 
after Mr. Patterson has ceased to be a member of the body: Therefore, 

“ Resolved , That the failure of the Senate to take the resolution into consideration is 
not to be interpreted as evidence of the approval or disapproval of the same. 

“ Resolved , further , That Mr. Patterson have leave to make a statement, which shall be 
entered upon the Journal of the Senate and published in the Congressional Record. 77 

Tuesday, March 25, 1873. 

On motion by Mr. Anthony, the Senate proceeded to the consideration of the resolution 
submitted by him on the 14th instant, declaring that the failure of the Senate to consider 
the resolution for the expulsion of J. W. Patterson from the Senate shall not be inter- 


JAMES W. PATTERSON. 


975 


preted as evidence of the approval or disapproval thereof; and granting leave to Mr. 
Patterson to make a statement for publication in the Congressional Record; and, 
Pending debate, 

On motion by Mr. Chandler, the Senate proceeded to the consideration of executive 
business. 

[The debate is found on pages 193-197 of the Congressional Record, vol. i.] 

Wednesday, March 26,1873. 

On motion by Mr. Anthony, the Senate resumed the consideration of the resolution 
submitted by him on the 14th instant, declaring that the failure of the Senate to con¬ 
sider the resolution for the expulsion of J. W. Patterson from the Senate shall not be 
interpreted as evidence of the approval or disapproval thereof, and granting leave to Mr. 
Patterson to make a statement for publication in the Congressional Record; and 
The resolution having been amended on the motion of Mr. Morrill, of Maine, it was 
agreed to, as follows: 

‘ ‘ Whereas at the last session of the Senate a resolution was reported from the select com¬ 
mittee on evidence affecting certain members of the Senate, ‘ that James W. Patterson 
be, and he is hereby, expelled from his seat as a member of the Senate’; and 

“Whereas it was manifestly impossible to consider this resolution at that session with¬ 
out serious detriment to the public business; and 

‘ ‘ Whereas it is very questionable if it be competent for the Senate to consider the same 
after Mr. Patterson has ceased to be a member of the body: Therefore, 

“ Resolved , That the pamphlet entitled ‘Observations on the report of the committee of 
the Senate of the United States respecting the Credit Mobilier of America,’ submitted 
by Mr. Patterson, be received, filed, and printed with the report of said committee.” 
[The debate is found on page 204 of the Congressional Record, vol. i. ] 








■ 




. 



































. 


. 

* 







































TABLE OF OASES. 


Abbott, Ransom v . 

Addieks v. Kenney. 

Ady v. Martin. 

Allen, John B. 

Ames, Adelbert. 

Bateman, Ephraim. 

Baxter, Fish back, and Snow. 

Beckwith, Asahel C. 

Bell, Charles H. 

Benjamin, Judah P... 

Blair, Henry W. 

Bledsoe, Jesse. 

Blodgett, Norwood v . 

Blount and Cocke. 

Blount, William. 

Bogy, Louis V. 

Bragg, Clingman and. 

Breckenridge, John C. 

Bright, Jesse D. 

Bright, Fitch and, Lane and Mc¬ 
Carty v . 

Brown, Davis and. 

Butler, Corbin v . 

Caldwell, Pomeroy and. 

Call, Davidson v . 

Call, Wilkinson. 

Cameron, Simon. 

Carlile, Willey and. 

Chestnut, James, jr. 

Chilton, Horace. 

Claggett v. Dubois. 

Clark and Maginnis v. Sanders and 

Power. 

Clark, William A. 

Clark, Maginnis v . 

Clay and Fitzpatrick. 

Clayton, Powell. 

Clingman and Bragg. 

Corbett, Henry W. 

Corbin v. Butler. 

Cutler, Smith, and Hahn. 

Davidson v. Call. 

Davis and Brown. 

Dixon, Archibald. 

Dubois, Fred T. 

Dubois, Claggett v . 

Du Pont, Henry A. 

Eustis, J. B... 

Farrow, Whiteley and, v. Hill and 

Miller... 

Faulkner, Lucas v. . 

Fishback, Baxter, and Snow. 

Fitch and Bright, Lane and Mc¬ 
Carty v . 

S. Doc. 11-62 


Page. 


Fitzpatrick, Clay and. 951 

Gallatin, Albert. 157 

Garland, Jones and, v. MacDonald 

and Rice. 340 

Gilbert, Hart v . 378 

Goldthwaite, George. 384 

Griswold, Stanley. 174 

Grover, La Fayette. 661 

Hahn, Cutler and Smith and. 303 

Hamilton, Reynolds v . 381 

Hanna, Marcus A. 8.78 

Harlan, James. 235 

Hart v. Gilbert. 378 

Hemphill and Wigfall. 957 

Henderson, John A. 104 

Hill and Miller, Whiteley and Far¬ 
row v . 343 

Hill, Joshua. 343 

Hunter, Mason and. 957 

Ingalls, John J. 692 

Johns, Kensey. 1 

Johnson, Waldo P. 962 

Jones and Garland v. MacDonald 

and Rice. 340 

Kellogg, Spofford v . 481 

Kenney, Addieks v . 875 

Lamar, L. Q. C. 634 

Lane and McCartv v. Fitch and 

Bright..*. 244 

Lane, Stanton v . 276 

Lanman, James. 5 

Lapham and Miller. 697 

Louisiana cases. 481 

Lucas v. Faulkner. 722 

MacDonald and Rice, Jones and 

Garland v . 340 

McMillen, Ray v . 481 

McMillen v. Pinch back. 481 

Maginnis, Clark and, v. Sanders 

and Power. 727 

Magnums v. Clark. 143 

Mallory, Yulee v _ 1 . 223 

Mallory and Yulee. 951 

Manning, Thomas C. 481 

Mantle, Lee. 52 

Marr, Robert H. 481 

Marshall, Humphrey. 168 

Martin, Adyv . 812 

Marvin v. Osborn. 341 

Mason and Hunter. 957 

Matthews, Stanley. 670 

McCarty, Lane and, v. Fitch and 

Bright. 244 

McConnell, Shoup and. 761 


977 


Page. 

396 

875 

812 

85 

375 

176 

298 

83 

26 

951 

36 

175 

389 

173 

929 

609 

957 

959 

964 

244 

951 

637 

426 

806 

805 

264 

273 

957 

48 

764 

727 

906 

143 

951 

444 

957 

89 

637 

306 

806 

951 

13 

763 

764 

818 

481 

343 

722 

298 

244 






































































































978 


TABLE OF CASES. 


Page. 

Miller, Hill and, Whiteley and 


Farrow v . 343 

Miller, H. V. M. 343 

Miller, Lapham and. 697 

Mitchel, Sebastian and. 957 

Morgan, John T. 636 

Nicholson, A. O. P. 957 

Niles, John M. 216 

Norwood v. Blodgett. 389 

Csborn, Marvin v . 341 

Patterson, David T. 329 

Patterson, James W. 973 

Payne, Henry B. 700 

Phelps, Samuel S. 16 

Pinchback, McMillen v . 481 

Polk, Trusten. 960 

Pomeroy and Caldwell. 426 

Potter v. Robbins.. 179 

Powell, Lazarus W. 967 

Power, Sanders and, Clark and 

Maginnis v . 727 

Quay, Matthew S. 107 

Ransom v. Abbott. 396 

Ray v. McMillen. 481 

Reese, Warren T. 817 

Revels, H. R. 370 

Reynolds v. Hamilton. 381 

Rice, Henry M. 949 

Rice, MacDonald and, Jones and 

Garland v . 340 

Roach, William N. 809 

Robbins, Potters. 179 

Sanders and Power, Clark and 

Maginnis v . 727 

Scott, Nathan B. 888 


Sebastian and Mitchel. 

Segar and Underwood. 

Sevier, Ambrose H. 

Shields, James (Illinois). 

Shields, James (Minnesota). 

Shoup and McConnell. 

Simmons, James F. 

Smith, John. 

Smith, Samuel. 

Smith, Cutler and, and Hahn .... 

Snow, Fishback, Baxter and. 

Spencer, George E. 

Spofford v. Kellogg. 

Stanton v. Lane. 

Stark, Benjamin. 

Stockton, John P. 

Sykes v. Spencer. 

The Louisiana cases, 1873-1880_ 

Thomas, Philip F. 

Toombs, Robert. 

Tracy, Uriah. 

Trumbull, Lyman «. 

Turpie, David. 

Underwood, Segar and. 

Whiteley and Farrow v. Hill and 

Miller. 

Wigfall, Louis T. 

Wigfall, Hemphill and. 

Willey and Carlile. 

Williams, Jared W. 

Winthrop, Robert C. 

Wood, Andrew T. 

Yulee r. Mallory.. 

Yulee, Mallory and. 


Page. 

957 

310 

7 

218 

267 

761 

970 

934 

4 

306 

298 

611 

481 

276 

284 

322 

611 

481 

333 

951 

3 

228 

719 

310 


343 

954 

957 

273 

23 

10 

103 

223 

951 



































































INDEX. 


ACT OF 1866. 


1. An election by a convention composed of a majority of one house of a State legis¬ 

lature and less than half of the members of the other, the latter house having 
adjourned for the day, held invalid.— James Harlan , 235. 

2. An election at an adjourned meeting of a convention composed of a minority of 

the members of one house of the State legislature but of a majority of the 
members of the two houses, held valid.— Fitch and Bright , 244. 

3. A concurrent majority of each house of the legislature not necessary for an elec¬ 

tion under the law of Pennsylvania or the practice under the constitution.— 
Simon Cameron, 264. 

4. A Senator elected by a joint convention on the third day after the “second 

Tuesday after its organization,” the preceding days being occupied by the 
elections of Senators to till existing vacancies, held dulv elected.— Hart vs. 
Gilbert, 378. 

5. Act of 1866 held designed only to determine when proceedings for the election of 

Senators should begin and not to require action on the same day in regard to 
every Senator to be elected.— Hart vs. Gilbert, 378. 

6. Senator elected by a legislature, at the first session after its organization, admit¬ 

ted, though that legislature had another session before the term for which he 
was elected began.— Reynolds vs. Hamilton, 381. 

7. A legislature elected previous to the expiration of a Senatorial term, though it 

does not convene nor organize until after the expiration of the term, is the 
legislature “chosen next preceding the expiration.”— Charles H. Bell, 26; 
Henry W. Blair, 36; Norwood x s. Blodgett , 389; John A. Henderson , 104. 

8. A Senator elected by a joint convention comprising a majority of the members of 

the legislature, but not a majority of each house, and in which one house refuses 
to take part, admitted.— James B. Eustis, 481. 

9. A Senator elected by a joint convention comprising less than a quorum of one 

house but a majority of all the members of both houses, admitted.— Spofford 
vs. Kellogg, 567. 

10. Report made in favor of claim of person elected by a majority of the members cer¬ 

tified by the proper authority as duly elected, though by less than a majority 
of all the members to be chosen.— Corbin vs. Butler, 637. 

11. The fact that a legislature did not proceed on the second Tuesday after notice of 

a vacancy to vote in each branch to fill the vacancy held not to deprive the 
legislature of its right to elect.— Lapham and Miller, 697. 

12. The failure of a quorum of one branch to be present on one of the days when the 

joint convention meets for the election of Senators, no election resulting on 
that day, held not to invalidate an election subsequently made.— Lapham and 
Miller, 697. 

13. A majority of the whole legislature not necessary to an election, a quorum of each 

house being present and a majority of that quorum actually voting for the 
members elected.— Lapham and Miller, 697. 

14. A legislature convened in special session by proclamation of the governor, under 

a power to convene the legislature for purposes mentioned in the proclama¬ 
tion, is bound to elect a Senator to fill a vacancy, though that is not one of the 
specified objects of the proclamation.— Lucas vs. Faulkner, 722. 

15. A branch of a State legislature having a presiding officer ex officio and a clerk pro 

tempore, the members being sworn, is “organized” within the meaning of the 
act regulating the time of electing Senators.— Clagett vs. Dubois, 764. 

16. A Senator elected by a joint convention, composed of a majority of all the members 

of thb legislature, but not of a majority of the members of each house, held 
duly elected, the joint convention being a body distinct from either house, 
with a quorum of its own.— Davidson vs. Call, 806. 

See States in Rebellion. 




979 



980 


INDEX. 


ACTING GOVERNOR. 

See Legislature, 15. 

Lieutenant-Governor, 2. 

ANTICIPATION OF VACANCY. 

See Appointments by Executives of States 2, 3, 4, 7. 

APPOINTMENTS BY EXECUTIVES OF STATES. 

List of appointments prior to March 3, 1903, 146-155. 

1. Senator appointed to fill a vacancy after a session of the legislature, which failed 

to fill the vacancy, not entitled to the seat.— Kensey Johns , 1; James Lanman, 
5; Samuel S. Phelps , 16; Lee Mantle , 52; A. C. Beckwith , 83; John B. Allen , 85; 
Henry W. Corbett , 89; Matthew S. Quay , 107. 

2. Senator appointed during a recess of the legislature and in anticipation of a va¬ 

cancy entitled to the seat.— Uriah Tracy, 3. 

3. Senator appointed in anticipation of a vacancy not entitled to the seat.— James 

Lanman , 5. 

4. A vacancy occurring in consequence of a Senator from a newly admitted State 

drawing a short term may be filled by executive appointment before the va¬ 
cancy occurs, no session of the legislature intervening.— Ambrose H. Sevier, 7. 

5. Senator appointed to fill a vacancy at the beginning of a term which the legisla¬ 

ture had had no opportunity to fill by election entitled to the seat.— Charles 
H. Bell, 26. 

6. Same question similarly decided.— Henry W. Blair , 36. 

7. Senator appointed in anticipation of a vacancy caused by the resignation of a 

Senator to take effect in the future admitted.— Horace Chilton, 48. 

See Resignation 1. 

Term of Senators Appointed. 

APPROPRIATIONS TO PAY COMPENSATION. 


See Compensation. 


ARGUMENTS BY CONTESTANTS. 
See Contestants. 


BAYARD, JAMES A., SENATOR FROM DELAWARE. 

Remarks of, in case of James Harlan, 235. 

BRIBERY. 

1. Charges that an election was procured by bribery investigated and held not to be 

sustained by proof.— Pomeroy and Caldwell, 426. 

2. Charges of corruption in the election of a Senator held not sustained.— Powell 

Clayton, 444. 

3. Charges of corruption found not proven.— George E. Spencer, 611. 

4. Charges of bribery and corruption not sustained.— La Fayette Grover, 661. 

5. Charges of bribery and corruption in the election of a Senator investigated and 

found that not enough votes were influenced thereby to affect the result, and 
that the Senator did not authorize the acts proved.— John J. Ingalls, 692. 

6. To deprive a member of his seat it must be shown that he was personally guilty of 

corrupt practices or that the corruption took place with his sanction, or a suf¬ 
ficient number of votes were corruptly changed to affect the result.— Henry B. 
Payne, 700. 

7. Charges that the election of a Senator was procured by bribery, held not to be 

sustained.— Marcus A. Hanna, 878. 

8. An election procured by bribery, held by a committee to be void.— William A. 

Clark, 906. 

See, also, Expulsion. 

Jurisdiction. 





INDEX. 


981 


BROWN, ALBERT G., SENATOR FROM MISSISSIPPI. 
Remarks of, in ease of James Shields, 270. 

BURROWS, JULIUS C., SENATOR FROM MICHIGAN. 

1. Remarks of, in case of Henry A. Du Pont, 866. 

2. Remarks of, in case of Matthew S. Quay, 129. 


CAFFERY, DONELSON, SENATOR FROM LOUISIANA. 

Remarks of, in case of Henry W. Corbett, 92. 

CHANDLER, WILLIAM E., SENATOR FROM NEW HAMPSHIRE. 

1. Remarks of, in case of William N. Roach, 810. 

2. Remarks of, in case of Ady v. Martin, 813. 

CITIZENSHIP. 

1. Burden of proof of citizenship rests on claimant to seat .—Albert Gallatin, 157. 

2. The certificate of a governor of a State that a person elected a Senator was a citizen 

of the State held sufficient, no term of residence or other qualifications being 
prescribed by the constitution or laws of the State .—Stanley Griswold, 174. 

3. The election of an alien by birth, naturalized October 21, 1840, and elected a Sen¬ 

ator January 13, 1849, held void, he not having been a citizen of the United 
States for the time required, at the commencement of the term for which he 
was elected .—James Shields, 218. 

4. A person of African blood whose right to a seat in the Senate was contested on 

the ground that he had not been nine years a citizen in 1870, admitted.— H. R. 
Revels, 370. 

5. An army officer born in Maine, who had some effects in his father’s possession 

there and had visited there, but owned no land and had no house in the State, 
elected from a State where he had held a military command for a short time, 
and where he had declared his intention of residing, admitted to his seat against 
the report of the committee .—Adelbert Ames, 375. 

CLINGMAN, THOMAS L., SENATOR FROM NORTH CAROLINA. 
Remarks of, in case of Louis T. Wigfall, 956. 


COMPENSATION. 

1. Senator appointed for a term expiring on the date of resignation of a Senator 

deceased before that date received compensation to the date of admission of the 
Senator elected to fill the vacancy caused by resignation.— Archibald Dixon, 
13, 15. 

2. A Senator appointed to fill a vacancy, who claimed the right to sit after the legis¬ 

lature had met and failed to fill the vacancy, received compensation and mileage 
to the date of the decision by the Senate.— Samuel S. Phelps, 16, 22. 

3. Senator admitted to seat paid, from contingent fund, mileage at the rate allowed 

for attendance at the session.— Chas. H. Bell, 26, 34. f 

4. Contestant allowed compensation and mileage from attendance to the decision of 

his claim.— Potter vs. Robbins, 179, 181. 

5. Contestant allowed mileage and compensation from the beginning of the session 

to the settlement of the claim.— Yulee vs. Mallory, 223, 227. 

6. Compensation of Senators from newly admitted States does not begin until the 

admission of the State.— James Shields, 267, 271. 

7. Compensation and mileage allowed contestant to date of settlement of contest.— 

Stanton vs. Lane, 276, 283. 

8. Mileage paid from contingent fund to claimants of seats.— Fishback, Baxter, and 

Snmv, 298, 304. 

9. The committee on the contingent fund has not the power to pass claims for mile¬ 

age made in behalf of claimants not members of Congress .—Fishback, Baxter, 
and Snow, 298, 304. 


982 INDEX. 

10. A claimant for a seat refused compensation and mileage.— Segar and Underwood, 

31 °. 313. 

11. Contestants allowed expenses of the prosecution of their claims.— Segar and Under - 

wood, 310, 314. 

12. Compensation paid contestants from the date of election to the decision of their 

case.— White I eg and Farrows vs. Hill and Miller , 343, 369. 

13. Compensation allowed from the date the State was declared entitled to represen- 

tatioji.— Adelhert Ames, 375, 377. 

14. Contestant granted mileage and compensation from the date of the presentation 

of his credentials to the decision of his case.— Hart vs. Gilbert , 378, 380. 

15. Compensation and mileage paid to unsuccessful contestant from beginning of 

term for which election was claimed to the decision of his case.— Norwood vs. 
Blodgett , 389, 394. 

16. Compensation of a Senator elected to fill a vacancy caused by the resignation of a 

Senator who had never taken his seat made to date from beginning of the 
term.— Ransom vs. Abbott, 396. 

17. Compensation and “one mileage each way” allowed contestant from the begin¬ 

ning of term to the decision of the case.— Ransom vs. Abbott, 396, 424. 

18. Contestants not seated paid a gross sum in lieu of compensation and mileage.— 

Ray vs. Me Milieu, 481, 535. 

19. Contestant allowed pay and mileage to the decision on his case.— McMillen vs. 

Pinchback, 538, 564. 

20. Compensation without mileage paid to the representatives of a contestant.— 

Spojford vs. Kellogg, 567, 607. 

21. Senator reimbursed for expenses necessarily incurred by him in defense of his 

title to his seat.— Spofford vs. Kellogg, 567, 607. 

22. Contestant paid a gross sum as compensation for expenses:— Thos. C. Manning , 

608. 

23. Proposition to pay a contestant a gross sum in lieu of compensation and mileage 

defeated.— Sykes vs. Spencer, 611, 630. 

24. Amount “actually and necessarily expended” by a Senator in maintaining his 

title to his seat paid him from the contingent fund.— Sykes vs. Spencer, 611, 
633. 

25. Contestant paid mileage and compensation from the beginning of the term to the 

decision of the case.— Sykes vs. Spencer, 630. 

26. Senator reimbursed from the contingent fund for the expenses of defending his 

title to his seat.— Corbin vs. Butler, 637, 660; Ady vs. Martin, 812, 816; Addicks 
vs. Kenney, 875, 877; Nathan B. Scott , 888, 904. 

27. Gross sum appropriated by law for the payment of contestant for his expenses in 

asserting his right to a seat in the Senate.— Corbin vs. Butler, 637, 660. 

28. Senator reimbursed from the contingent fund for expenses necessarily incurred 

in defending his title to his seat, which it was charged was obtained by cor¬ 
rupt means.— John J. Ingalls, 692, 696. 

29. Gross sum paid a contestant in lieu of compensation and expenses.— Lucas vs. 

Faulkner, 722, 726. 

30. Gross sum appropriated by law for the compensation of contestants for time and 

expenses.— Clark and Maginnis vs. Sanders and Power, 727, 760. 

31. ' Appropriation made to pay counsel fees and expenses of Senators in defending 

their title to their seats.— Clark and Maginnis vs. Sanders and Power, 727, 760. 

32. Contestant paid, by appropriation, a gross sum in compensation for all expenses.— 

Clagett vs. Dubois, 764, 804. 

33. Gross sum appropriated for reimbursement of a Senator for expenses in defend¬ 

ing his title to his seat.— Clagett vs. Dubois, 764, 804. 

34. Appropriation of a sum to reimburse contestant for expenses incurred in prose¬ 

cuting his claim.— Davidson vs. Call, 806, 808. 

35. Gross sum allowed a claimant of a seat in the Senate for time and expenses in 

prosecuting his claim.—Ace Mantle, 52, 81; Asahel C. Beckwith, 83, 84; John B. 
Allen, 85, 87; Ady vs. Martin, 812, 816; Addicks vs. Kenney, 875, 877; Nathan 
B. Scott, 888, 904; Maginnis vs. Clark, 143, 144. 

CONTESTANTS. 

1. Contestant given leave to be heard in person at the bar for tw r o hours.— Yulee vs. 

Mallory, 223, 226. 

2. Resolution offered to allow contestants seats on the flbor of the Senate and to be 

heard in their own behalf.— Lane and McCarthy vs. FUch and Bright, 244, 261. 

3. Contestant given leave to be heard at the bar.— Stanton vs. Lane, 276, 282. 


INDEX. 


983 


5. Motion to admit claimants to the floor laid on the table.— Fishback, Baxter, and 

Snow, 298,303. 

6. Credentials of one of two contestants withdrawn from the files at his request and 

because of his resignation pending the question of his right to the seat.— 
McMillen vs. Pinchback, 538, 559. 

7. Contestants elected by rival governments not seated through failure to determine 

claims of electing bodies .—Louisiana Cases, 481. 

8. Contestant allowed to speak in his own behalf .—Clagett vs. Dubois, 764, 801. 


CONVENTION, JOINT. 

1. Conduct of lieutenant-governor while presiding over, discussed.— Ady vs. Martin, 

2. Right of acting governor to vote for Senator in, affirmed.— Henry A. Da Pont, 818. 

See Act of 1866.' 

CORRUPTION. 

1. An arrangement with a rival candidate for his withdrawal from candidacy and 

support of his opponent, for a pecuniary consideration, declared by a com¬ 
mittee to be corrupt.— Pomeroy and Caldwell , 426. 

2. An election procured by corrupt means held by a committee to be void. — Pomeroy 

and Caldwell, 426. 

3. An election procured by corrupt practices held by a committee to be void.— William 

A. Clark, 906. 

See, also, Bribery. 

Expulsion, 12. 

COUNSEL. 

Senator allowed to appear by counsel to show cause why the report of the commit¬ 
tee recommending his expulsion should not be adopted.— John Smith, 934, 941. 

CREDENTIALS. 

/ 

1. Credentials held to present a sufficient certificate of the executive of the State under 

its seal and countersigned by the secretary of state. —Shoup and McConnell , 761. 

2. Credentials presented and ordered to lie on the table pending discussion of the 

right of a claimant to a seat in the Senate.— Warren T. Reese, 817. 

See, also, Prima Facie Title, 

Reconstruction, 

States Newly Admitted, 1. 

CRIMES. 

Whether the commission of a criminal offense by a person before his election as a 
Senator furnishes ground for his expulsion from the Senate, debated but not 
decided.— William N. Roach, 809. 

CRITTENDEN, JOHN J., SENATOR FROM KENTUCKY. 

1. Remarks of, in case of Lyman Trumbull, 232. 

2. Remarks of, in case of James Shields, 269. 

DECISION. 

Of question of right to a seat in the Senate when once made will not afterwards be 
disturbed.— Henry A. Du Pont, 818; Addicks vs. Kenney, 875. 

DISABILITIES. 

The fact that a person is under political disabilities at the time of his election as 
Senator does not make his election void.— Ransom vs. Abbott, 396. 


984 


INDEX. 


DISLOYALTY OF SENATORS. 

1. Senator-elect charged with disloyalty to the United States admitted.— Benjamin 

Stark, 284. . , 

2. A person elected as Senator, who had voluntarily given aid, counsel, and encour¬ 

agement to persons engaged in armed hostility to the United States, refused 
admission.— Philip F. Thomas, 333. 

See, also, Expulsion, 1, 2,5, 6, 7, 8, 9,10,11. 

DOOLITTLE, JAMES R., SENATOR FROM WISCONSIN. 

1. Remarks of, in case of Segar and Underwood, 313. 

2. Remarks of, in case of Philip F. Thomas, 336. 

DUBOIS, FRED T., SENATOR FROM IDAHO. 

Remarks of, in case of John B. Allen, 87. 

EDMUNDS, GEORGE F., SENATOR FROM VERMONT. 

Remarks of, in case of Henry W. Blair, 44. 

ELECTION OF SENATORS. 

Legality and regularity of proceedings in, discussed.— Ady vs. Martin, 812. 

See, also, Act of 1866. 

Bribery. 

Corruption. 

Fraud. 

Jurisdiction. 

Legislature. 

State regulation of election. 

States in rebellion. 

Time for election of Senators. 

Validity of election. 

EXECUTIVES OF STATES, APPOINTMENTS BY. 

See Appointments by Executives of States. 

EXPENSES OF CONTEST. 

See Compensation. 

EXPULSION OF SENATORS. 

1. A Senator found guilty of a “ high misdemeanor,” having attempted to seduce an 

officer of the United States from his duty and to alienate the Indians, expelled.— 
William Blount, 929. 

2. A Senator charged with connection with the conspiracy of Aaron Burr and indicted 

for treason, held by a committee guilty of conduct incompatible with his sta¬ 
tion as a Senator, but not expelled for lack of necessary majority. —John Smith, 
934. 

3. Testimony against a Senator charged with fraud and extortion prior to his elec¬ 

tion found not to sustain any allegation of criminality, or to show anything 
to disqualify him for a seat in the Senate.— Henry M. Rice, 949. 

4. Senators having “withdrawn” from the Senate, their seats were declared vacant 

and their names omitted from the roll.— Jefferson Davis et al., 951. 

5. Senators engaged in a conspiracy for the destruction of the Union, or who, with 

full knowledge of the conspiracy, had failed to advise the Government of it, 
expelled.— James M. Mason et al., 957. 

6. Senator who had “joined the enemies of his country” expelled.— John C. Breck¬ 

inridge, 959. 

7. Resolution for the expulsion of a Senator who had declared in debate that he 

owed no allegiance to the Government, referred to a committee.— Louis T. 
Wigfall, 954. 


INDEX. 


985 


8. A Senator who had written a letter containing expressions disloyal to the United 

States expelled.— Trusten Polk, 960. 

9. A Senator alleged to have made disloyal speeches, who failed to attend the Sen¬ 

ate, expelled.— Waldo P. Johnson, 962. 

10. A Senator who had written a letter addressed to the “ President of the Confeder¬ 

ation of States,” and commending to his consideration a gentleman who wished 
to dispose of an improvement in firearms, expelled.— Jesse I). Bright, 964. 

11. Resolution to expel a Senator on the ground that his “purposes if not his acts 

were treasonable” failed to pass.— Lazarus W. Powell, 967. 

12. Report of a committee on finding that a Senator had received money for using 

his influence to secure a contract for certain persons stating that as the act 
was not punishable or forbidden when committed, expulsion would be in the 
nature of an ex post facto penalty, not acted upon. —James F. Simmons, 970. 

13. Report of committee recommending the expulsion of a Senator, not acted on for 

want of time.— James W. Patterson, 973. 

14. A motion to expel a Senator found by a committee to be disloyal to the United 

States failed of passage.— Benjamin Stark, 284, 288 et seq. 

See, also, Bribery. 

Corruption. 

Counsel, 1. 

FLOOR OF THE SENATE. 

See Contestants. 

FORAKER, JOSEPH B., SENATOR FROM OHIO. 

Remarks of, in case of Henry W. Corbett, 99. 

FOSTER, LAFAYETTE S., SENATOR FROM CONNECTICUT. 
Remarks of, in case of Louis T. Wigfall, 954. 

FOURTEENTH AMENDMENT. 

See Reconstruction. 

FRAUD. 

Election of a legislature electing a Senator held void, by a committee, on account of 
fraud and new election recommended.— Bay vs. McMillen, 481. 

See, also, Bribery. 

Corruption. 

GOVERNOR. 

1. Right of acting governor to vote in joint convention for election of Senator 

affirmed.— Henry A. Du Pont, 818. 

2. Right to revoke appointment by lieutenant-governor of Senator considered but 

not decided.— Maginnis vs. Clark, 143. 

See Appointments by Executives of States. 

GRAY, GEORGE, SENATOR FROM DELAWARE. 

Remarks of, in case of Henry A. Du Pont, 870. 

HILL, BENJAMIN H., SENATOR FROM GEORGIA. 

Remarks of, in case of Lapham and Miller, 698. 

HOAR, GEORGE F., SENATOR FROM MASSACHUSETTS. 

1. Remarks of, in case of Henry W. Blair, 39. 

2. Statement of, in case of David Turpie, 719. 

3. Remarks of, in case of Lee Mantle, 78. 

4. Remarks of, in case of Addicks v. Kenney, 876. 

5. Remarks of, in case of Matthew S. Quay, 125. 


986 


INDEX. 


INVESTIGATION OF CHARGES. 

See Bribery. 

Expulsion, 3. 

J URISDICTION. 

JURISDICTION. 

1. The Senate has no jurisdiction of a charge of perjury against a Senator, and the 

want of jurisdiction is not supplied by his consent to an investigation — 
Humphrey Marshall , 168. 

2. Charges of the use of corrupt means to secure an election will not be investigated 

where neither the nature of the means nor the time, place, or manner of using 
them are set forth, and it is not alleged that the member participated in the use 
of such means or knew of it.— Simon Cameron , 264. 

3. Election of members of a legislature claiming to elect a Senator, investigated, 

when two bodies claimed to be the legislature and elected Senators.— Ray vs. 
Me Mitten, 481. 

4. A memorial which charges corruption in the election of a Senator, but does not 

state what facts can be proved or indicate with any certainty the character of 
the evidence that may be produced, held not sufficient to warrant an investi¬ 
gation by the Senate.— Lewis V. Bogy, 609. 

5. Inquiry made into the title of members of a legislature where those titles are dis¬ 

puted and their presence is necessary to make a quorum.— Sykes vs. Spencer, 611. 

6. Charges of a Senator’s connection with frauds connected with the conduct and re¬ 

turns of elections in Louisiana investigated and found not sustained.— Stanley 
Matthews, 670. 

7. The allegation of mere rumors of bribery in the election of a Senator, unaccom¬ 

panied by evidence, is not sufficient to require investigation by the Senate.— 
Lapham and Miller, 697. 

8. No sufficient offer of evidence made to warrant an investigation by the Senate of 

charges of corruption in the election of a Senator.— Henry B. Payne, 700. 

9. The judgment of a branch of a State legislature as to the election of two of its 

members held conclusive on the Senate of the United States irrespective of the 
motives governing that judgment.— David Turpie, 719. 

10. Credentials of a Senator-elect whose title is disputed reported back to the Senate 

without action on the ground that the question could only be properly consid¬ 
ered during the term for which the election was claimed.— David. Turpie , 719. 

11. In a dispute as to which of two rival legislatures is the legislature, the merits of 

the question as to the election of the disputed members examined.— Clark and 
Maginnis vs. Sanders and Power, 727. 

12. It is not customary for the Senate to consider any questions arising on the cre¬ 

dentials of a Senator until the term for which he claims to be elected.— Fred. 
T. Dubois, 763. 

13. Doubt expressed on the right of the Senate to consider charges against a Senator 

whose term had expired. —James W. Patterson, 973. 

See also Bribery. 

Crimes. 

Res Adjudicata. 


LEGISLATURE. 

1. A legislature composed partly of persons holding office beyond the term for which 

they were elected for want of the election of successors under the law of 
Rhode Island held the legislature of the State and a Senator elected by it 
admitted .—Potter vs. Robbins, 179. 

2. Persons elected by a legislature set up and continued by sufferance of the mili¬ 

tary power in a State in insurrection not admissible to seats.— Fishbaclc, Bax¬ 
ter, and Snow, 298. 

3. Persons elected by a body claiming to be a legislature in a State, most of which 

was in insurrection, though the parts of the State represented in that legisla¬ 
ture were exempted in the President’s proclamation, not admitted .—Segar and 
Underwood, 310. 

4. Senators elected by a provisional government not admitted .—Jones and Garland 

vs. McDonald and Rice , 340. 


INDEX. 


987 


5. A Senator chosen by a legislature elected by a compromise when there had been 

two rival governments, and while persons elected by each of these governments 
were claimants for seats, admitted after a decision that one of the claimants 
was not entitled.— James B. Eustis , 481, 580. 

6. A Senator elected by one of two bodies claiming to be the legislature of a State, 

and composed of persons holding certificates of election from the lawful return¬ 
ing board admitted, although the legislature electing him had ceased to have 
any existence subsequently.— Spofford vs. Kellogg , 567. 

7. A Senator elected by a body including persons lawfully elected, but not holding 

certificates of election, whose presence was necessary to make a quorum, 
admitted in place of a person elected by a body including persons not elected 
but holding proper certificates and necessary to make a quorum.— Sykes vs. 
Spencer , 611. 

8. A house of a State legislature recognized by the governor and other branches of 

the State government as legal, presided over by an officer recognized by the 
house as the proper presiding officer, must be taken by the United States Senate 
to be the lawful house for the election of Senators.— David Turpie , 719. 

9. State canvassing board held the proper body to issue certificates of election to 

members of the legislature, and the house including members holding those 
certificates, held the proper house and hence Senators elected by a convention 
of which it was a part admitted.— Clark and Maginnis vs. Sanders and Power> 
727. 

10. Legality and regularity of proceedings in election of Senator discussed but not 

decided.— Ady vs. Martin , 812. 

11. The fact that one of the two houses of a State legislature was never legally orga¬ 

nized does not give the governor of the State a right to appoint a Senator to 
fill a vacancy caused by the expiration of a term and the failure of the legis¬ 
lature to elect.— Henry W. Corbett , 89. 

12. The legislature chosen next preceding the expiration of the term of a Senator 

did not meet until after the expiration of such term. Whether, under such 
circumstances, the governor had the right of appointment, debated but not 
decided.— John A. Henderson , 104. 

13. The decision of a branch of a State legislature as to the election and qualifications 

of its members, held conclusive on the Senate of the United States.— Nathan 
B. Scott , 888. 

14. Two members of one of the Houses of a State legislature accepted commissions in 

a regiment of volunteers, performed the duties and received the pay of officers 
of such regiment, but resigned their commissions before the next meeting of 
the legislature. It was held that the decision of the house to which said mem¬ 
bers belonged as to their right to a seat in the legislature was conclusive on the 
Senate of the United States.— Nathan B. Scott, 888. 

15. Right of acting governor to take part in proceedings and vote while the two 

houses of the legislature are in joint convention for the purpose of electing a 
Senator affirmed.— Henry A. Dupont, 818. 

16. Validity of election of members of legislature not inquired into by the Senate in 

case of contested election of a Senator.— Ady vs. Martin, 812; Addicks vs. Ken¬ 
ney, 875. 


See also Prima Facie Case, 3. 

State Regulation, 3. 

Time of Election, 1. 

LIEUTENANT-GOVERNOR. 

1. Conduct of, while presiding over joint convention for the election of Senator, dis¬ 

cussed .—Ady vs. Martin, 812. 

2. Right of, to appoint a Senator in the absence of governor, considered but not 

decided .—Maginnis vS. Clark, 143. 

MAJORITY. 

See Act of 1866. 

McCOMAS, LOUIS E., SENATOR FROM MARYLAND. 

Remarks of, in case of Nathan B. Scott, 901. 


INDEX. 




MILEAGE. 


See Compensation. 

MITCHELL, JOHN H., SENATOR FROM OREGON. 

1. Remarks of, in case of Lee Mantle, 72. 

2. Remarks of, in case of Henry A. Dupont, 858. 

OATH. 

Senator unable to take the oath prescribed by the act of July 2, 1862, admitted on 
taking a special oath.— Whiteley and Farrow vs. Hill and Miller , 343, 369. 

OFFENSES. 

See Crimes. 


ORGANIZATION OF LEGISLATURE. 
See Act of 1866. 


PETTITS, EDMUND W., SENATOR FROM ALABAMA. 

1. Remarks of, in case of Henry W. Corbett, 95. 

2. Remarks of, in case of Nathan B. Scott, 902. 

PIKE, AUSTIN F., SENATOR FROM NEW HAMPSHIRE. 

Remarks of, in case of Henry W. Blair, 42. 

PRIMA FACIE TITLE. 

1. Senator admitted as prima facie entitled.— Potter vs. Bobbins, 179. 

2. Senator admitted as prima facie entitled.— Graham N. Fitch, 244. 

3. A Senator elected by votes of members of a legislature alleged not to be entitled 

to seats, admitted as prima facie entitled.— George Goldthwaite, 384. 

4. Credentials in due form are not sufficient to establish a prima facie right to a seat 

when the right of the governor signing them to hold his office is disputed.— 
McMillen vs. Pinchback, 538. 

5. A Senator whose credentials were correct in form admitted, notwithstanding the 

charge that the government electing him was a usurpation.— L. Q. C. Lamar, 
634. 

Cf. Louisiana cases, P. B. S. Pinchback, 538. 

6. A Senator whose credentials were otherwise regular admitted as prima facie enti¬ 

tled notwithstanding an objection on the ground that the legislature electing 
him did not represent the people. —John T. Morgan, 636. 

7. Committee discharged from the consideration of the credentials of one of two con¬ 

testants and contestant sworn.— Corbin vs. Butler, 637. 

8. Report holding that swearing of a Senator on a prima facie case does not preclude 

investigation.— Corbin vs. Butler, 637, 643. 

9. A Senator whose credentials were regular, there being no dispute as to the 

authority of the governor or legislature and no contestant, admitted as prima 
facie entitled notwithstanding a protest from citizens of the State.— La Fayette 
Grover, 661. 

10. Senator admitted as prima facie entitled on a transcript of the record of the 
proceedings of the joint convention of the legislature, there being no dispute 
as to the facts.— Wilkinson Call, 805. 

PRITCHARD, JETER C., SENATOR FROM NORTH CAROLINA. 
Remarks of, in case of Henry A. Du Pont, 864. 


PRIVILEGES OF CONTESTANTS. 
See Contestants. 


INDEX. 


989 


PUGH, GEORGE E., SENATOR FROM OHIO. 

1. Remarks of, in ease of Lyman Trumbull, 234. 

2. Remarks of, in case of James Shields, 268. 

PUGH, JAMES L., SENATOR FROM ALABAMA. 

Remarks of, in case of Lee Mantle, 68. 

QUALIFICATIONS OF SENATORS. 

1. Person elected a Senator who had resided in different States during thirteen years, 

and had taken an oath of allegiance in one seven years before his election, 
held not “nine years a citizen of the United States” and not entitled to a seat 
in the Senate.— Albert Gallatin , 157. 

2. A Senator-elect ‘ ‘ laboring under mental and physical debility, but not of unsound 

mind,” admitted.— John M. Niles, 216. 

3. A judge elected for a term of nine years under a State constitution which declared 

him ineligible for any office of trust or profit in the United States during that 
term and one year thereafter, who had resigned his office, was elected a Sena¬ 
tor within the original term, but more than a year after resignation. Held y 
entitled to the seat.— Lyman Trumbull, 228. 

4. A Senator appointed to a military office in the service of the United States after his 

election to the Senate accepted the office, but resigned it before his credentials 
were presented. Admitted against the report of the committee.— Stanton vs. 
Lane, 276. 

5. The election of a person who was under political disabilities at the time of his elec¬ 

tion is not void, and the candidate receiving the next highest number of votes 
is not therefore entitled to the seat.— Ransom vs. Abbott, 396. 

6. A person accused of violating R. S., secs. 1781 and 1782, is not disqualified from 

holding the office of Senator unless he has been convicted of such violation.— 
Lapham and Miller, 697. 

7. The fact that a candidate holds an office under a State constitution which declares 

him ineligible to any other office during the term does not invalidate his elec¬ 
tion.— Lucas vs. Faulkner, 722. 

See also Citizenship. 

Disloyalty, 2. 

QUORUM OF LEGISLATURE. 

The right to forcibly detain a member of a legislature to make a quorum discussed 
and held by a committee good.— Spofford vs. Kellogg, 567, 571. 

See also Act of 1866. 

RECONSTRUCTION. 

1. The “adoption” of the thirteenth and fourteenth amendments to the Constitution 

by the legislature of Florida held sufficient ratification, and a Senator subse- 
sequently elected by the legislature admitted.— Marvin vs. Osborn, 341. 

2. A Senator elected before a State was declared entitled to representation not ad¬ 

mitted.— Marvin vs. Osborn, 341. 

3. Senators elected by a legislature which included members whose right to sit had 

been challenged on the ground of disqualification under the fourteenth amend¬ 
ment of the Constitution, but who were declared qualified by the legislature, 
admitted to seats.— Whiteley and Farrow vs. Hill and Miller, 343. 

4. Report .asserting the right of the Senate to investigate the qualifications of mem¬ 

bers of a legislature in determining whether the legislature had complied with 
the act authorizing it to sit, and hence to elect Senators.— Whiteley and Farrow 
vs. Hill and Miller , 343, 344. 

5. A Senator whose credentials were signed by an army officer as provisional gov¬ 

ernor of a State admitted.— H. R. Revels, 370. 

6. Subsequent recognition by Congress of the right of a State to representation 

under a constitution in pursuance of which a legislature was organized and 
elected Senators, held to relate back and make valid the Senators’ election.— 
Hart vs. Gilbert, 378. 

To the same effect, Reynolds vs. Hamilton, 381. 

See also Citizenship. 

Legislature. 


990 


INDEX. 


RECONSIDERATION. 

1. Vote reconsidered to allow a member whose title was in question to be heard.— 
Jared It. Williams, 23, 25. 


RES ADJUDICATA. 

1. After a decision of the Senate in favor of the title of persons claiming seats, an 

election of others by the State legislature is void, the decision of the Senate 
being “conclusive upon the legislature and all persons acting under their 
authorily, as well as on the Senators named in the resolution.’’— Lane and 
McCarty vs. Fitch and Bright , 244, 255. 

2. A report of a committee of another Congress in favor of reopening on the ground 

of newly discovered evidence the question of a member’s right to a seat once 
decided not acted upon. —Spofford vs. Kellogg, 567, 589. 

3. A decision by the Senate that a member was entitled to his seat held final.— 

George E. Spencer, 611, 633. 

4. A decision by the Senate that a contestant is not entitled to a seat held final.— 

Henry A. Du Pont, 818, 873; Addicks vs. Kenney, 875. 


See also Prima Facia Case, 8. 


RESIGNATION. 

1. The title of a Senator elected to fill a vacancy caused by the resignation of a 

Senator to take effect in the future can not be defeated by the death of the 
resigning Senator before the date fixed for resignation.— Archibald Dixon, 13. 

2. Resignation may be made to take effect in the future.— Horace Chilton, 48. 

3. A letter of resignation addressed to the executive of a State to take effect on a 

future day and withheld by the executive until after that day does not vacate 
the member’s seat, though the Senate have unofficial information of the elec¬ 
tion of a successor.— Jesse Bledsoe, 175. 

See also Contestants, 6. 

SAULSBURY, WILLARD, SENATOR FROM DELAWARE. 

Remarks of, in case of Willey and Carlile, 274. 

SEWARD, WILLIAM H., SENATOR FROM NEW YORK. 

Remarks of, in case of James Harlan, 236. 

SHERMAN, JOHN, SENATOR FROM OHIO. 

Remarks of, in case of Segar and Underwood, 312. 

SPOONER, JOHN C., SENATOR FROM WISCONSIN. 

Remarks of, in case of Henry W. Corbett, 97. 

STARE DECISIS. 

1. Doctrine applied.— Henry A. Du Pont, 818, 873. 

2. Doctrine discussed.— Henry A. DuPont, 818, 873; Act dicks vs. Kenney, 8^5; Henry 

W. Corbett, 89. J 


STATE REGULATION OF ELECTION. 

1. A resolution declaring a majority of all the members-elect of the legislature 

necessary for all elections; held joint in fact though not in form, and sufficient, 
though without the forms of law usual in legislation, to regulate the manner 
of holding elections.— Yulee vs. Mallory, 223. 

2. A failure to comply with merely directory provisions of a State statute regulating 

the choice of Senators does not vitiate an election, there being no objection to 
the omission.— Simon Cameron, 264. 




INDEX. 


991 


3. A rule adopted by a joint convention for the election of a Senator, making a plu¬ 

rality of votes sufficient for an election, decided not valid and the person 
elected rejected.— John P. Stockton, 322. 

4. Report of committee holding a joint convention a “legislature” sufficiently to 

prescribe rules for the election of a Senator, overruled and the Senator elected 
in accordance with the rules of the convention rejected.— John P. Stockton, 322. 

STATES IN REBELLION. 

1. Senators elected by a legislature of a State in rebellion to fill a vacancy caused 

by the withdrawal of Senators, admitted, though elected before their prede¬ 
cessors were expelled.— Willey and Carlile, 273. 

2. A person elected by a legislature claiming to be loyal in a State declared in insur¬ 

rection refused admission until action on the recognition of that legislature by 
Congress.— Fishback, Baxter, and Snow, 298, 302. 

3. Persons elected as Senators from a State declared to be in insurrection refused 

admission until recognition of the government electing them by Congress.— 
Cutler and Smith and Hahn, 306. 

4. A Senator who had completed a term of office and become a candidate for reelec¬ 

tion in a State in insurrection, with a view to aiding and protecting loyal 
people, admitted on taking the oaths required by the laws and Constitution.— 
David T. Patterson, 329. 

5. Senators admitted although their credentials were alleged not to conform in some 

particulars to the requirements of the act of 1866, and the election was claimed 
to have taken place before the State was declared entitled to representation.— 
Jones and Garland vs. McDonald and Rice, 340. 

See Legislature, 6. 

Validity of Election, 2. 

STATE GOVERNMENT. 

A government maintained by and not in subordinatiomto the military power is such 
a goverment as is entitled to representation in the Senate.— Fishback, Baxter, 
and Snow, 298. 

See also Legislature, 1. 

STATES NEWLY ADMITTED. ' 

1. Persons claiming to be Senators by virtue of credentials antedating the admission 

of the State they claim to represent, held not entitled to seats.— Blount and 
Cocke, 173. 

2. Senator elected by a Territory after the passage of an enabling act refused admis¬ 

sion before the admission of the State.— James Shields, 267. 

See also Appointments by Executives, 4. 


STATUTES. 


See Act of 1866. 

Oath, 1. 

SUMNER, CHARLES, SENATOR FROM MASSACHUSETTS. 

1. Remarks of, in case of Segar and Underwood, 311. 

2. Remarks of, in case of Philip F. Thomas, 337. 

TERM OF SENATORS APPOINTED. 

1. A Senator appointed during a recess of the legislature entitled to hold his seat 

during the next session of the legislature unless the legislature should elect a 
Senator and the Senate should be officially notified of the fact .—Samuel Smith, 4. 

2. A Senator appointed to fill a vacancy entitled to sit until the legislature at its next 

session elect a person to fill the unexpired term and the Senate be notified of 
his acceptance. Presentation of his credentials is such notice .—Robert C. Win- 
throp, 10. 


INDEX. 


992 

3. A Senator appointed for a term ending on the date fixed for his resignation to fill 

the vacancy caused by the death of the resigning Senator admitted to the seat 
and received compensation to the date of the admission of the successor elected 
by the legislature.— Archibald Dixon, 13. 

4. A Senator appointed to fill a vacancy not entitled to the seat after the adjournment 

of the legislature without electing a person to fill the unexpired term.— Samuel 

S. Phelps, 16. 

5. A Senator appointed to fill a vacancy claimed title to the seat after the legislature 

had been adjourned “to the last Wednesday in May next”—a period of ten 
months—no Senator being elected: Held that the adjournment was an adjourn¬ 
ment sine die and the right of representation under the appointment had ex¬ 
pired.— Jared W. Williams, 23. 

TIME FOR ELECTION OF SENATORS. 

The legislature whose election next precedes the expiration of the term held the 
proper legislature to elect for the succeeding term.— Charles H. Bell, 26; Henry 
W. Blair, 36. 

See, also, Act of 1866, 7, 15. 


TOOMBS, ROBERT, SENATOR FROM GEORGIA. 

Remarks * >f, in case of James Shields, 270. 

TRUMBULL, LYMAN, SENATOR FROM ILLINOIS. 

Remarks of, in case of Willey and Carlile, 274. 

TURPIE, DAVID, SENATOR FROM INDIANA. 

Remarks of, in case of Henry A. Du Pont, 861. 

VACANCY. 

See Appointments by Executives. 

Withdrawal of Senators. 

States in Rebellion. 

VALIDITY OF ELECTION. 

1. A member of a State legislature who votes for himself for Senator does not thereby 

invalidate the election, though his vote may be necessary for his election.— 
Ephraim Batemann, 176. 

2. A revolution in a State resulting in the overthrow of the legislature electing a 

Senator does not affect the right of that Senator to his seat. —Spofford vs. Kel¬ 
logg, 567. 

VANCE, ZEBULON B., SENATOR FROM NORTH CAROLINA. 
Remarks of, in case of Lee Mantle, 76. 


VICE-PRESIDENT. 


The Vice-President in the case of a tie voted on a question involving the right of a 
member to a seat.— Corbin vs. Butler, 637, 639; Spofford vs. Kellogg, 567, 586. 

VICKERS, GEORGE, SENATOR FROM MARYLAND. 

Remarks of, in case of H. R. Revels, 371. 

VOTE. 

The vote of a member whose title to his seat was disputed refused to be received by 
the Senate on the question of his right to sit. —John P. Stockton, 322. 


See, also, Contestants. 


INDEX. 


993 


WAIVER. 

Merely formal requirements of a State law governing the election of Senators may be 
waived by common consent .—Simon Cameron , 264. 

See , also , Jurisdiction, 1. 

WILLEY, WAITMAN T., SENATOR FROM WEST VIRGINIA. 
Remarks of, in case of Segar and Underwood, 311. 

WITHDRAWAL OF CONTESTANT. 

Claim of contestant withdrawn .—Corbin v. Butler , 637. 

WITHDRAWAL OF SENATORS. 

See Expulsion, 4, 5. 


S. Doc. 11-63 


O 







i 

u 






I 




# 









































































































































































































































































































- 



































































































































# 





















































































































































